Re Ipk
[2012] WASAT 130
•25 JUNE 2012
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: HUMAN RIGHTS
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: RE IPK [2012] WASAT 130
MEMBER: MS F CHILD (MEMBER)
HEARD: 10 MAY 2012
DELIVERED : 25 JUNE 2012
FILE NO/S: GAA 584 of 2012
EX PARTE
IPK
Represented Person
Catchwords:
Guardianship and administration - Review of guardianship order - Represented person with longstanding cognitive impairment - Continuing need for appointment of guardians - Reappointment of brother and sister of represented person as joint guardians
Legislation:
Guardianship and Administration Act 1990 (WA), s 43(1)(b), s 84
Result:
Guardians reappointed
Category: B
Representation:
Counsel:
Represented Person : N/A
Solicitors:
Represented Person : N/A
Case(s) referred to in decision(s):
Re IPK; Ex Parte DK [2011] WASAT 211
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
On review of an order, the Tribunal reappointed the brother and sister of the represented person as her joint guardians. They had been appointed some months before following an application by the represented person's daughter for her appointment as guardian.
On review of the order, the order was confirmed. One of the guardians and the Director of Nursing from the facility submitted that the orders were working well. No other proposals for alternate orders were before the Tribunal. Only the sister of the represented person (and one of her joint guardians) attended the hearing. The daughter of the represented person did not attend the hearing.
These reasons are provided at the request of the sister of the represented person (one of the joint guardians), as her brother, who was also appointed guardian, was unable to attend the review hearing.
Background
The background of this matter is set out in reasons published by the Tribunal as Re IPK; Ex Parte DK [2011] WASAT 211.
The summary of that decision is as follows:
1The daughter of a woman with a diagnosis of vascular dementia and dysphagia, or compromised swallow, applied for appointment as her mother's guardian. Having considered all the evidence the Tribunal found that, although she was devoted to her mother, the daughter was not suitable for appointment as her mother's guardian because the working relationship with the nursing home staff where her mother lived had broken down. The daughter proposed to move her mother to another facility but the Tribunal found that this was not in the best interests of the woman due to her dementia, and that she had been moved within the previous 12 months from other facilities for similar reasons.
2The Tribunal appointed the woman's brother and sister as her joint guardians. Although they lived outside Western Australia, they were willing to be appointed and to address the needs of the woman for decisions to be made about her treatment, care, accommodation and services. They stated that they would work cooperatively with the primary carers and their niece to resolve the problems that had arisen.
The Tribunal made a short order and said at [80]:
Although, because of her condition, we find that the represented person will need a substitute decision-maker for her lifetime, we have made a shorter order than the maximum period of five years as the practicality, workability, effectiveness and need for the order we have made should be reviewed prior to that time. We therefore make the order to be reviewed on or before 11 May 2012.
JP and MF are the appointed joint limited guardians and are the brother and sister of the represented person. They live in New South Wales.
IPK (represented person) has a complex health history and there was not, at the original hearing or on review, any contest to the finding that she is a person for whom a guardian may be appointed.
All members of her family and the health care providers supported the need for the appointment of a guardian when the order was first made. On review, the sister of the represented person supports the continuation of the order, as does the Director of Nursing of the facility at which the represented person lives. In a report dated 26 March 2012, the Director of Nursing notes that the represented person's health problems include dementia, aspiration, pneumonia, CVA, cerebral palsy, dysphasia, asthma, and hypertension. Further, the report notes:
Resident bed/chair bound
Resident can be verbally & physically aggressive with staff
Noted at times to be verbally aggressive with daughter when she visits
…
Resident required 24 hour care[.]
The recommendation in the report is '[c]ontinue with same guardians'.
A letter to the represented person's general practitioner, dated 6 March 2012 from Dr DT, consultant psychiatrist, states:
[The Director of Nursing] reports [the represented person] being largely settled over the last few months although she intermittently displays agitation and screaming behaviour. There are no acute risk issues. Carers are able to manage her with non-pharmacological intervention. I prescribed her Lorazepam prn when I last saw her in October 2011 and this was needed just twice since then. [The represented person] has a tendency to get upset and verbal to her visitors, however there are no significant problems in terms of her management.
Staff feel confident about managing [the represented person] with behavioural strategies which they believe is working well. She needs full assistance with her ADL. She is not on any regular psychotropics except Lorazepam prn.
