Re IPK; Ex Parte DK - [2011] WASAT 211

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: HUMAN RIGHTS

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION: RE IPK; EX PARTE DK [2011] WASAT 211

MEMBER: MS F CHILD (MEMBER)
MS V O'TOOLE (SENIOR SESSIONAL MEMBER)
DR R CLARNETTE (SENIOR SESSIONAL MEMBER)

HEARD: 19 SEPTEMBER 2011
9 NOVEMBER 2011
11 NOVEMBER 2011

DELIVERED : 30 DECEMBER 2011

FILE NO/S: GAA 2372 of 2011

EX PARTE
DK
Applicant
AND
IPK
Represented Person

Catchwords:

Guardianship and administration Application for the appointment of a guardian Complex health history Dysphagia Need for a guardian Breakdown in relationship between primary carer and daughter Need for alternate consent giver Treatment 'Other health care' includes modified diet Daughter not suitable for appointment as guardian Appointment of brother and sister as joint guardians

Legislation:

Guardianship and Administration Act 1990 (WA), s 3, s 43, s 43(1)(b), s 43(1)(c), s 44(5), s 110ZD(3)(b), Pt 5, Div 3
State Administrative Tribunal 2004 (WA), s 83(1)(b), s 35

Result:

Guardians appointed

Category: B

Representation:

Counsel:

Applicant: N/A
Represented Person : N/A

Solicitors:

Applicant: N/A
Represented Person : N/A

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

BCB [2002] WAGAB 1
Brightwater Care Group (Inc) v Rossiter [2009] WASC 229

REASONS FOR DECISION OF THE TRIBUNAL:

SUMMARY OF TRIBUNAL’S DECISION

The 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.
The 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.

Background and relevant legislation

The application for the appointment of a guardian for IPK (represented person) was heard on 19 September 2011 and 9 November 2011. Orders were made and oral reasons for the decision were delivered on 11 November 2011.
The brother of the represented person requested written reasons for the decision of the Tribunal. The following are the reasons of the Tribunal delivered on 11 November 2011, with editing of the transcript for clarity and removal of identifying information consistent with the provisions of the Guardianship and Administration Act 1990 (WA) (GA Act). The written orders extracted did not include directions given to the guardians announced at the hearing, and so the order has been amended pursuant to s 83(1)(b) of the State Administration Tribunal Act 2004 (WA) (SAT Act).
This is an application by DK (applicant), the daughter of the represented person, for her appointment as guardian, filed with the Tribunal on 4 August 2011 and first heard on 19 September 2011. The application was adjourned after the first hearing for mediation between the applicant, the family members and the Director of Nursing of [name deleted] nursing home and for production of records from hospitals and care facilities. By letter dated 11 October 2011 the applicant withdrew her willingness to participate in the mediation and advised that she believed that her mother had been injured with a hoist on 12 September 2011 and 28 September 2011 at [name deleted] nursing home.
The Director of Nursing indicated by letter received by the Tribunal on 12 October 2011 that she too was unwilling to participate in the mediation.
The applicant said in her letter of 11 October 2011 that she had documented the injuries to the represented person and had made a complaint to the Aged Care Complaints Scheme. The applicant said that she did not feel her mother was safe in the facility and was seeking an urgent transfer to a more suitable nursing home.
By letter dated 21 October 2011 the applicant sought to withdraw her application to the Tribunal for the appointment of a guardian. Her letter states that she has five urgent applications to facilities for a high care bed for the represented person. Leave was not granted to withdraw the application for the appointment of a guardian, and the application proceeded to hearing on 9 November 2011 before the Tribunal, reconstituted as three members. Prior to the hearing the Tribunal received from the brother and sister of the represented person a submission proposing their appointments as guardians of the represented person.
A large amount of written material is before the Tribunal, including submissions made by the applicant, the brother and the sister of the represented person, the Director of Nursing and the Public Advocate, and reports from the social worker from an Older Adult Mental Health Service.
Also before the Tribunal are documents produced in response to an order made pursuant to s 35 of the SAT Act. These documents include integrated progress notes from the nursing homes where the represented person has been resident, including the current facility and two previous nursing homes. Records from Rockingham Hospital and Fremantle Hospital of recent admissions of the represented person to those facilities are also before the Tribunal. There are also reports produced by Dr F, medical officer, and a social worker from Rockingham Hospital, as well as letters from the palliative care consultant to doctors at Rockingham Hospital.
At the hearings the Tribunal also heard directly from the applicant, the brother and the sister of the represented person, the Director of Nursing, MG, a social worker from an Older Adult Mental Health Service (social worker), and from a representative of the Public Advocate.
In making any decision on an application brought under the GA Act, the Tribunal must observe the following principles:
•Its primary concern must be the best interests of the represented person.
•Every person is presumed to be capable of looking after their own health and safety and making reasonable judgments in matters relating to their person.
•A guardianship order may not be made where there is an alternative means of meeting the person's needs that is less restrictive.
•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 also seek to ascertain as far as possible the views and wishes of the person concerned.
To appoint a guardian for the represented person, the Tribunal must be satisfied that the requirements of s 43 of the GA Act are met.
Section 43 provides:
(1)Subject to Section 4, where the State Administrative Tribunal is satisfied that a person in respect of whom an application for a guardianship order is made under section 40
(a)has attained the age of 18 years;
(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,
the Tribunal may by order declare the person to be in need of a guardian, and if it does so shall appoint
(d)a person to be a plenary guardian or a limited guardian and, if it is expedient, a person to be an alternate guardian; or
(e)persons to be joint plenary guardians or joint limited guardians,
as the case may require, of the person in respect of whom the application is made.
(2)Where under subsection (1) the State Administrative Tribunal declares that a person is in need of a guardian, it shall also declare the matter or matters set out in paragraph (b) of that subsection of which it is satisfied.
…

