RS and JEM
[2009] WASAT 202
•20 OCTOBER 2009
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: HUMAN RIGHTS
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: RS and JEM [2009] WASAT 202
MEMBER: JUDGE J ECKERT (DEPUTY PRESIDENT)
MR J JAMES (SENIOR SESSIONAL MEMBER)
MS M JORDAN (SENIOR SESSIONAL MEMBER)
HEARD: 7 AUGUST 2009
DELIVERED : 20 OCTOBER 2009
FILE NO/S: GAA 1125 of 2009
BETWEEN: RS
Applicant
AND
JEM
Represented Person
Catchwords:
Capacity - Family conflict - Alcohol addiction Guardian - Public Advocate Contact - Travel outside Western Australia
Legislation:
Guardianship and Administration Act 1990 (WA): s 17A, s 43, s 44, Div 3 of Pt 5
State Administrative Tribunal Act 2004 (WA): s 27, s 29
Result:
Application dismissed and order appointing the Public Advocate as guardian for the represented person confirmed and additional functions regarding contact and travel included
Category: B
Representation:
Counsel:
Applicant: Self represented
Represented Person : Self represented
AM and SM: Mr J Steedman
Solicitors:
Applicant: N/A
Represented Person : N/A
AM and SM: Karp Steedman Ross-Adjie
Case(s) referred to in decision(s):
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
Following an application by the daughter of a man suffering depression, dementia and alcoholism, the Tribunal constituted by a single member appointed the Public Advocate as the man's guardian to make limited decisions concerning accommodation, medical treatment and access to services.
The daughter sought review of those decisions. Despite her initial application, she now considered that her father had full capacity to make lifestyle decisions and did not need a guardian.
The Tribunal found that because of the man's depression, dementia and alcohol abuse he was unable to make decisions for himself about his person. He was at risk because he was not able to manage complex decisions and had a lack of insight into his alcohol use.
The Tribunal found that neither the daughter nor the man's son were suitable for appointment as guardian due to the high level of conflict between the siblings.
Having considered all the material before it, including medical and other professional reports and submissions from the daughter, son and the Public Advocate, the Tribunal concluded that the Public Advocate should be appointed the man's guardian with limited functions to make decisions regarding accommodation, medical treatment, access to services, travel and contact.
First Application
On 11 February 2009, RS filed an application seeking appointment as guardian for her father, JEM.
In her application, RS stated that her father had diminished responsibility in that he is unable to care for himself: he suffers from depression; he has diabetes and a hernia, and is not able to regularly self medicate; he uses alcohol to a point where he loses control of his decision-making abilities and wanders away from his house. In addition, he suffers poor short term memory.
RS stated that her father's alcohol addiction resulted in him losing a great deal of money in bad decisions, for example, the loss of $70,000 three or four years ago and since then, having lost a further $25,000 on gambling. This money was half of a sum of $50,000 RS had placed in his bank account.
The medical evidence filed by RS in support of her application included:
1)A report from Sir Charles Gairdner Hospital (SCGH) medical officer, Dr Lillian Daniels, who stated that JEM had impaired cognitive function with a diagnosis of depression and dementia, and that his impairment was fluctuating. At the time of writing the report, Dr Daniels stated that JEM is not capable of making reasonable decisions in relation to his personal health care, his living situation or his financial affairs, and is not capable of making a valid enduring power of attorney. His MMSE score is 19/30, with poor orientation and recall indicating possible difficulties coping at home, as suggested by a review in 2007. JEM had been counselled against consuming too much alcohol, but he refused to cease alcohol consumption.
