SA and JG - [2007] WASAT 113

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: HUMAN RIGHTS

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION: SA and JG [2007] WASAT 113

MEMBER: MS D DEAN (MEMBER)
MS H LESLIE (SENIOR SESSIONAL MEMBER)
DR D STEPNIAK (SENIOR SESSIONAL MEMBER)

HEARD: 12 MARCH 2007

DELIVERED : 16 MAY 2007

FILE NO/S: GAA 81 of 2007

BETWEEN: SA
Applicant
AND
JG
Proposed Represented Person

Catchwords:

Application for guardianship Allegations of physical and emotional abuse Capacity No need for a guardianship order Less restrictive alternative to making an order is operating

Legislation:

Guardianship and Administration Act 1990 (WA), s 4(2), s 4(2)(c), s 43, Pt 2

Result:

The application was dismissed

Category: B

Representation:

Counsel:

Applicant: Self-represented
Proposed Represented Person : Self represented

Solicitors:

Applicant: Self-represented
Proposed Represented Person : Self-represented

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

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

An application for guardianship in respect of JG was made by an ex‑carer. JG was a young man who, several years previously, suffered a serious head injury leaving him with significant cognitive and physical deficits. JG received a large compensation payment for his injuries enabling him to live in his own home with 24 hour paid care. JG's mother recruited and managed the carers and continued to play a significant role in his life. The applicant alleged that the mother was both physically and emotionally abusive toward JG and that this had caused the applicant significant trauma from which she had not fully recovered.
Based on evidence from the parties, including medical and allied health professionals, the Tribunal found that JG was a person for whom an order could be made as he lacked the capacity to make reasonable decisions for himself.
From the evidence before it, the Tribunal was satisfied that JG was not being abused and that his needs were being adequately met by the care and support arrangements in place. Additional support and monitoring of JG's situation was planned with the reintroduction of a case manager to oversee his care and welfare. The Tribunal dismissed the application on the basis that there was no need for a guardianship order.

Background

JG is a young man with an acquired brain injury which has left him with significant cognitive and physical deficits. JG received a large compensation payment for his injuries which allows him to live in the community in his own home with 24 hour paid care.
An application for guardianship recommending appointment of the Public Advocate was made by an ex‑carer who alleged physical and emotional abuse of JG by his mother. The carer also alleged that the abuse she witnessed was so severe that it traumatised her to the point that she could no longer continue in her role as carer for JG.

Evidence provided to the Tribunal prior to the hearing

Prior to the hearing, the Tribunal had before it the following written information:
•Extensive submissions from the applicant outlining her concerns about her working conditions when working as a carer for JG, the impact this had on her health, and her concerns that JG is being emotionally and physically abused by his mother. The applicant states that JG has little input into decisions about his day to day life and activities. She believes he should be given more opportunities to make choices about where he goes and what he does. She states that he is left for long periods in his bedroom as punishment for misdemeanours. The applicant also refers to the fact that JG does not have a custom built wheelchair and considers this should be provided.
•A report from the Public Trustee who administers compensation monies paid to JG. In his report, the Public Trustee referred to a report he commissioned to look into the allegations of abuse made by the applicant in this matter. The commissioned report found that there was no substance to the allegations of abuse but made recommendations that appropriate management strategies for JG's inappropriate behaviours be put in place, care plans be reviewed, carers be appropriately trained and a case manager be appointed. The Public Trustee did not release the commissioned report to the Tribunal.
•A copy of a report written by JB for the Public Trustee. JB has known JG and his mother for many years, was previously employed as case manager for JG and was commissioned by the Public Trustee to look into the adequacy of the current care arrangements. Her conclusion was that JG is being adequately cared for under the current care regime.
•A report from Dr Kosterich who has been JG's general practitioner (GP) for six years. Dr Kosterich assessed JG as being incapable of making reasonable decisions in respect of any major aspect of his life and financial affairs. He said JG has "minimal short term memory, minimal insight and no capacity to manage his affairs".
•Photocopies of daily progress notes in relation to JG for the period 15 September 2003 to January 2007. These notes, written by the various carers, detail the day to day activities of JG and his carers.
•Submissions from an ex-carer the Tribunal refers to as carer 1, outlining her concerns about what she perceives as excessive control of JG by his mother. Carer 1 referred to seeing JG's mother "hit him repeatedly with her hand on the shoulders and head". She states that JG is punished by having his cigarette supply restricted, having his artificial legs removed and being put to bed for extended periods.
•At the request of the Tribunal, the Public Advocate conducted an investigation into the application and provided a report of this investigation to the Tribunal. The Public Advocate interviewed several parties including JG, his mother, the applicant and several current and former carers. In his interview with the Public Advocate, JG acknowledged that his mother "gets angry and intimidates him" but indicated that he is "generally" happy with their relationship. All carers and ex‑carers, and indeed the mother herself, acknowledged that the mother, on occasions, shouts at and slaps JG when disciplining him for inappropriate behaviour. The Public Advocate concluded that the implementation of the recommendations made in the unreleased report commissioned by the Public Trustee will ensure that JG is safe and cared for appropriately. The Public Advocate found that although JG is a person for whom an order could be made, the current arrangements constitute a suitable less restrictive alternative to the making of an order.