Is the represented person a person for whom a guardian may be appointed?

The written material before the Tribunal shows that the represented person has had a complex health history. The material refers to three 'CVAs', cerebral palsy, anxiety disorders, osteoarthritis, recurrent urinary tract infections, hypertension, what is described as vascular dementia, and dysphagia, a swallowing deficit or weak and delayed swallow. Her brother described in the hearing an apparent psychotic episode some 12 years ago, prior to her entry into nursing home care.
In July 2011 prior to her admission to the current nursing home, the represented person became gravely ill and was admitted to Rockingham Hospital. She was not expected to live and a decision was taken at the hospital to treat her palliatively. She has since recovered from this acute illness and is reported to have put on weight since her admission in August 2011 to the current nursing home.
The represented person has been a resident of nursing homes for the past 12 years, initially at A [name deleted] nursing home, B [name deleted] nursing home for six or seven years, then C [name deleted] nursing home for six months, and since August 2011 at the current nursing home.
The uncontested evidence is that the represented person is now dependent on carers for all activities of daily living including feeding, drinking, bathing, toileting, moving her to prevent pressure areas on her skin and administration of medications. The represented person has a well documented history of challenging behaviours, including verbal abuse, scratching, pinching, screaming or calling out, shouting and lashing out in an attempt to hit others.
The material before us suggests, and the parties agree, that these behaviours are long term behaviours and generally occur when the represented person is having personal care interventions, such as showering or being given medications. These behaviours are of long standing and the social worker in her evidence reports that the represented person was first referred to the Older Adult Mental Health Service from [name deleted] nursing home, the first facility to which she was admitted. The social worker from the Mental Health Service reports that she has had contact with the represented person at each of the subsequent facilities.
At times the represented person's challenging behaviours have been extreme. In notes from Fremantle Hospital referring to a family meeting dated 16 February 2011, the following is recorded:
Family concern about the represented person's violence. They believe danger to herself and others, explain that [the represented person]'s vascular dementia is the cause of her symptoms.
At the hearing on 19 September 2011 all parties agreed that the represented person is a person for whom a guardianship order may be made. There was no challenge to the opinion of Dr F that the represented person has a diagnosis of vascular dementia, and that that she is incapable of making decisions about her personal health care or her living situation.
We are satisfied that all three of the paragraphs of s 43(1)(b) of the GA Act apply to the represented person and she is a person for whom a guardian may be appointed.

