RH
[2009] WASAT 159
•20 AUGUST 2009
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: HUMAN RIGHTS
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: RH [2009] WASAT 159
MEMBER: MS D DEAN (MEMBER)
HEARD: 14 AUGUST 2009
DELIVERED : 20 AUGUST 2009
FILE NO/S: GAA 1592 of 2009
BETWEEN: RH
Represented person
Catchwords:
Section 86 review of guardianship order Need for an order Best interests of the person Previous guardian not suitable Public Advocate appointed limited guardian
Legislation:
Guardianship and Administration Act 1990 (WA), s 4, s 43, s 44, s 86, s 90(1)
Result:
Public Advocate appointed limited guardian
Category: B
Representation:
Counsel:
Represented person : N/A
Solicitors:
Represented person : N/A
Case(s) referred to in decision(s):
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
RH is an elderly man with dementia. His friend, KR, was appointed his limited guardian in February 2009 to make decisions on his behalf in relation to the use of chemical and physical restraints and medical treatment. On an application by KR for an early review of the order, the Tribunal revoked the order appointing KR and appointed the Public Advocate limited guardian to make decisions in relation to restraint, medical treatment and also accommodation for RH.
In making this decision, the Tribunal had before it evidence that KR had at times delayed making decisions in relation to medical treatment sometimes causing RH unnecessary discomfort and suffering. Additionally, KR did not accept the seriousness of RH's cognitive decline, did not agree with the assessment of RH's care needs and refused to agree to him moving into nursing home care. Based on this evidence, the Tribunal found that KR did not always act in the best interests of RH and therefore was unsuitable to be appointed guardian.
Background
The Tribunal made a guardianship order on 16 February 2009 appointing KR, a friend of RH, limited guardian to make decisions in relation to medical treatment and health care and the use of chemical and physical restraints if appropriate for RH. The order was set for review in February 2014.
In July 2009, KR applied to the Tribunal for a review of the order on the basis that she wanted to have the authority to make decisions in relation to RH's accommodation. This was in the context of KR not agreeing with an assessment by the medical treating team that RH's care needs could no longer be met in the hostel where he was residing and that he needed to move into nursing home care.
These written reasons reflect the brief oral reasons for the determination given at the completion of the hearing on 14 August 2009.
Relevant Legislation
The guardian sought a review of the guardianship order pursuant to s 86 of the Guardianship and Administration Act 1990 (WA) (GA Act).
Upon review, the Tribunal may confirm the order, amend the order, revoke the order, or revoke the order and substitute another order for it (s 90(1)).
The principles to be observed by the Tribunal when making determinations in relation to the review of a guardianship order are the same as those applied in relation to an application for a guardianship order and are set out in s 4 of the GA Act.
They are, relevantly, that the primary concern of the Tribunal shall be the best interests of the person; that every person shall be presumed capable of making reasonable judgments in respect of matters relating to their person until the contrary is proved to the satisfaction of the Tribunal; that a guardianship order shall not be made if the needs of the person can be met by other means less restrictive of the person's freedom of decision and action, and in considering any matter relating to the person, the Tribunal shall, as far as possible, seek to ascertain the view and wishes of the person.
In deciding whether to appoint a guardian and in reviewing the appointment of a guardian, the Tribunal is required, by the provisions of s 43 of the GA Act, to make a finding that the person is incapable of looking after his own health and safety; is unable to make reasonable judgments in respect to matters relating to his person; or is in need of oversight care or control in the interests of his own health and safety or for the protection of others.
The question of RH's capacity
The Tribunal had before it reports from RH's general practitioner (GP), two Clinical Nurses involved in RH's care and a representative from the Office of the Public Advocate (the Public Advocate) who had met with RH, all of whom provided evidence that RH no longer has the capacity to make reasoned decisions about any major aspect of his life. The GP reported that on 7 August 2008, he had conducted a mini mental state exam (MMSE) with RH who scored a very low, six out of 30.
KR informed the Tribunal that she does not believe that RH is as cognitively compromised as reports from others indicate and that when with her he engages in sensible conversation. This is counter to the evidence provided from the hostel that RH is very confused most of the time and requires direction to the toilet, dining room and to his own room within the hostel. The Public Advocate advised that he had visited RH and found him cognitively compromised to the point that it was not possible to gain an informed view from him.
The Tribunal found the weight of documentary and oral evidence supported the finding that RH satisfies the criteria in s 43 of the GA Act in that he no longer has the capacity to make reasoned decisions about personal matters such as his health care and accommodation needs.
Need for a guardian
As set out in the GA Act, the appointment of a guardian requires the Tribunal to find there is a need for an order. That entails consideration of whether the needs of the person can be met by any means less restrictive of their freedom of decision and action.
In this case, while there is a continuing need for a decision‑maker in relation to medical and health care there is also now a need for a decision‑maker in relation to appropriate long term accommodation for RH.
Both written and oral evidence was provided to the Tribunal that RH can no longer be appropriately cared for in his current hostel accommodation. KR strongly disagrees with this assessment and consequently refused to sign the approval form for an Aged Care Assessment Team (ACAT) assessment to be conducted to formally assess RH's current care needs. KR gave evidence that she believes that RH can be adequately cared for in his present accommodation and does not need nursing home care.
Who should be appointed guardian?
Section 44 of the GA Act requires that, before appointing a person as a guardian, the Tribunal must be satisfied that the person will act in the best interests of the person for whom the application is made. The Tribunal had evidence by way of written reports and also provided orally at the hearing, that KR, while well intentioned, is not making medical and health care decisions in RH's best interests. Evidence was provided in relation to several incidences when KR had delayed consenting to appropriate medical treatment for RH causing him unnecessary pain and discomfort.
While the Tribunal is sympathetic to KR's determination that RH not be placed in nursing home care, it is the Tribunal's view, based on evidence provided by other parties, that she is misguided in her attempts to ignore the advice of professionals and prevent such a move occurring. The Tribunal accepts that KR is a true and supportive friend of RH and hopes that she will continue to be very involved in his life. Unfortunately, her enthusiastic and zealous protection of what she sees as RH's interests, clouds her judgment to the point that she is unable to accept that RH is significantly compromised by his progressive dementia. The Tribunal finds that, because of her limited understanding of RH's current needs she is not suitable at this time to be appointed his guardian. RH requires a decision-maker who accepts and understands his current needs. There is no one else in his life who is available to take on the role of decision‑maker at this time leaving the Public Advocate, the guardian of last choice.
Decision and order made by the Tribunal
Taking all of the evidence into account, the Tribunal finds that it is in RH's best interests that the Public Advocate be appointed limited guardian to make decisions as to where and with whom RH should live, his medical treatment and health care decisions and decisions in relation to the possible use of physical and or medical restraints. The Tribunal makes the order for one year during which time KR may come to accept the degree of cognitive impairment suffered by RH and may, if she wishes, be considered again for appointment as guardian.
I certify that this and the preceding [19] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS D DEAN, MEMBER
0
1