2)A report from SCGH social worker, Lola Moussallem, stated that JEM was admitted to SCGH on 24 January 2009 with alcohol intoxication, poorly managed diabetes and depression. He had constantly asked to be discharged and so was discharged into the care of RS on 2 February 2009, but returned to SCGH the next day. RS revealed that her way of managing her father on his discharge on 2 February 2009 was to lock him inside his house and cut off his telephone line. She referred to this as 'tough love'. However, JEM telephoned the police who contacted his son, who then attended the house and unlocked the door. JEM then purchased more alcohol and called an ambulance to take him back to hospital where he was readmitted on 3 February 2009. The social worker reported that RS and her brother AM do not have a good relationship and do not speak, but communicate through text messages concerning their father. They disagree on how their father should be managed in the community. The social worker reported that on 28 January 2009, Dr Paul O'Hara, psycho-geriatrician deemed JEM not competent to make lifestyle decisions. The social worker was of the opinion that JEM requires residential care as he needs constant supervision and assistance in order to remain safe due to his cognitive impairment and his propensity to drink to excess.
3)An occupational therapy report and notes made by Dr Paul O'Hara confirm that on examination, JEM has poor short term memory, poor appreciation of his deficits and poor ability to manage. Dr O'Hara noted that JEM focuses on death, though he denies a wish to die or suicidal intent: 'death is a transition and I am ready for it'. JEM sees no reason to give up drinking and Dr O'Hara noted that he is apparently unaware of his daughter's care of him. Dr O'Hara's notes conclude that JEM is currently not competent to make reasoned decisions about care, and guardianship and administration could be sought or alternative placement arranged.
The first application was heard by the Tribunal on 6 April 2009 and RS, her father, brother, sister in law and the Office of the Public Advocate were heard on the application.
The decision made by Senior Sessional Member Ms O'Toole was to appoint the Public Advocate as JEM's guardian with the limited functions of deciding the issues of accommodation, treatment and services. The order was made for 12 months, to be reviewed by 6 April 2010.
In making its decision, the Tribunal found that JEM was a person who is unable to make reasonable judgments with respect to matters relating to his person, and that he needs oversight, care or control in his own health and safety interests, and was in need of a guardian. The Tribunal found that due to the conflict between RS and AM and the lack of communication between them, it was necessary to appoint the Public Advocate as guardian of last resort for a period of 12 months, to be reviewed at that time to see if a family member could then take over the role as guardian if the conflict between family members had been resolved.
This Application
On 5 May 2009, RS filed this application under s 17A of the Guardianship and Administration Act 1990 (WA) (GA Act) to have the decision made on 6 April 2009 reviewed by the Full Tribunal. RS sought the dismissal of the order made on 6 April 2009 on the basis that her father, JEM, who was still an in-patient at SCGH, had full capacity to make lifestyle decisions.
This application was heard on 7 August 2009 by Deputy President Judge Eckert and Senior Sessional Members Ms M Jordan and Mr J James. At the hearing, we heard from JEM, RS, AM, SM, who is AM's wife, the lawyer for AM and SM, Mr Steedman, and the delegated guardian. At the conclusion of the hearing, we announced our decision to appoint the Public Advocate as limited guardian with the functions of deciding accommodation, treatment, services, contact and travel. RS and her husband, KS, were upset by our decision and remonstrated with us, making it very difficult to set out our detailed reasons for decision. These written reasons are therefore an edited version of the transcript, combined with the detail we would have given if RS and KS had allowed us the opportunity to give our reasons without noisy interruptions.
Medical and other reports
The Tribunal received a letter from Dr Sivanthi Senaratne, General Physician at SCGH, dated 10 June 2009, in which he outlined his concerns about JEM's long term care, stating that JEM has had frequent hospital admissions since 2005 with problems related to alcohol abuse. He provided details of his admission on 3 February 2009 after being locked in his house by RS. He also stated that JEM was previously a highly functioning, educated person.
JEM scored 27/30 on the cognitive function test, which is indicative of mild cognitive impairment, but he also demonstrated features consistent with frontal lobe dementia from alcohol abuse with euphoria, disinhibition and lack of ability in judgment, especially regarding his heavy alcohol use and his future.
Medical opinion was that JEM would be best managed in an institution, but disagreement between his son and daughter about his future needs complicated this.