Is the represented person in need of a guardian or is there a less restrictive alternative to the appointment of a guardian?

Pursuant to s 43(1)(c) of the GA Act, the Tribunal must be satisfied that the represented person is in need of a guardian.
The parties at the hearing on 19 September 2011 and again on 9 November 2011 all agree that the represented person is in need of a guardian.
The reason initially given by the applicant for bringing the application for her appointment as guardian was so that she could make decisions in relation to her mother's care. In the course of the first hearing, she asserted that she needed to be appointed to have ongoing access to her mother's records held at [name deleted] nursing home to 'understand the speech pathologist's and dietician's records of assessments' of her mother's swallow and also 'to ensure that [the nursing staff] have not been giving her extra drugs'.
She said at the first hearing that she had told her uncle she needed to 'apply for guardianship because we cannot access any records'. The evidence of the conversation that is said by the applicant to have taken place between the applicant and the Director of Nursing regarding access to the nursing home records is in conflict. The Director of Nursing denies that she advised the applicant that the applicant needed to be appointed guardian of the represented person to access the records.
It appears to the Tribunal that the applicant must be mistaken about this conversation since her application to the Tribunal for her appointment as guardian was made prior to the represented person entering care at [name deleted] nursing home. We will return to this issue later in these reasons as we consider it reflects some of the tension in the relationship between the applicant and the nursing home staff, and the lack of workability in that relationship. In terms of the need for the appointment of a guardian, we consider there are three issues which must be addressed to meet the needs of the represented person.
The principal issue which must be addressed is certainty about where the represented person should live; the second is authority regarding her treatment and care; and finally transparency and formal authority regarding the use of restraints.
In respect of decisions about where the represented person should live, we accept the opinion communicated to the family and recorded in the medical notes at Fremantle Hospital dated 16 February 2011 '[t]hat it is generally not a good idea to change location in dementia patients'.
We consider that this must be a particular concern for the represented person, who is said to be more anxious, agitated and aggressive with unfamiliar carers. The hospital file note was made while the represented person was an inpatient at Fremantle Hospital and when consideration was being given to move her from [name deleted 'B' nursing home] in February 2011. The note records:
Daughter concerned about the care manager at nursing home, had a big argument, daughter scared for mum. Daughter considering [name deleted] another Nursing Home. Agreed that [the represented person] will likely have behaviour problems wherever she goes.
The decision to move the represented person from her long term placement at B nursing home in February 2011, we consider, bears close examination given the length of time of her admission there. It is accepted that the records produced from B nursing home show significant behaviour problems of the represented person. These include aggression and screaming, documented, for example, on 26 July 2010; however, the notes also record strategies engaged to address these behaviours. Those strategies include involvement of the Dementia Behaviour Assessment and Management Service and the Older Adult Mental Health Team.
The notes from the facility record light therapy, art therapy, behaviour monitoring charts, behaviour management techniques, pain charts, family conferences and discussions to improve communication. Notably the records refer to at least two incidents of choking on food and fluid, and also what appears to be deterioration in the relationship between the applicant, the daughter of the represented person, and the facility. An example of this is where the represented person suffered a fall on 27 November 2010. There is a notation in the notes that, '[d]aughter visited distraught regarding her mother's fall yesterday. Upset that her uncle who is a [identifying information deleted] in Sydney was notified about [the represented person]'s fall and that she was not.' A further note in relation to the incident in the day that followed included, '[a]n attempt to reassure [the applicant] about that'.
The long term placement at B nursing home was terminated, according to the applicant, when there was 'excessive force' used on her mother and, following admission of her mother for assessment at Fremantle Hospital, because of her deteriorating behaviours.
The represented person was discharged from Fremantle Hospital to C nursing home following that admission. After the represented person's admission to Rockingham Hospital from that nursing home in July 2011 with what was recorded in the inpatient discharge letter as aspiration pneumonia and dehydration, it is said that the bed at the nursing home was given up as it was reported that the represented person was not expected to live. On her discharge from hospital an alternative place was required at [name deleted] nursing home, the current facility. However, in the Rockingham Hospital discharge notes dated 5 August 2011, it is recorded:
Previously from highlevel nursing home, [nursing home C name deleted], but was moved out as patient family was not happy with the nursing home care provided.
Although it is noted that the writer of this note had minimal involvement with the represented person, the notes and the history were obtained from the medical notes presumably created at the time of admission. We accept the evidence of the social worker given at the final hearing that, in her assessment, the applicant has not been satisfied with care provided for the represented person at any of the facilities in which the represented person has lived. In the social worker's report, she submits that all the facilities cared well for the represented person.
The Director of Nursing reports that since her admission in August 2011 to [name deleted] nursing home, the represented person has gained weight, although she remains underweight. The Director of Nursing reports that the represented person has a pressure area but this is being monitored by the registered nurses. In respect of the aggressive behaviour of the represented person, the Director of Nursing reports that the behaviour presented by the represented person is not out of the ordinary for patients with dementia.
The social worker, although spending little time at the facility, found the represented person fairly settled when she saw her there. These views contrast with those of the applicant who reports that her mother's behaviour is 'out of control', and that she should be admitted to Fremantle Hospital at Alma Street, which is an approved mental health facility, for assessment of her behaviours and medications.
All parties agreed at the hearing that a further review of the represented person by Dr T, the consultant psychiatrist from the Mental Health Service, is required. The social worker has said that this can be facilitated by Dr T visiting the represented person again at the nursing home rather than the represented person being admitted to hospital as the applicant proposes.
A report by Dr T sent to the general practitioner was handed up by the social worker at the final hearing. Dr T reports to the general practitioner, Dr P, that he assessed the represented person on 13 October 2011 'I have seen her in the past and then was a lot worse than now'.
He notes that during the review the represented person appeared pleasant and settled. Dr T has, according to the notes, prescribed both Flupenthixol, an antipsychotic medication, and Ativan, a medication for sedation, both medications with which the applicant takes issue.
The applicant reports that she has made a complaint regarding an injury to the face of the represented person, which she became aware of when her mother arrived unaccompanied in a taxi from the nursing home for a visit at her home. The applicant states that her mother said that it was caused by the hoist. The applicant alleges that her mother has been assaulted while at the facility. The injury has been photographed and reported to the general practitioner, to the police and to the Aged Care Complaints Scheme. The injury was not previously documented at the nursing home. In the final hearing, the applicant said that she may be willing to withdraw the complaint as she does not want further conflict. This is not a matter for this Tribunal.