The Tribunal finds that the represented person remains a person for whom a guardianship order may be made, in that she is unable to look after her own health and safety, unable to make reasonable judgments about her person, and is in need of oversight and care in the interests of her own health and safety or for the protection of others (s 43(1)(b) of the Guardianship and Administration Act 1990 (WA) (GA Act)).
Need for the order
When the original order was made, the Tribunal found there was a need for a guardianship order to be made. This was the case, even though the represented person's daughter had been making personal decisions for her in the 12 years that the represented person had been a resident of various facilities. The Tribunal determined that there was a need for formal authority to ensure that accommodation and medical treatment decisions for the represented person were made in her best interests, and were not driven by the poor working relationships between the daughter and the staff of the facilities where the represented person lived. At the time of the original application, the daughter proposed to move the represented person from the facility in which she was then living. The Tribunal determined that this decision was not in the best interests of the represented person, based on medical advice previously given to the daughter.
As the daughter did not appear at the review hearing, her views have not been obtained as to whether there should be a change in the orders.
The sister supports the confirmation of the existing order. The recommendation in the report of the Director of Nursing is that the current guardians continue.
The sister said in the hearing that she had developed a good rapport with the Director of Nursing through communication by email, and that the Director of Nursing always responded very promptly to any issues raised. She said that her niece 'is very caring towards her mother and often brings her home and looks after her' for day visits but 'perhaps she's too close to see some of the problems' (T:4; 10.05.12).
The sister said that the guardians communicated regularly with the daughter of the represented person so that she was aware of what was happening, and that:
… the present situation is working well. … there haven't been any problems really that can't be resolved.
She went on to say that she felt that the current nursing home:
… had been the only one that has really treated [the represented person] with care and respect.
However, she said:
… I don't think [daughter]'s ever going to be happy with her management because she expects her to be more than treated well, if you know what I mean. (T:5; 10.05.12).
The sister reported that, in the past, the represented person had been treated with 14 medications, which the sister considered inappropriate.
Although, according to the material before the Tribunal, the medication Lorazepam given to manage the represented person's agitated and aggressive behaviour is now given rarely, the authority to deal with that matter is still required by the guardians.
There is also a need, in the view of the Tribunal, for certainty of decisionmaking regarding all aspects of the represented person's care. Although she is reported to be more settled, the health issues for the represented person remain. Because of difficulty in the past in the relationship between the daughter and the facility staff, it was necessary to have guardians to make personal decisions for the represented person, rather than have the informal arrangements continue.
The failure of the daughter to attend the hearing may indicate that she supports the continuation of the existing orders, or at least does not seek to challenge them. However, since nothing has been received from her, her views regarding the orders are not before the Tribunal. What is reported is that she continues to have some level of dissatisfaction about her mother's care. From the material available to the Tribunal, the continuation of the existing orders is in the best interests of the represented person.
Appropriate appointment
The sister of the represented person proposes that the orders be confirmed. She submits that her brother supports their reappointment as guardians rather than a third party, presumably the Public Advocate, being appointed. As the sister and brother are suitable for appointment, there is no need to consider the appointment of the Public Advocate.
Length of the order
Based on the medical evidence before it and the longterm nature of the represented person's disabilities, the Tribunal finds that the represented person will not likely recover her capacity to make decisions about her person. She will need decisionmakers in the long term.
The shortterm order originally made in 2011 was intended to provide for the needs of the represented person and then provide an early review to ascertain if the situation could settle to allow informal arrangements previously in place to resume. On review, there is support for the continuation of the existing orders. The order is made for review in five years time.
Orders
On review under s 84 of the Guardianship and Administration Act 1990 of an order dated 30 December 2011 concerning the represented person, heard before Member F Child on 10 May 2012, it is ordered that:
1.The order is amended so that it now reads:
[JP] of [address deleted], New South Wales and [MF] of [address deleted], New South Wales are appointed joint limited guardians of the represented person with the following functions:
(a)To decide where the represented person is to live, whether permanently or temporarily;
(b)To decide with whom the represented person is to live;
(c)Subject to Division 3 of Part 5 of the Guardianship and Administration Act 1990, to make treatment decisions for the represented person;
(d)To determine the services to which the represented person should have access; and
(e)To consent to the use of chemical or physical restraint in respect of the represented person and to decide matters incidental thereto.
2.This order is to be reviewed by 10 May 2017.
I certify that this and the preceding [26] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS F CHILD, MEMBER
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