Re: HK - [2005] WASAT 142

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: HUMAN RIGHTS

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION: RE: HK [2005] WASAT 142

MEMBER: MS F CHILD (MEMBER)

HEARD: 15 DECEMBER 2004

DELIVERED : 21 JUNE 2005

FILE NO/S: AD 691 of 2004
GU 305 of 2004

BETWEEN: RE: HK
Applicant

Catchwords:

Guardianship and administration - Need for a guardian - Represented person with cognitive impairment - Need for protection - Wishes of the represented person - Primary concern best interests - Role of guardian

Legislation:

Guardianship and Administration Act 1990 (WA), s 4, s 41(3), s 43(1)(b), s 44(5), s 51, s 64, s 70

Result:

The Public Trustee appointed plenary administrator for the estate of the represented person with review of the order in five years.
JWE appointed limited guardian with review of the order in two years.

Category: B

Representation:

Counsel:

Applicant: N/A

Solicitors:

Applicant: N/A

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

Nil

Case(s) also cited:

Nil

MS F CHILD (MEMBER):

REASONS FOR DECISION

Background

The applications in this matter were made by Vernon Brabazon, a social worker employed at the Collie Hospital who sought the appointment of a guardian and an administrator for HK, a 61‑year‑old woman who had been a patient at the hospital.
The applications were lodged with the Guardianship and Administration Board ("the Board") on 3 December 2004 and heard and determined on 15 December 2004 with orders for the appointment of JWE as limited guardian and the Public Trustee as plenary administrator for HK, with review of the guardianship order in two years and the administration order in five years.
The State Administrative Tribunal absorbed the jurisdiction and functions of the Board on 24 January 2005 and the reasons in this matter are now delivered by a member of the Tribunal who constituted the Board and who determined the applications.

The applications and evidence before the Board

The applicant sought orders pursuant to s 43 and s 64 of the Guardianship and Administration Act1990 (WA) ("the Act") appointing the Public Advocate as guardian and the Public Trustee as administrator for HK.
The applicant asked for an urgent hearing of the applications as HK's health was considered to be "rapidly deteriorating" and she was said to be at immediate risk in her living situation. The applications stated she was at risk of financial exploitation in the misappropriation of her social security income. The applications were accompanied by the medical and other professional reports referred to below. The applications were referred by the Board to the Public Advocate for investigation prior to the hearing.
Having considered the issues raised by the applicant and referred to in the reports, and the support for an urgent hearing of the applications by the Public Advocate, the Board shortened the time for giving notice of the hearing and dispensed with the requirement to give notice to all persons other than the applicant, HK and the Public Advocate, pursuant to section 41(3) of the Act.
The hearing of the applications was held in Bunbury and the applicant social worker, HK, MK her partner, and JE and JWE, attended. JE and JWE are the minister and his spouse from a local church that HK had attended for some years. The representative of the Public Advocate was contacted in the course of the hearing and made submissions by telephone.
According to the written applications, HK:
"resides in an abusive and controlling domestic situation of gross exploitation because of her very diminished physical and mental state. She frequently presents at hospital to escape the abuse because she has no money to placate her partner. Generally accepted that he forces her to hand over all her pension to support him."

and
"This lady needs to be forcibly placed into a secure care situation and a restraining order placed on her continued association with her present partner. She will certainly resist such an application and her diminished mental states [sic] ensures that she has nil insight into her circumstances. She accepts the abuse and denies that it happens. Her mental and physical state is that she can barely ambulate and is almost inarticulate or intelligible [sic]. Very frail. Her situation is critical and she is generally bed ridden when at home."