Both the represented person's brother, JP, and her sister, MF, state that they are satisfied that the represented person should remain at the current nursing home, and issues of conflict which have arisen can be addressed by them if they are appointed as the represented person's guardians. MF described observing the represented person being fed carefully and slowly by a carer. Although the applicant did not press the need for relocation of the represented person from the current nursing home at the final hearing, given the history, we are satisfied that there is a need for the appointment of a guardian to determine where the represented person is to live.
In respect of the feeding issues associated with the represented person's care, it is documented in the notes referred to above and received by the Tribunal, that the represented person has been assessed in B nursing home, it is said perhaps two or three years ago, as having a compromised swallow and that because of this she is assessed as requiring level 1 thickened fluids and a soft, moist diet. The most recent assessment conducted by a consultant speech pathologist at the current nursing home in September 2011 also identifies a compromised swallow.
It appears that the modified foods and feeding of the represented person have been a source of conflict between, originally, the represented person herself and later the applicant, with all the facilities in which the represented person has been a resident. The applicant has not been consistent in the information given to the Tribunal regarding this issue. In the first hearing she said 'I have no issues with her swallowing', and appeared to question whether the diagnosis of dysphagia was accurate. The brother of the represented person also appeared to challenge the basis for that assessment at that original hearing.
In a submission filed by the brother and the sister, the inference that aspiration pneumonia suffered by the represented person was caused by food is rejected. At the hearing on 9 November 2011, the applicant said that '[n]ormal water is out of the question for the represented person', and yet there are references in the notes, most recently in February 2011, to requests from the applicant that the represented person be given normal water. In a letter to the previous facility dated 17 June 2011 written by the brother and the applicant, the swallowing issues are acknowledged and the position of the family to accept some risks to ensure the food preference of the represented person are set out.
In s 3 of the GA Act 'treatment' is defined to include medical or surgical treatment, including a life sustaining measure and palliative care, dental treatment or other health care.
We consider 'other health care' includes the modified diet of the thickened fluids and types of foods provided to the represented person. These foods are provided in response to an assessment of the represented person's compromised swallow which we accept has been identified by speech pathologists and the health care professionals with the knowledge and expertise to make such an assessment, both at B nursing home and since.
As such, we find that the modified diet provided as a result of that assessment is health care and not simply food and drink. We do not consider that this decision is inconsistent with previous authority. Although dealing with a percutaneous endoscopic gastrostomy tube (PEG), in Brightwater Care Group (Inc) v Rossiter [2009] WASC 229, the Western Australian Supreme Court said:
There is no doubt that the nutrition and hydration provided to Mr Rossiter through the PEG is 'surgical or medical treatment' within the meaning of s 259. The PEG was inserted by surgical means, and the precise mix of nutrition and hydration is supplied in accordance with medical principles and protocols [emphasis added]. This conclusion is consistent with views expressed in other jurisdictions: Re BWV; Ex parte Gardner [2003] VSC 173; (2003) 7 VR 487 [74] - [79]; Adult Guardian v Langham [2005] QSC 127; (2006) 1 Qd R 1 [32].
We consider that the modified diet is supplied in accordance with medical principles and protocols and that the finding that it is health care is consistent with these authorities.
A treatment decision is defined in the same section of the GA Act to include a decision to consent, or to refuse to consent, to the commencement or continuation of any treatment of the person.
The Tribunal accepts that it is a sensitive balancing act between the safety of the represented person, in terms of the risk of aspiration and her pleasure in having the foods and drinks of her preference. However, we consider that this issue requires close consideration and careful management by the represented person's direct care providers, together with a decisionmaker standing in the represented person's shoes to make such a decision, and able to work effectively with the direct carers in a cooperative way having regard to their obligations to the represented person.
We find that the applicant has not been able to do this and, therefore, there is a need for a guardian to be appointed to make these decisions on the represented person's behalf.
Throughout the material submitted to the Tribunal there are references to the use of various means used in the care of the represented person to protect her and others from her violent behaviours and to modify or reduce her agitation, including PRN medications for sedation such as Ativan. In previous decisions the use of medications for this purpose have been determined to be restraint and not medical treatment; see BCB [2002] WAGAB 1. The applicant takes issue with the use of benzodiazepines and prefers the medication Epilim to be used to manage her mother's behaviour.
At various times the applicant has been called on to agree to various physical restraints of the represented person. For example the gloves used to stop her scratching others, bedrails, fallout chairs and a timeout procedure previously used in response to violent behaviour, could all be classified as restraints.
The review by Dr T will no doubt reconsider the medications as proposed by the applicant, but it is possible, perhaps likely, that immediateacting sedating medications rather than longer term psychoactive medications will be proposed to be used as restraint of the represented person's behaviour in the future. It is necessary in these circumstances that the decisions made about such medications be transparent and made with a focus on the best interests of the represented person so that her behaviour is managed in the least restrictive way, but with a realistic appreciation of the need for protection of her from distressing levels of agitation and the risk of self injury, and for the safety of others.
We are satisfied that there is a need for a guardian to decide where and with whom the represented person should live, to make treatment and health care decisions on her behalf, to determine the use of restraint and the services to which she should have access. We are satisfied that there are no less restrictive alternatives for these decisions to be made in the best interests of the represented person other than through a formal guardianship order.