The Tribunal also had the benefit of a report by Elizabeth Vuletich, Clinical Neuropsychologist, dated 3 July 2009 which reported in summary that:
Results from the assessments undertaken on 8 and 10 June 2009 revealed a clear impairment in verbal memory as well as inefficiencies in verbal attention, speed of information processing, cognitive flexibility and planning/organisation. Other aspects of his cognition including auditory working memory, visual scanning and attention, perceptual and visiospatial abilities and language skills, were consistent with expectation and are considered intact.
With regard to his decision-making capacity, [JEM] was capable of managing lower-level, day to day decisions, though had some difficulty generating, and giving full consideration to alternative possibilities for more complex decisions. It is clear that [JEM] is unable to hold all the relevant information in mind for such complex decisions. Additionally, while he is able to eloquently communicate his needs, he demonstrated a somewhat shallow appreciation of all the risks, benefits and potential consequences of his decisions. He is also vulnerable to making impulsive and unconsidered choices, and not fully rationalising through all alternatives and possible consequences. He appears very trusting and delightfully optimistic, which may render him susceptible to coercion.
Whilst I am not of the opinion that [JEM] necessarily requires a guardian (providing he does not relapse to heavy drinking), it is likely he will need significant support with respect to entering into complex decisions regarding accommodation and health. He will also likely require some guidance to elicit all possible information and alternative choices for such decisions.
We also had a report from Dr Helen McGowan, Psychiatrist of Old Age, dated 4 August 2009, who referred extensively to the report by Ms Vuletich and to her own assessment of JEM in which he illustrated continuing limitation in his capacity to make complex decisions in his own best interests. She stated that if the family could agree on care and accommodation issues, a formally appointed guardian would not be necessary. However, if these issues continue to be disputed, she recommends that the guardianship order be continued in order to monitor, review and decide JEM's living arrangements.
RS provided us with a report by Dr Zlatan Golic, consultant psychiatrist, dated 5 August 2009. RS had taken her father to see Dr Golic in order to get a report from him as to JEM's status. Dr Golic informed us that JEM had been discharged from SCGH to reside with RS approximately a week prior to the appointment. Dr Golic concluded that:
Taking into consideration [JEM's] mental state and performances on his cognitive testing, I believe that [JEM] is capable of managing his day to day needs. With the support of his family it appears that [JEM] is able to look after his own needs including his health, safety and living arrangements. It appears that he is able to make reasonable judgments in respect to his own affairs but excluding the complex ones. Taking in consideration some degree of impairment in his frontal executive functions, he could have difficulties to deal with more complex decision making process. However, he is able to competently communicate his own needs. In addition, [JEM] is aware that the relationship between his previous alcohol abuse and its impact on his overall functioning. It appears that following his current abstinence from alcohol he was able to achieve a near premorbid level of functioning for his age. Providing that he continues to abstain alcohol he is most likely to remain reasonably well and able to look after himself with additional support from his family.
We also had a report from Ms Fraser, another social worker at SCGH, who had the care of JEM from 1 March 2009 until his discharge on 31 July 2009. Ms Fraser informed us that following the appointment of the Public Advocate on 6 April 2009, consent had been given for JEM to be assessed for residential aged care by a geriatrician on 10 May 2009. JEM was approved for low level permanent residential care. However, JEM remained an inpatient at SCGH as his daughter had made an application to the Tribunal to have the guardianship order reviewed on the basis that her father had either regained capacity or had never lost capacity to make lifestyle decisions. As a result of this, JEM was referred for neuropsychology testing, the outcome of which was that the treating team deduced JEM does not have capacity to make lifestyle decisions. Pending the outcome of this application, the guardian did not consider it appropriate to move JEM from SCGH into more appropriate accommodation. Ms Fraser went on to report of an altercation at the hospital on 31 July 2009 when RS, with the assistance of her husband, took JEM from the hospital and packed his belongings informing the hospital staff that he would not be returning. This action was taken without the consent of the appointed guardian. There was reference to aggressive and inappropriate behaviour on the ward by RS as a result of which the Medical Unit at SCGH are no longer willing to accept the care of JEM in future.
