SA
[2020] WASAT 96
•19 AUGUST 2020
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: SA [2020] WASAT 96
MEMBER: DR E MARILLIER, MEMBER
HEARD: 5 AUGUST 2020
DELIVERED : 14 AUGUST 2020
PUBLISHED : 19 AUGUST 2020
FILE NO/S: GAA 2727 of 2020
SA
Represented Person
Catchwords:
Guardianship and administration - Capacity for reasonable judgments - Suitable person to be guardian
Legislation:
Guardianship and Administration Act 1990 (WA), s 4, s 40, s 41(3)(a), s 43, s 44, s 64
Result:
Public Trustee appointed plenary administrator, private limited guardian for medical treatment
Public Advocate limited guardian for accommodation and services decisions
Category: B
Representation:
Counsel:
| Represented Person | : | N/A |
Solicitors:
| Represented Person | : | N/A |
Case(s) referred to in decision(s):
XYZ (Guardianship) [2007] VCAT 1196
REASONS FOR DECISION OF THE TRIBUNAL:
(The application was heard and orders made on 5 August 2020. Oral reasons were delivered on 14 August 2020. The following reasons comprise the reasons that were delivered orally, subject only to minor editing to anonymise parties, improve clarity of expression and set out).
Introduction
This matter came before the Tribunal by way of an application dated 13 July 2020 made under s 40 of the Guardianship and Administration Act of 1990 (WA) (GA Act). The application was made by social worker TH on behalf of the West Australian Country Health Service (WACHS) Karratha (applicant), seeking the appointment of an administrator for the estate of, and a guardian for SA.
The application was made because SA was hospitalised and had been found not to be competent by a specialist geriatrician. Particularly the treating team were concerned that SA did not have the insight and judgment required to make a decision about where he should live and they were concerned that he was vulnerable to elder abuse. He had recently moved from the hospital to a respite place at Yaandina Aged Care Facility (Yaandina) which was to end on 13 August 2020. SA had been approved for permanent residential care but there were concerns regarding whether an appropriate bed would be available and how arrangements would be made without the appointment of formal substitute decision-makers.
The matter had originally been listed for hearing on 9 September 2020 and a referral made for an investigation by the Office of the Public Advocate (Public Advocate). In view of a request for urgency by the applicant because of the pending loss of the respite bed, the hearing was brought forward 25 August 2020.
The application did not identify proposed appointees as guardian or administrator. Due to the urgency of an accommodation decision, time for service was shortened to less than 14 days pursuant to s 41(3)(a) of the GA Act as the Tribunal determined that exceptional circumstances existed.
Present at the hearing were SA, his daughter RP, his partner CN, and the applicant represented by social worker TH, senior social worker AS, Dr F, and Aboriginal Health Worker RH, clinical lead from Yaandina Community Services JW and an investigator from the Public Advocate RM.
The Tribunal was notified the day before the hearing that an interpreter had not been able to be secured. Before conducting the hearing, I offered to adjourn the matter and asked SA and his family what they would prefer. SA indicated that he was happy to proceed with the assistance of his family members should he have trouble following the hearing.
Relevant legislation
The issues for determination are identified by having regard to relevant provisions of the GA Act. Section 4 of the Act states the principles that the Tribunal must observe in dealing with any application. Sections 43 and 64 of the GA Act respectively specify the tests to be met before a guardianship and administration order can be made. The questions the Tribunal needs to answer in this type of application are:
Firstly, is SA a person for whom orders can be made? Under s 4 of the GA Act anyone aged 18 or over is presumed to be capable of making reasonable judgments in respect of the person and the estate unless the contrary is proven to the satisfaction of the Tribunal.
Secondly the Tribunal needs to determine if there is a need for orders. If there is a less restrictive option that allows the person's health and safety and financial affairs to be adequately looked after, then orders may not be made.
If the first two questions are answered in the affirmative, the following issues arise:
•Who should be appointed as the guardian and/or administrator?
•What do the orders need to cover to meet the needs of SA?
•How long should the orders run for before they are reviewed again in the Tribunal, noting that the longest orders that can be made in such a case would be for five years?
At all times the best interests of SA are the primary concern of the Tribunal. His views and wishes should be ascertained where possible.
Any order made must be in terms that impose the least possible restrictions in the circumstances on the person's freedom of decision and action.
Capacity
The Tribunal received extensive written submissions from the applicant in advance of the hearing. This included the medical report of Dr F dated 30 July 2020. This reported a Kimberley Indigenous Cognitive Assessment (KICA) score performed 7 May 2020 in which SA scored 26/38. Dr F reported that he had known SA for more than nine years and had seen him more than 20 times in the last 12 months. He diagnosed moderate dementia based on an observed decline over the last nine years and the KICA which was done in his presence in May. He reported that this diagnosis was progressive and that he felt it had already progressed to the point where he found that SA was incapable in all areas of personal and financial decisionmaking.