Who should be appointed the guardian of the represented person?

Although it is noted in a letter sent to the previous nursing home [name deleted] that the applicant is identified as the legal guardian of the represented person, this is not correct. The applicant, as the daughter, is the nearest relative as defined in s 110ZD(3)(b) of the GA Act, and as the daughter of the represented person, has been making medical and treatment decisions for her mother for many years.
Although health care decisions have been made for the represented person in the past by the applicant as the nearest relative, including referral for psychiatric treatment and admission to hospital, the choice of palliative care, refusal of some medications and the request for readmission to hospital for end of life care should the represented person's condition deteriorate, all these decisions have been possible in that capacity.
However, we consider that there is now a need for the appointment of a guardian to make health care and treatment decisions for the represented person, as we consider that someone other than the applicant should make those decisions at least for a period of time. At the present time we consider that the applicant is not suitable for appointment as a guardian because of the breakdown in the relationship between the direct service provider, being [name deleted] nursing home, and the applicant. We consider that the breakdown in that relationship resulted in the applicant expressing her wish to remove her mother from that facility and to seek urgent relocation of the represented person to another nursing home.
While we acknowledge the need for vigilance regarding the care of vulnerable persons in care facilities, and the right of family members to make complaints about care as they see fit, we consider that given what the applicant knows of her mother's behaviour and the known risk of self injury, a more considered approach was required when she became aware of the injury to the represented person.
The tentative explanation given, as we understand it, by the general practitioner that the represented person may have scratched herself, is at least plausible. That the applicant was unable or unwilling to deal directly and appropriately with the management of the nursing home regarding this issue and immediately determined her mother should be moved again is of great concern, and reflects the breakdown in the working relationship between the nursing home staff and the applicant, who we acknowledge is the most significant person in the life of the represented person.
At the final hearing the applicant maintained that she should be appointed guardian for her mother, as her mother chose her as her attorney pursuant to an enduring power of attorney prior to her mother's loss of capacity. This choice reflects the wishes of the represented person about who she would choose to make decisions for her.
We accept this submission and have no doubt that her daughter would be the choice of the represented person as her guardian. This is supported by the evidence of the brother and the sister of the represented person about the intensity and value of the relationship between the represented person and the applicant, and also by the social worker who acknowledges the devotion and concern shown by the applicant to her mother over the past 12 years.
The applicant herself reflected on the demands placed on her over the past years in experiencing her mother's deterioration and in dealing with 'the system'. Despite what we acknowledge would be the wish of the represented person and the importance of the relationship with her daughter, for the reasons outlined we do not find the daughter suitable for appointment as guardian. We find that the decision to move the represented person from B nursing home in February 2011 was not in the best interests of the represented person, and the proposal for a further move from the current nursing home by the daughter shows, in our view, that she does not fully appreciate the complex care needs of the represented person.
The deterioration in the relationship between the applicant and the current nursing home staff is clear. The applicant has very strong views and is assertive about expressing them. It appears to the Tribunal that she is reluctant to consider or accept alternative points of view and is apparently dismissive of some professional opinion. Her insistence on the content of the conversation which she says occurred between her and the Director of Nursing, which she says meant that she needed to be appointed guardian, is an example, we consider, of the applicant's perception of and approach to dealing with the represented person's care providers.
That approach, we consider, is fundamentally one of lack of trust and respect and reflects her belief expressed in her letter to the Tribunal in October 2011 that 'no one else cares about her mother'.
Although the evidence regarding the conversation showed inconsistencies in the account reported by the applicant (and where the accounts differ, we prefer the evidence of the Director of Nursing), the applicant did not acknowledge or concede that she might be mistaken in her account of that conversation.