Ms Fraser provided information concerning the difficult relationship between RS and AM and that their father appears to have a good relationship with both of his children. In Ms Fraser's assessment she does not believe that his wellbeing will be maintained if he resides with either of his children as he requires a stable, consistent environment to function at his best level. Ms Fraser reported that the treating team at SCGH do not believe that either RS or AM would be appropriate people to take on the role of guardian or administrator for JEM, nor should they be appointed jointly. The reason for this is the ongoing conflict between them that has been displayed over the past seven months and, regardless of any agreements put in place, the treating team believe JEM would suffer due to his children's inability to cooperate with each other. The treating team are concerned that if he lives with either of his children JEM would be prohibited from spending adequate time with his other child or family. The treating team also strongly recommend that JEM be placed into residential aged care which would provide a stable environment and ensure his care needs are met, and his alcohol consumption monitored. It would also ensure that his children have equal access to their father. RS travels overseas frequently and has suggested that she take JEM with her when travelling. However, the treating team feels that this continual change would be detrimental to his cognitive state, and would provide an unsuitable level of instability in his life.
Evidence of RS
RS told us that she made the original application to have a guardian appointed for her father with good intentions, although she conceded that she made the application so as to break the 'deadlock' with her brother. This raises some questions about her motivation for bringing the first proceedings, and then subsequently, these proceedings. She had been given the form by a social worker, but although she is an informed person, she had no idea how these events would evolve. RS confirmed that she does travel, being a 'person of the world', but mainly to Singapore and said that she would be unlikely to do as much travel if her father lived with her. Further, RS explained that she had not taken her father travelling before as he did not have a passport, and would have had to come into the city to organise the paperwork. AM told us that his father would not be able to tolerate any travel, given that he complains that a trip to Mandurah is too far to travel. When asked about the provision of services to her father, RS told us that she did not want strangers coming to her house.
Evidence of the delegated guardian
The delegated guardian told us that he had seen JEM at RS's house since his discharge from hospital. He said that RS had attempted to contact him on the day that she took JEM from the hospital, but had been unable to do so. The delegated guardian also told us that it was too early for a decision to be made as to whether it is in JEM's best interests to remain living with his daughter. If reappointed, he would give further consideration as to whether it would be more appropriate for JEM to be placed into a low care residential facility, as recommended by his treating team.
Evidence of JEM
We spoke with JEM in the absence of all the parties except the delegated guardian who remained present throughout our discussions with JEM and who also participated in the discussion. In that 'closed discussion', JEM confirmed his wish to live with his daughter as he enjoys a good relationship with his grandson. He told us he would accompany his daughter and son inlaw when they travel overseas, predominantly to Norway he thought, although he had not travelled overseas since he came to Australia many years ago. He had been enjoying his time with his daughter, doing all the cooking and washing his own clothes. He said that his daughter has plenty to do and so as far as possible he helps her. He didn't understand why his children didn't get on and he said his son does not come to his daughter's house, but he sees his son each weekend. When talking about his background JEM lapsed into confabulation on several occasions, nominating prominent persons as people he had taught during his teaching career.
JEM told us, and he also told all who interviewed him, that he wished to make his own decisions and that his own decision would be to live with his daughter, RS. However, Ms Vuletich commented in her report that JEM expressed no specific concerns about having a public guardian appointed, but that he would prefer to make his own decisions, or have one of his children do this on his behalf. She also stated that he acknowledged the existing tension in the family, but was adamant this would not impact on his contact with either side of his family. However, he was able to appreciate the potential impact this conflict may have on his children acting as joint guardians.
We were able to discount the wishes of JEM as to the appointment of a guardian, given the medical evidence received as to his capacity, and also as to the appointment of one of his children. We did not find that RS is a suitable person to carry out this role. AM did not seek to be appointed to this role and he indicated support for the appointment of the Public Advocate to be his father's guardian.
Relevant legislation
The following sections of the GA Act are relevant: s 17A, s 43, s 44.
17A. Review
(1)Where the State Administrative Tribunal consisting of one member makes any determination, a party who is aggrieved by the determination may request the President to arrange for a Full Tribunal to review the determination, and the President shall comply with any such request.
