Re JMM; Ex Parte JMM
[2009] WASAT 95
•13 MAY 2009
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: HUMAN RIGHTS
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: RE JMM; EX PARTE JMM [2009] WASAT 95
MEMBER: MS F CHILD (MEMBER)
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 13 MAY 2009
FILE NO/S: GAA 478 of 2009
GAA 491 of 2009
EX PARTE
JMM
Applicant
Catchwords:
Guardianship and administration - Application for leave to apply for review - Appointment of the Public Advocate as guardian less than 12 months prior to application - Whether there has been any change in circumstance or any other reason to hold a review of the order - Continuing family conflict - Continuing need for orders appointing independent guardian - Application for leave dismissed
Legislation:
Guardianship and Administration Act 1990 (WA), s 84, s 86(1), s 87, s 87(1), Div 3, Pt 5
State Administrative Tribunal Act 2004 (WA), s 77
Result:
Applications dismissed
Category: B
Representation:
Counsel:
Applicant: N/A
Solicitors:
Applicant: N/A
Case(s) referred to in decision(s):
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
The Tribunal dismissed an application for leave to apply for review of an order which appointed the Public Advocate as limited guardian of an elderly woman with a diagnosis of dementia. The application for leave was made by the daughter of the woman and raised concerns about the quality of care received by the woman.
The issues raised in the application about the accommodation of the woman and family conflict were substantially the same as matters dealt with on periodic review of the guardianship order undertaken by the Tribunal less than 12 months previously. Having considered the application, a report from the Public Advocate and other information, the Tribunal determined that there had been no change in the woman's circumstances or any other reason which required that a review be held and so dismissed the application.
Reasons of the Tribunal
These reasons relate to a determination of the Tribunal to dismiss an application for leave to apply for review of a guardianship order dated 13 June 2008 by which the Public Advocate was appointed limited guardian of JMM (represented person). The application for leave was determined on 6 April 2009 and these written reasons are produced pursuant to s 77 of the State Administrative Tribunal Act 2004 (WA).
The legislation
Section 87 of the Guardianship and Administration Act 1990 (WA) (GA Act) provides for leave to apply for review of an order made by the Tribunal:
(1)Any person may request the State Administrative Tribunal for leave to apply for the review of a guardianship order or an administration order.
…
(5)The State Administrative Tribunal may ‑
(a)refuse the request; or
(b)if it is satisfied that because of a change of circumstances or for any other reason a review should be held, grant, either unconditionally or subject to any condition, leave to the person to apply for the review.
History of orders
The applicant seeks leave to apply for review of a guardianship order, dated 13 June 2008, which confirmed the appointment of the Public Advocate as guardian with the functions to decide where the represented person is to live, whether permanently or temporarily, to decide with whom the represented person is to live, subject to Div 3, Pt 5 of the GA Act, to consent to any treatment or health care of the represented person and to determine what contact, if any, the represented person should have with others and the extent of that contact. The order confirmed the appointment of the Public Advocate as limited guardian originally made on 15 May 2007.
Although the orders made on 15 May 2007 had been made subject to statutory review in May 2008, two daughters of the represented person, including the current applicant, applied in April 2008 for review of both the guardianship order and an administration order which appointed the Public Trustee as plenary administrator. The applications were dealt with together with the statutory reviews held pursuant to s 84 of the GA Act at a hearing before the Tribunal on 13 June 2008.
At the June 2008 hearing, the Tribunal heard oral evidence from the applicant and her sister (also an applicant at that time) other members of the family, representatives of the Public Advocate and Public Trustee and considered medical and other reports, banking records, and written submissions from the applicants and from other parties. At the conclusion of the hearing, the Tribunal found that the represented person remained a person for whom a guardian could be appointed based on the report of her general practitioner, who confirmed a diagnosis of severe dementia. In the report for the 2008 review, his opinion was that the represented person could make no contribution to the hearing and that attending would be detrimental to her health. He stated that 'the dispute between family members would be very distressing for the patient'. There was also a report from the Director of Nursing which confirmed the medical reports and documented conflict between family members.
The proposal put to the Tribunal by the applicant daughters, that the guardianship order appointing the Public Advocate be revoked and that the family members 'work out their differences' about the living situation of the represented person and manage contact arrangements themselves, was found by the Tribunal to be unrealistic because of the ongoing conflict in the family. Other family members, including the sister and brother‑in‑law and some other children of the represented person, supported the reappointment of the Public Advocate as guardian.
The Tribunal found there was a need for an independent guardian because of the ongoing conflict about where the represented person should live, care issues, the contact she should have with others. Because of the intractable nature of the family conflict, the order was made for the maximum period of five years. The reasons for the decisions made on 13 June 2008 were published by the Tribunal as [2008] WASAT 221
The application for leave to apply for review
The current application under s 87(1) and s 86(1) of the GA Act was received at the Tribunal on 13 February 2009. In that application 'a total review of the latest guardian put in place is requested'. The reasons given for making the application are as follows:
My mother isn't receiving a high quality of care from the guardian in place, [the name of the guardian deleted] or safe and good quality care from the nursing home. Myself and D [sister of the applicant and daughter of the represented person name deleted] spend each day with our mother and provide this. My concerns have been made aware to Age Care and [the guardian] regularly. [The guardian name deleted] never contacts us and I never see him attend to my mother. He only takes advice from the "Don" who is hardly ever present as she works [in] 2 facilities. The nursing home is always made aware of inspections and cover‑ups and false information is often given. My mother[']s health is deteriorating and mum isn't [sic] enjoy the food or care.