The applications were accompanied by reports from the following health professionals: Dr Saumitra Sekhar Seal, general practitioner, neurological nurse specialist Penny Hughes and occupational therapist Nick Simitsis.
The applications were tabled at the hearing. Other documents, including the integrated progress notes and emergency department notes were submitted by the applicant at the hearing and were referred to by him in his oral submissions.
According to Dr Seal's report dated 30 November 2004, he had known HK for one year and described a diagnosis of "Impaired cognitive functioning, borderline personality disorder". He stated that HK was "progressively getting worse" and described her as being incapable of making decisions about her personal health care, her living situation, and her financial affairs. He stated she was incapable of executing a valid enduring power of attorney. He also reported "Poor nutrition. Unsteady gait. Frequent hospital admission".
The report of Penny Hughes, neurological nurse specialist dated 11 November 2004 was of an ADAS cognitive assessment made of HK while she was a patient of the Collie Hospital on 22 October 2004. The report states that HK "scored badly" in the assessment … "indicating moderate to severe cognitive impairment". The report went on to state the following:
"This assessment leaves me with grave concerns as to her ability to manage her affairs effectively. She mentioned a few things to me during the assessment that concerned me immensely, two of the words used in the assessment are sandwich and meal each time these words were mentioned she responded by saying 'the only time I get a meal is when I am here in hospital' and 'I'm starving I haven't had a proper meal since I was last here'."
The occupational therapist Nick Simitsis reported on an assessment of independence level of HK undertaken while she was a patient at Hillview (Collie Health Service Nursing Home) on 1 December 2004 (the nursing home area of the hospital). The score indicated "moderate dependence":
"[HK] required supervision with bed and chair transfers, toilet transfers, continence, bathing, dressing, personal hygiene and assistance with ambulation and stair climbing."
The application stated that attempts to involve family members in the situation of HK had been unsuccessful. HK's brother had supported the applications being made but had not wanted to become involved. The applicant stated that HK's son was in prison and her daughter in South Australia had no connection with her. He considered that the partner was unsuitable and that there was no one in the life of HK who could assist her with decisions about her person and her finances.
In the hearing the applicant referred to 33 attendances at the Collie Hospital by HK in 2004 necessitating 10 admissions of her to the hospital. He stated that nursing staff had drawn his attention to her physical decline and frequency of falls and injuries. The staff at the hospital had a concern that her decline had been significant over the past four to five months with increased presentations to hospital and the "the level of self injury" presented. He referred to the emergency department notes submitted at hearing, which noted "falls", "head injuries", "bruising" and that HK was "malnourished" and afraid to go home to her partner.
The applicant stated that HK was reported to fall frequently in the streets and had been unable to get up and had "to crawl home". He stated that he had checked with the stores where HK had picked up groceries and they reported "minimal grocery purchases". These were not sufficient, in his view, for HK to sustain a healthy weight. He also stated that HK resisted attempts to assess her for access services for aged care and the appropriate pension entitlement, and had left hospital against medical advice. He stated that HK's health had "picked up a little bit" during her hospital admission.
He stated that the "hospital considered that it had a duty of care" to bring the applications due to the increasing physical decline of HK.
In the course of the hearing an entry in the integrated progress notes for 1 December 2004 was read into the record:
"Resident [HK] has stated to nurse at 12.20 hrs she is 'frantic' about her partner [MK] emptying her account using her keycard and number which are both together on the top of her cupboard."
The entry for the following day states:
"[HK] has been discharged home in the presence of [MK] – who said he would have her back in [two] hours ... signed discharge at her own risk".
It seems HK did not return to the hospital.
HK did not agree that she needed a guardian. She stated that her partner of 17 years, MK, cared for her. She rejected the applicant's suggestion that she may be entitled to a Disability Support Pension or to services to assist her.
HK agreed that she needed care and that she suffered frequent falls. She stated that she was very concerned about her well‑being and had presented to hospital when she needed treatment. She agreed she had been injured but stated that this was as a result of falls and when she had cut her hair. She objected to the attempt that had been made by hospital staff during her recent admission to transfer her to the nursing home section of the hospital, which had locked doors and windows. She believed that she had been put in hospital "by mistake" and perhaps tricked into going into that section of the hospital.
In response to the reference in the emergency department notes referred to by the applicant that she had been "scared to go home to [MK]" she said that she was not scared but "very cautious". She explained that she was cautious "Because [MK] didn't have no groceries to eat, and I wasn't going to …".
Later when it was put to her by the applicant that she was worried about going home if she had no tobacco she said "I don't like causing friction between … fight for him …" (transcript page 11). The transcript is incomplete but there is no doubt as to the meaning of these words that HK feared returning home.
JE supported the applications and stated that HK had not attended the church recently but the times she had attended she frequently showed injuries: "stitches in her head", "black eye, and other bruising". He stated that he did not know how these injuries had occurred. JE stated that he had seen HK fall in the street and taken away by ambulance. He was concerned about her "very frail state of health".
JWE supported the applications and later in the hearing proposed herself as guardian. It was she who had initiated the Aged Care Assessment Team assessment and she had attempted to involve services in the care of HK. She stated she was very concerned about HK's health.
JE related how a parishioner had come to him concerned that HK was at the parishioner's house again seeking cigarettes for her partner. The parishioner reported that she had been approached by HK insisting on help, as she could not return home without cigarettes.
In response to JE's comments HK stated that she had not wanted to go home without cigarettes for her partner and she had attempted to obtain them at the local shop but had no money. She also stated that on this occasion that she had been propositioned by a taxi driver for sex in exchange for a packet of cigarettes.
MK the partner of HK stated that he supported the need for the appointment of a guardian during the hearing. There is some doubt that he understood the implications of this despite an explanation being given. He stated that he did not allow HK next to the kettle or the frying pan because they were hot. He stated that he was the carer and that family members were supportive of his care. He did not agree that HK's health had deteriorated. He stated that HK did not smoke and the cigarettes purchased by her were for him. He stated that their bills were automatically deducted from the Centrelink payments.
In response to a question directed to HK as to what would happen if she wasn't cautious MK interjected "Don't worry. I wouldn't belt her" (transcript page 12).