The report was summarised during the hearing and Dr F confirmed those findings and reiterated that he had known SA for many years and that he had remembered him being a robust presence in any gathering. He confirmed that he had observed an insidious decline in his abilities to manage both his safety and his welfare. Dr F expressed his concerns about SA's ongoing vulnerability and the likelihood of further decline. Dr F noted that SA was extremely loyal to his family with great pride in RP and deep love for CN. He felt SA had become more suggestible. Dr F found that SA was not compliant in following medical advice and being able to apply it to his own needs. He observed an overarching desire to please the people that SA was with at the time. He reported seeing SA present in extremis with congestive cardiac failure and fluid overload on multiple occasions in the emergency department. He reported SA saying 'they made me drink, they gave me alcohol to drink'. Dr F felt that those at home were not assisting SA in maintaining the fluid restriction which is recommended to decrease the risk of decompensated heart failure. Dr F found that SA is very agreeable, but does not have the capacity to exercise reasonable judgment in his own best interests.
The Tribunal also received a medical report from specialist geriatrician Dr G and a copy of a letter from Dr G to another GP, Dr B, describing a tele-health consultation conducted on 16 June 2020. The tele-health consultation was noted to be in some ways suboptimal due to technical issues that may have impeded some aspects of communication. Dr G in his letter described SA as living in Homes West accommodation with a grandson who had now moved to another town and his partner CN intermittently. He stated that he had been informed by the treating team that this was an abusive relationship. Dr G noted that he had looked through the discharge summaries and found innumerable admissions to hospital with congestive cardiac failure, renal problems, poor compliance and that most recently SA had been admitted with osteomyelitis of his right ankle following from trauma and was requiring long-term intravenous antibiotics. Dr G noted that the KICA had improved and that SA scored 34/39 at pre-assessment for the consultation on 16 June 2020. He found however on the presentation of SA on 16 June 2020 that he did not have the insight and judgment to make a decision about his future care despite the KICA score. Dr G supported the application to the Tribunal for appointment of an administrator and a guardian.
In his medical report of 26 July 2020 Dr G again reports that there is a KICA score of 34/39 but that his observations suggested SA had no insight into his needs and care. He found he was unsure regarding SA's capacity for simple and complex financial, legal and medical treatment decisions but he found that SA was incapable of making decisions regarding where he should live and support services.
Dr B in his referral to Dr G on 28 May 2020 stated there was long-term evidence of abuse from his partner (verbal, physical, emotional and financial). He stated that SA was fearful of his partner and found it difficult to oppose her wishes. Dr B noted that SA's daughter RP was found to be a stable and wise advocate for him and was recognised by the hospital as his carer.
A service provider report from TH on 23 July 2020 informed the Tribunal that RP is the only child of CN and SA. TH noted that CN is now expressing a wish to care for SA and mentions previous issues with alcohol abuse. She characterises this as a volatile relationship. SA's previous bank account was closed as withdrawals were being made and it was not clear by whom. A key card was raised for a new account and held at the bank and RP has been buying things for SA from her own funds. TH reported that SA is vulnerable to exploitation giving his key card and money to people. She reported that he was not able to understand or follow instructions of doctors but accepted services. SA needed assistance for diabetic management and she had concerns for his safety if he was discharged home. TH confirmed at the hearing that these concerns persist. She was still not quite sure of SA's understanding about what would be in his best interests and she wondered if elder abuse had become a normalised behaviour for him.
Medical records from Karratha and Roebourne Hospitals and outpatient records from visits to SA at Yaandina from 21 July 2020 and 20 June 2020 and details of family meetings were also before the Tribunal, as was an email from 3 June 2020 from TH to other members of the social work team in which TH details SA telling her that his grandson would slap him across the face when he did not take his medication.
I note that CN became distressed later in the hearing but was able to ask AS and RH to explain to the Tribunal on her behalf that she denied allegations of abuse to SA. She particularly denied that SA was ever forced to drink alcohol. She explained that SA would see other people drinking and would want to have some too, but that no one forced him. She said she had never witnessed her grandson hitting SA.
Social worker AS reported that she always had to reintroduce herself each time she met SA and had noticed his vulnerability. She reported that he had clear ideas about his wishes but no full understanding of the consequences. SA had expressed worries about going home especially if other people were also drinking.
Aboriginal support worker RH reported that SA had disclosed abuse but had then also indicated that he wanted to go home to his wife and grandson. He felt that SA understood the need for help and would accept it but lacked insight into why that was the case. RH agreed that SA would not be able to arrange supports for himself on his own.