(2)A request under subsection (1) is to be made within 28 days of the date of the determination or, if the Full Tribunal considers there is good reason for making the request outside that time, such further time as the Full Tribunal allows.
43. Making of guardianship order
(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 his own health and safety;
(ii)unable to make reasonable judgments in respect of matters relating to his person; or
(iii)in need of oversight, care or control in the interests of his 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.
…
(3)An appointment under subsection (1) or (2a) may be made subject to such conditions and restrictions as the State Administrative Tribunal thinks fit.
(4)An order appointing a limited guardian shall specify the functions that are vested in the limited guardian under section 46.
44. Who may be appointed guardian
(1)A guardian (including a joint guardian) shall be an individual of or over the age of 18 years who has consented to act and who in the opinion of the State Administrative Tribunal
(a)will act in the best interests of the person in respect of whom the application is made;
(b)is not in a position where his interests conflict or may conflict with the interests of that person; and
(c)is otherwise suitable to act as the guardian of that person.
(2)For the purposes of subsection (1)(c) the State Administrative Tribunal shall take into account as far as is possible -
(a)the desirability of preserving existing relationships within the family of the person in respect of whom the application is made;
(b)the compatibility of the proposed appointee with that person and with the administrator (if any) of that person's estate;
(c)the wishes of the person in respect of whom the application is made; and
(d)whether the proposed appointee will be able to perform the functions vested in him.
…
As the Tribunal exercises its review jurisdiction when dealing with an application under s 17A of the GA Act, the relevant sections of the State Administrative Tribunal Act 2004 (WA) apply to these proceedings:
27. Nature of the hearing
(1)The review of a reviewable decision is to be by way of a hearing de novo, and it is not confined to matters that were before the decisionmaker but may involve the consideration of new material whether or not it existed at the time the decision was made.
(2)The purpose of the review is to produce the correct and preferable decision at the time of the decision upon the review.
(3)The reasons for decision provided by the decisionmaker, or any grounds for review set out in the application, do not limit the Tribunal in conducting a proceeding for the review of a decision.
29. Powers of Tribunal on review
(1)The Tribunal has, when dealing with a matter in the exercise of its review jurisdiction, functions and discretions corresponding to those exercisable by the decisionmaker in making the reviewable decision.
(2)Subsection (1) does not limit the powers given by this Act or the enabling Act to the Tribunal.
(3)The Tribunal may
(a)affirm the decision that is being reviewed;
(b)vary the decision that is being reviewed; or
(c)set aside the decision that is being reviewed and
(i)substitute its own decision; or
(ii)send the matter back to the decisionmaker for reconsideration in accordance with any directions or recommendations that the Tribunal considers appropriate,
and, in any case, may make any order the Tribunal considers appropriate.
(4)The fact that a decision is made on reconsideration as required under subsection (3)(c)(ii), does not prevent the decision from being open to review by the Tribunal.
(5)The decisionmaker's decision as affirmed or varied by the Tribunal or a decision that the Tribunal substitutes for the decisionmaker's decision
(a)is to be regarded as, and given effect as, a decision of the decisionmaker; and
(b)unless the enabling Act states otherwise or the Tribunal orders otherwise, is to be regarded as having effect, or having had effect, from the time when the decision reviewed would have, or would have had, effect.
(6)Without limiting subsection (5)(a), the decisionmaker has power to do anything necessary to implement the Tribunal's decision.
(7)Despite subsection (5)(a), the decision as affirmed, varied, or substituted is not again open to review by the Tribunal as a decision of the decisionmaker.
(8)Subsection (5)(a) does not affect an appeal under Part 5 against the Tribunal's decision.
(9)To avoid doubt it is declared that this section and section 27 do not extend to requiring or enabling the Tribunal to deal with a matter that is different in essence from the matter that was before the decisionmaker.