Legislation

Before a guardian can be appointed under s 43 the Board must be satisfied that the person for whom the application is made has attained the age of 18 years; is 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; and is in need of a guardian.
Before an administrator may be appointed the Board must be satisfied the person is unable by reason of mental disability to make reasonable judgments in respect of matters relating to all or any part of her estate; and is in need of an administrator of her estate.
Section 43 and s 64 of the Act, for the appointment of a guardian and administrator respectively are expressly subject to s 4 of the Act which provides:
"4(1) In the performance of its functions the Board shall observe the principles set out in subsection (2).
(2)(a)The primary concern of the Board shall be the best interests of any represented person, or of a person in respect of whom an application is made.
(b)Every person shall be presumed to be capable of —
(i)looking after his own health and safety;
(ii)making reasonable judgments in respect of matters relating to his person;
(iii)managing his own affairs; and
(iv)making reasonable judgments in respect of matters relating to his estate,
until the contrary is proved to the satisfaction of the Board.
(c)A guardianship or administration order shall not be made if the needs of the person in respect of whom an application for such an order is made could, in the opinion of the Board, be met by other means less restrictive of the person's freedom of decision and action.
(d)A plenary guardian shall not be appointed under section 43(1) if the appointment of a limited guardian under that section would be sufficient, in the opinion of the Board, to meet the needs of the person in respect of whom the application is made.
(e)An order appointing a limited guardian or an administrator for a person shall be in terms that, in the opinion of the Board, impose the least restrictions possible in the circumstances on the person's freedom of decision and action.
(f)In considering any matter relating to a represented person or a person in respect of whom an application is made the Board shall, as far as possible, seek to ascertain the views and wishes of the person concerned as expressed, in whatever manner, at the time, or as gathered from the person's previous actions."
Guidance as to the meaning of "best interests" is provided in s 51 (the terms of which are mirrored in s 70 in respect of the actions of an administrator). The section provides:
"[A] guardian acts in the best interests of a represented person if he acts as far as possible ¾
(a)as an advocate for the represented person;
(b)in such a way as to encourage the represented person to live in the general community and participate as much as possible in the life of the community;
(c)in such a way as to encourage and assist the represented person to become capable of caring for himself and of making reasonable judgments in respect of matters relating to his person;
(d)in such a way as to protect the represented person from neglect, abuse or exploitation;
(e)in consultation with the represented person, taking into account, as far as possible, the wishes of that person as expressed, in whatever manner, or as gathered from the person's previous actions;
(f)in the manner that is least restrictive of the rights, while consistent with the proper protection, of the represented person;
(g)in such a way as to maintain any supportive relationships the represented person has; and
(h)in such a way as to maintain the represented person's familiar cultural, linguistic and religious environment."
In determining the appropriate appointment of a guardian s 44(5) of the Act is relevant to this matter in that unless she is appointed to act jointly with another person or persons, the Public Advocate shall not be appointed as a guardian unless there is no other person suitable and willing to act.

Findings

Capacity

In respect of the administration application the Board was satisfied on the medical and capacity assessment evidence that HK is unable by reason of her cognitive impairment of making reasonable decisions about her financial affairs.
In respect of the guardianship application, the assessment by the occupational therapist indicates that HK is dependent for many of her activities of daily living. She was assessed as requiring supervision, support and prompting. It follows from this that her care needs may not be able to be met outside a residential care setting or without intensive support services, which she is reported to have refused. HK appears to have little appreciation of her level of disability, her need for care and the risks faced by her and the consequences of the frequent head injuries sustained by her. She is incapable of looking after her own health and safety.
Despite her expressed fear of returning to her partner she has been discharged to his care at her insistence. Although it may be that the history of HK's relationship has been of violence and she has had a pattern of returning to her partner, this would not of itself allow the making of a guardianship order. It is HK's loss of capacity to make reasonable judgments in relation to her person that enlivens the power to make the order.
The ADAS‑cog capacity assessment assesses HK's level of cognitive impairment as "moderate to severe" indicating that she unable to make reasonable decisions about her living arrangements and lacks the capacity to protect herself. The combination of her physical frailty and her cognitive impairment make her highly vulnerable and in need of oversight care and control in the interests of her health and safety.
Based on the medical and other professional reports and the evidence given at the hearing the Board finds find that HK is person for whom a guardianship order may be made in that all three criteria in s 43(1)(b) are satisfied.