JW reported that she had known SA for two months and agreed with Dr F. She found that SA had a big personality and came to Yaandina happy and well on discharge from hospital. She reports that he has a very poor understanding of diabetes, insulin, his medication and the need for dressings to his wounds. JW reported that prior to admission SA had not been eating well, but now has put on some weight and has a good appetite. She also reports that he received a huge power bill while at Yaandina despite the fact that he had been hospitalised for some months prior. The staff needed to provide assistance to him to pay that. He has repeated his concerns to the staff at Yaandina about people drinking at his home and previously being assaulted.
RP reported that since her father had begun to become unwell she felt that he wasn't 'all there' in the way that he used to be. She felt that he had improved a lot during his long hospitalisation and the time at Yaandina. She feels that he would only be able to make good decisions if she was there to help.
SA expressed that he felt that they should be able to manage at home and he thought CN could assist him with his insulin and all needs.
CN indicated that she could see that she would not be able to independently manage SA's medication and would need help with that.
I note the opinion of Billings J in XYZ (Guardianship) [2007] VCAT 1196 that the interpretation of formal cognitive test results should be informed by observation of how people function in real life in assessing capacity.
On the evidence listed above I am satisfied that the presumption of capacity is rebutted and that SA is not capable of looking after his own health and safety, making reasonable judgments in respect of matters relating to his person, managing his own affairs, or making reasonable judgments in respect of matters relating to his estate.
The need for orders
In SA's case, there is no less restrictive alternative to the making of orders as he has not executed an enduring power of attorney or and enduring power of guardianship and no longer has the capacity to make that decision on the basis of the medical evidence. Acute decisions need to be made regarding where and with whom he should live and what support services should be in place. SA has complex medical comorbidities that require ongoing medical treatment decisions by a substitute decision-maker.
Who should be appointed
When determining who should be appointed as the guardian for SA the Tribunal must have regard to s 44 of the GA Act. The Tribunal must form the opinion that a person will act in the best interests of the person in respect of whom the application is made, is not in a position where their interests conflict or may conflict with the interests of that person, and is otherwise suitable to act as the guardian of that person.
On the basis of the evidence from multiple independent professionals involved in the care of SA over many years, and details in discharge summaries and progress notes, it was not open to me to consider SA's partner as a candidate. I note that CN denies the allegations of abuse, however it is not the place of the Tribunal to make a finding in regard to whether or not they are true. Sufficient concern has been raised, that I cannot be satisfied that such an appointment would be in the interests of SA.
The Tribunal notes that SA's daughter, RP, has been constructively involved in making decisions with the various members of the treating team. However, due to the desirability of maintaining supportive relationships within the family unit, she did not feel able to take on the decisions regarding where and with whom SA should live, and to which services he should have access. She was, however, happy to be appointed as the guardian with the function of making treatment decisions for SA, and this appointment was supported by the representatives of the applicant.
RM, investigator from the Public Advocate, supported the appointment of the Public Advocate as the independent decision-maker for the accommodation and services decisions noting the concerns that would be raised by differing views between CN and RP. She agreed that the risk of damaging relationships within the family meant that the appointment of the Public Advocate would be in SA's best interests.
In regards to the terms of the order, in the hope that a broader family appointment might be available once the acute pending decisions have been made, a one year order will be made in the first instance.
In regards to administration it was not felt that there was any alternative to the appointment of the Public Trustee as the plenary administrator for SA for the same reasons that the independent guardian was appointed.
Conclusion and orders
For those reasons the following orders were made at the hearing on 5 August 2020:
The Tribunal declares that the represented person, SA is:
(a)unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all of his estate;
(b)in need of an administrator of his estate;
(c)incapable of looking after his own health and safety;
(d)unable to make reasonable judgments in respect of matters relating to his person;
(e)in need of oversight, care or control in the interests of his own health and safety; and
(f)in need of a guardian.
The Tribunal orders:
Administration
1.The Public Trustee of 553 Hay Street, Perth, Western Australia is appointed plenary administrator of the represented person's estate with all the powers and duties conferred by the Guardianship and Administration Act 1990 (WA).
Guardianship
2.RP is appointed limited guardian of the represented person with the following functions:
(a)to make treatment decisions for the represented person, subject to Division 3 of Part 5 of the Guardianship and Administration Act 1990 (WA).
3.The Public Advocate of David Malcolm Justice Centre, Level 23, 28 Barrack Street, Perth, Western Australia is appointed limited guardian 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; and
(c)to determine the services to which the represented person should have access.
4.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.
5.The administration and guardianship order is to be reviewed by 4 August 2021.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
DR E Marillier, MEMBER
19 AUGUST 2020
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