Despite her own views of the positive relationship with the direct carers, again we accept the evidence of the Director of Nursing that this is not the case. In any event, we consider there is no longer a working relationship between the applicant and the primary carer of the represented person being [name deleted] nursing home. This gives rise to the need for an alternative decisionmaker for the represented person.
The Director of Nursing, the social worker and the Public Advocate submit that the Tribunal should consider the appointment of an independent guardian, being the Public Advocate, as guardian for the represented person.
To appoint the Public Advocate the Tribunal must be satisfied that there is no one else suitable for appointment: s 44(5) of the GA Act.
In respect of the proposal of the brother and the sister for their appointment as guardians, we note that any appointment of joint guardians means that the guardians must be unanimous as to the decisions reached. There is no provision in the GA Act for a joint and several appointment of guardians as was initially proposed.
Although the brother and the sister face considerable barriers in their ability to practically perform the functions of guardian because of distance and because of that distance their stated reliance on the applicant's, their niece's, perceptions of and reports of events and their lack of direct knowledge of the aged care, disability and mental health systems in Western Australia, we do not consider that these barriers are insurmountable such that they would be regarded as unsuitable for appointment.
We accept their submission made in the hearing that the represented person should remain at [name deleted] nursing home and that they, the brother and the sister, have the requisite skills and experience to address and resolve the conflicts which have arisen between their niece and the facility. Their written submission also addresses the manner in which their niece has engaged with the nursing home staff. While they acknowledge her contribution to their sister's care over many years, they propose they play a greater role in respect of decisionmaking for their sister to ensure that her best interests are met.
Their professional backgrounds will assist the brother and the sister to appreciate that the role of a guardian is not just a mediator, liaison person or support person, but a substitute decisionmaker with lawful authority to make decisions for the represented person in respect of the functions included in the order. As part of their role, they must endeavour to maintain the supportive relationships of the represented person, and to this end they are best placed to engage with and involve the applicant in her mother's life because of the close relationship they have with her, and their recognition of the importance of the relationship between the represented person and the applicant to the represented person.
However, this does not allow for the needs of the represented person for stability, appropriate care and services to be secondary to that relationship, and that the brother and the sister must exercise their independent judgment when making decisions for the represented person based on an assessment of all of the relevant information, including professional opinion and that of those caring directly for the represented person on a day to day basis, nor does it allow for the delegation of their authority.
The brother and the sister submit that their distance from Western Australia should not be a barrier to their appointment, given the various forms of communication now available and their proposal for regular travel to Western Australia. This is accepted, but the effectiveness of the order for the represented person will depend on their availability, and engagement with, the primary carer, being [name deleted] nursing home, and with other health professionals such as the social worker and the psychiatrist from the Older Adult Mental Health Service.
As we consider the brother and sister suitable for appointment at this time, it is not possible or necessary to appoint the Public Advocate.
Because of the urgent need to rebuild the working relationship with the represented person, we direct the guardians to immediately provide, if they have not already done so, their 24 hour contact details to the Director of Nursing of [name deleted] nursing home. We also direct that the guardians seek a meeting without delay, either in person or by teleconference, to establish regular contact and other arrangements between them and the appropriate staff at the nursing home.
We also direct the guardians to have at least weekly contact with the Director of Nursing of the facility, or her delegate, and have regular contact with the case manager from [name deleted] Older Adult Mental Health Service regarding the care of the represented person. We also direct that, if they decide the accommodation of the represented person is to be changed, they seek written advice regarding whether that is appropriate from [name deleted] Older Adult Mental Health Service prior to making a decision in that regard.
Although, because of her condition, we find that the represented person will need a substitute decisionmaker 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. With that order, we make the order that there be liberty to apply to the parties for review of the order prior to that statutory review.