Following receipt of the application, the Tribunal wrote to the Public Advocate on 27 February 2009 in the following terms:
The Tribunal is currently considering whether leave should be granted to the applicant and seeks advice about the current circumstances of [the represented person] and whether there has been any change in her circumstances or any other reason which would warrant a review of the guardianship order since the matter was last before the Tribunal in June 2008.
On 11 March 2009, the Public Advocate responded with a report of the current circumstances of the represented person which stated in part:
There have been no substantial changes in [the represented person's] care situation over the past nine months. The Public Advocate is of the view that [the represented person] is well cared for at [nursing home]. [The represented person's] placement at this facility has also allowed opportunities for all members of her family to have regular contact with her, as set out in a contact plan devised by the Public Advocate and agreed to by all parties.
[The represented person] has a progressive dementia illness but remains in relatively good health. There is some concern that her weight has decreased since November 2008. At present her weight is within a healthy body mass index range. [The represented person] declines to eat on some occasions. This is thought to be related to her dementia illness. [The represented person] has a soft diet with high calorie dietary supplements. Her GP, Dr [name deleted], together with her dietician and speech pathologist are monitoring her diet and weight closely.
The guardian understands that both [the applicant] and [DM] have concerns for [the represented person's] weight loss. Regrettably, neither [name deleted] nor [name deleted] has communicated directly with the guardian in recent months regarding this or other issues. The Public Advocate has been advised that [DM] and [the applicant] on some occasions have provided [the represented person] with inappropriate foods. Although their intentions may be well founded, the provision of non‑recommended foods is potentially detrimental to [the represented person's] health.
The Public Advocate is aware of frequent complaints being lodged by [DM] and [the applicant] regarding [the represented person's] care. These include concerns regarding [the represented person's] diet, the time she is helped to bed, the manner in which [the represented person] is dressed and undressed, and how [the represented person] is assisted with toileting. In September, November and December 2008 there have been complaints lodged by [DM] and [the applicant] that have been investigated by the Commonwealth Department of Aged Care. The Complaint's [sic] Investigation Unit, Department of Health and ageing [sic], has on each occasion advised the Public Advocate it has not found any substance in these complaints.
The Public Advocate is aware [DM] and the [applicant] have a difficult relationship with [name deleted] Nursing Home's nursing and administrative staff and they would like [the represented person] to transfer to a different facility. However, the Public Advocate believes a move to a different facility would not be beneficial to [the represented person] and it is noted that, prior to the Public Advocate's appointment as guardian, [the represented person] had already experienced four nursing home placements.
The Public Advocate submitted that the existing guardianship order appointing the Public Advocate was required due to the significant conflict that exists within the represented person's family, conflict between her daughters and the facility staff and the differences of opinion about what is in the represented person's best interests.
On 20 March 2009, a letter was sent from the Tribunal to the applicant advising of the response received from the Public Advocate. The letter concluded:
Having considered the Public Advocate's response, and in view of the relatively recent review of the guardianship order which was conducted in June 2008, the Tribunal's preliminary view is that a further review of the order is not warranted at this time. If you have any further information which supports the need for a review of the order please provide it to the Tribunal by close of business on 3 April 2009. The application for leave will then be determined on the available information.
No further correspondence was received from the applicant, although the Tribunal had been copied a letter addressed to the State Ombudsman, dated 17 March 2009, regarding a complaint made to that office.
Other material before the Tribunal for the determination of this application includes a medical report from Dr PR dated 27 February 2009. The same general practitioner provided a medical report for the 2008 review referred to above. His recent report states the represented person's diagnosis is Alzheimer's disease and that she is incapable in all spheres of decision‑making. There is also a report from the Director of the nursing home in which the represented person lives. The report refers to a number of issues at the nursing home since the appointment of the guardian between November 2007 and February 2009, including complaints regarding the care of the represented person, allegations of neglect of the represented person and complaints to the police. The Director recommends that the current arrangements for guardianship remain in place in the best interests of the represented person.
Should leave to apply for a review be granted?
The issues raised in this current application for leave are substantially the same as were canvassed in the 2008 hearing. The applicant raises concerns about the current care of the represented person and is dissatisfied with the arrangements for guardianship. She asserts a failure in her view on the part of other family members to show their care for the represented person. All these matters were asserted by the applicants at the 2008 review hearing and dealt with by the Tribunal. The 2008 hearing was emotionally charged and distressing for many family members.
The medical reports before the Tribunal confirm the represented person has a progressive dementia illness and cannot make personal decisions for herself. Because of the continuing conflict between the applicant (and her sister DM) and other members of the family and with the care providers, the represented person remains in need of an independent guardian. These circumstances remain unchanged from when the matter was last heard before the Tribunal less than a year ago. The applicant advances no other reasons which support the grant of leave. That being the case, the Tribunal does not grant leave for an application for review to be made.
Orders
Leave is not granted and the applications are dismissed.
I certify that this and the preceding [19] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS F CHILD, MEMBER