Need

There is a need for an administrator to be appointed. HK lacks the capacity to manage her finances in her best interests and she cannot execute a valid enduring power of attorney.
Based on the evidence before the Board it is more probable than not that the residue of HK's funds after Centrelink deductions were applied to the needs of her partner, (particularly his need for cigarettes) to the detriment of HK. It seems likely that this included purchase of cigarettes in preference to the purchase of food to the point where the medical evidence was that she was malnourished. Evidence was also provided of the anxiety experienced by HK about the partner "clearing out her account". However she was unable to act to protect her own interests when she was later discharged to his care. The risk of financial abuse can only be addressed by the appointment of an administrator to receive the income of HK and apply it to her meet her needs. There is no less restrictive means of achieving this.
In respect of the need for a guardian the applicant submits that the living situation of HK is one of gross exploitation and physical risk.
Even if the partner did not represent a positive risk to HK due to domestic violence, the Board is satisfied that due to her physical dependence, her falls risk and her cognitive impairment that there is a need for lawful authority to make decisions about where HK should live. Her current care needs are not being met in her present living situation with MK and she is not capable of making this decision herself. Her partner is unwilling or unable to understand her level of disability and dependence.

In respect of the allegations of domestic violence the Board finds that it is more likely than not that HK has either been subject to, or fears violence from her partner or both. This finding is based on evidence provided by HK during the hearing and against the background of the hospital notes submitted at hearing to which the applicant referred. Where the evidence of the applicant conflicted with that of the partner in relation to this and other issues the evidence of the applicant is preferred.
The occasion when HK was moved to the Hillview area of the hospital is relevant to the question of a need for a guardian. It is accepted that the proposed move was motivated by a genuine concern by hospital staff for HK and was in line with what was understood to be the proper exercise of their duty of care to her. However, there was no lawful authority to hold HK against her will and in the face of her expressed wish to leave, the hospital was required to discharge her and did so.
This incident may have the unfortunate consequence that HK may in the future be reluctant to attend the hospital, which has been both a refuge for her and a provider of primary health care.
In view of the above it is the finding of the Board that HK is in need for a guardian with authority to decide where she is to live, with whom she is to live, to engage services on her behalf, to determine the contact she should have with others and to consent to treatment or health care on her behalf.

Appropriate appointment

JWE proposed herself as guardian during the hearing and a brief adjournment was taken during which the Public Advocate discussed the role of the guardian with her by telephone.
The Public Advocate supported the appointment of JWE. The Board accepted the submissions of the Public Advocate that JWE was suitable for the appointment as she had acted as an advocate in the past for HK in relation to the provision of services, and had an appreciation of the very difficult decisions and challenges associated with the appointment. The location of JWE in the town where HK lived together with her local knowledge and past association with HK were considered important to the ability of the guardian to work in close consultation with HK and act as an advocate for her.
Although the applicant had originally sought the appointment of the Public Advocate as guardian he supported the appointment of JWE.
Since JWE was both suitable and willing to be appointed the Board may not appoint the Public Advocate (s 44(5)).

Wishes of the represented person

The principles to be observed by the Board in s 4 referred to above, establish that the best interests of the represented person as the primary concern of the Board and direct the Board to ascertain the wishes of the represented person.
The wishes of the represented person were clear from the hearing: she did not want a guardian, she wanted to be cared for by her partner and she did not want to live in residential care particularly the secure facility at Hillview. Her previous actions are also relevant to an understanding of her wishes – her relationship with her partner is of long standing.
In making the orders for the appointment of a guardian the Board primary concern is the best interest of HK. Having found that HK is incapable for the purposes of s 43(1)(b) to give effect to her wish not to have a guardian would not be consistent with her proper protection
The guardian is faced with the difficult task of balancing the perhaps competing obligations set out in s 51 in the performance of her functions in the best interests of HK. While HK may express a wish to live in the general community and to maintain her relationship with her partner without restriction, because of her incapacities the guardian is obliged to act in a manner to protect her from neglect, abuse or exploitation. The guardian is required to act in a way which is least restrictive of her rights but consistent with her proper protection.

Decision

The Public Trustee was appointed plenary administrator for the estate of HK with review of the order in five years. JWE was appointed limited guardian with review of the order in two years.
I certify that this and the preceding 13 pages comprise the reasons for decision of the Board.
______________________________
F Child, Member