Orders

Pursuant to s 83(1)(b) of the State Administrative Tribunal Act 2004 (WA), the order made by Member F Child, Senior Sessional Member R Clarnette and Senior Sessional Member V O'Toole on 9 November 2011 on an application for the appointment of a guardian for the represented person, [name deleted], is amended and replaced by this order made 30 December 2011:
1.JP [name deleted] of [address deleted], New South Wales and MF [name deleted] 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 Div 3 of Pt 5 of the Guardianship and Administration Act 1990 (WA), 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.
The guardians are directed to:
(i)immediately provide, if they have not already done so, their 24 hour contact details to the Director of Nursing of [name deleted] nursing home;
(ii)seek a meeting without delay either in person or by teleconference with the Director of Nursing of [name deleted] nursing home to establish regular contact and other arrangements between them and the appropriate staff at the nursing home;
(iii)have at least weekly contact with the Director of Nursing or her delegate and have regular contact with the case manager from [name deleted] Older Adult Mental Health Service regarding the care of the represented person; and
(iv)seek written advice regarding any change of accommodation of the represented person from [name deleted] Older Adult Mental Health Service prior to making a decision in that regard.

2.This order is to be reviewed by 11 May 2012.
3.There be liberty to apply to the parties for review of the order prior to the statutory review.

I certify that this and the preceding [81] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS F CHILD, MEMBER