Capacity
There is a consensus of opinion in all of the medical and other professional evidence received by the Tribunal that JEM is unable to make decisions of a more complex nature. It is clear that with the passing of time from 3 February 2009 to 31 July 2009 when he was an inpatient of SCGH, a complete abstinence from alcohol has shown an improvement in JEM's level of functioning in day to day matters. However, Ms Vuletich, Dr Golic and Dr McGowan all agree that he is not able to manage more complex decisions.
Based on this medical evidence and that of the two SCGH social workers, we find that JEM is a person who is in need of oversight, care or control in the interests of his own health and safety. We also base this conclusion on the evidence before us of the danger to himself that JEM poses when he is left to his own devices, as he has been in the past. In particular, JEM had a regular pattern of drinking followed by admission by ambulance at his own request to SCGH on a nightly basis. He also displayed an inability to deal appropriately and safely with the world around him, including an incapacity to undertake everyday tasks, such as safely crossing a street. He therefore poses a risk to his own safety.
Need for a guardian
As set out by Dr McGowan and supported by other professionals who have treated JEM, were JEM's two children able to agree upon what his future needs are and act together in supporting their father, there would be no need for a guardian to be appointed. However, as it is clear to us that JEM's two children hold such animosity towards each other that they are unable to communicate at all and do not agree on his current status and his future care, there is a clear need to appoint a person with the authority to make the necessary lifestyle decisions for JEM.
Who is a suitable person to be appointed?
Initially, RS sought the appointment of herself as her father's guardian because he lacked the necessary capacity. However, the Tribunal appointed the Public Advocate because of the conflict between RS and AM. RS and KS do not approve of the appointment of a guardian outside of the family, although they do not concede that any other family member (such as AM) should be appointed. In seeking review of the original decision to appoint the Public Advocate, RS argued that her father was not a person who fulfilled the criteria for a guardian to be appointed and that he had full capacity. RS was not seeking to be appointed as guardian, but rather she was seeking revocation of the order on the grounds that her father had capacity.
However, in deciding that a guardian should be appointed, we must consider the requirements of s 44 of the GA Act. We find that RS is not a suitable person to be appointed as guardian because:
1)evidence was received at the first hearing of RS's care for her father when in Perth, but when travelling overseas which she did frequently, she abandoned any responsibility for him at all;
2)evidence of the manner in which RS managed her father's drinking was to lock him in the house and to exercise 'tough love', as she called it;
3)we heard evidence of RS removing her father from the hospital without the consent of the delegated guardian and against express medical advice, in that the treatment team's opinion was that JEM should be found a low care permanent residence placement;
4)we heard evidence from RS that she would not welcome and did not want services to be provided to her father at her residence as she did not want strangers in her house; and
5)we are concerned by RS's intention to take her father travelling with her overseas in future, without concern as to how this may affect him and without a realistic assessment of his capacity to join her, or alternatively, what was to become of him if he remained in Perth whilst she and her family travelled.
There is continuing conflict between RS and her brother which restricts the ease with which JEM could continue to have a relationship with both of his children. If either child were appointed guardian, it is likely that JEM's relationship with his other child would suffer and their access would be severely limited.
Orders
In light of all the evidence before us, taking into account the conflict between JEM's two children, and all of the medical and allied health reports before us, we are satisfied that JEM is in need of oversight, care or control in the interests of his own health and safety, and find him therefore in need of a guardian. On the basis that neither of his children can be appointed because of ongoing conflict between them, and despite JEM's expressed wishes, we appoint the Public Advocate limited guardian of JEM, with the following functions:
1.to decide where the represented person is to live, whether permanently or temporarily;
2.subject to Div 3 of Pt 5 of the GA Act, to consent to any treatment or health care of the represented person;
3.to determine the services to which the represented person should have access;
4.to decide where, when and with whom the represented person is to travel; and
5.to decide when and with whom the represented person is to have contact.
The Tribunal approves delegation by the Public Advocate of her functions as guardian of the represented person to an officer or employee employed in the Office of the Public Advocate.
This order is to be reviewed by 7 August 2010.
I certify that this and the preceding [38] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
JUDGE J ECKERT, DEPUTY PRESIDENT
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