The hearing

The hearing was attended by JG, several of his carers and ex‑carer , his mother, who was represented by counsel (counsel), representatives of the Office of the Public Advocate (Public Advocate), representatives of the Office of the Public Trustee (Public Trustee), JB who had been case manager for JG and is the author of a report commissioned by the Public Trustee, and several observers.
The applicant informed the Tribunal that during the period that she was paid to care for JG, she witnessed verbal and emotional abuse of JG by his mother. She said that JG had witnessed her being verbally abused by his mother and she considered this, in itself, to be abusive of JG. She informed the Tribunal that she was so traumatised by her experience that her health had been compromised, she had to leave her employment and is taking legal action in relation to this and her other health concerns.
The applicant described an incident of verbal abuse precipitated by her report to the mother about JG's inappropriate behaviour at a swimming pool. The applicant referred to "the torrent" of verbal abuse by the mother and the threats to take away privileges which she said she believes can be worse than physical abuse in its effect on the person. She was reluctant to describe this or other events in detail explaining that it was "too painful to repeat here". She said she was reluctant to verbalise in detail her concerns in the presence of JG.
The Tribunal heard from another ex‑carer (carer 1) who said the mother verbally abused JG frequently. In her written submission, carer 1 said she has seen the mother "hit [JG] repeatedly with her hand, on the shoulders and head". In evidence provided to the Tribunal at the hearing, carer 1 said that approximately two to three years ago she saw the mother "beat [JG] one night as a disciplinary action". She said the mother saw her watching "so she turned around and hit him again to prove to me that she could hit him and she was entitled to hit him".
Carer 1 said she believes that she is the only one who has witnessed any physical abuse of JG by his mother. It transpired from carer 1's evidence that she did not, as she would normally do when significant incidences occurred, write a report in the daily progress book about the witnessed incident of physical abuse. She could not remember why she had not recorded the incident in the daily record book but recalls being extremely upset by the incident. Initially, when asked by counsel when the incident occurred, she said "I think you could look it up because I would have recorded it". When informed by counsel that the incident is not recorded in the daily record book, carer 1 suggested that the pages may have been "ripped out" and then stated "I can't remember back two years ago what was written in a book. Ridiculous".
In response to questions from the Tribunal as to whether she has other concerns about JG's safety and welfare, carer 1 went on to inform the Tribunal that she is concerned that JG "has no voice at all". The mother makes all his decisions for him "right down to what he eats". Evidence provided by counsel was that some control needs to be exercised over what JG eats to ensure that he has a nutritious and balanced diet. Carer 1 said that she felt that without compromising the nutritious nature of his diet, JG should be able to have more input into decisions about his diet. Carer 1 also referred to what she saw as inappropriate rationing of JG's cigarette supply. She was critical of what she said are the very limited opportunities JG has to socialise or interact with persons other than his family and carers.
Another ex‑carer (carer 2) informed the Tribunal that, like carer 1 she had concerns about JG's lack of choice and involvement in decisions which she felt he could and should have some input into. She reported that she had witnessed some verbal abuse by the mother and had seen the mother "grab [JG] by the arm" because he had "acted sexually inappropriately". It was not "really bad". JG was not hurt. She "yelled at him" often but JG "didn't seem to care" probably because it happened so often. When asked if she was aware of any allegations of physical abuse during her time as a carer, she replied that she was aware of the incident described by carer 1 and said that she had, on one occasion herself, not written up an incident of inappropriate sexual behaviour at the pool because the mother would check the notes and if she did not agree with what was written, she would "sack you".
The Tribunal heard from a current carer (carer 3) who said he had been employed to care for JG for approximately 18 months. Carer 3 said his experience with JG was quite different from that of carers 1 and 2. He said he has never witnessed or seen any evidence of physical or verbal violence toward JG. He referred to the mother "telling [JG] off but not inappropriate on any occasion".
He said that JG goes out every day of the week to various activities, including swimming, where he knows and socialises with other people, and singing, which he enjoys and where he socialises with others. He also attends an organised social group for people with disabilities. All of these activities involve JG socialising with people of various ages. In addition, JG goes on other outings such as to the zoo, coffee shops, the beach and concerts. If he requests a particular outing which is deemed to be appropriate, depending on whether this is a minor activity such as a trip to the beach, a coffee shop or something more major and expensive such as a concert which requires the approval of his mother, arrangements will be made for him to go. Carer 3 said he can not think of any occasion that JG's mother has refused permission for JG to attend appropriate requested activities.
Carer 3 said that JG is given choices about many things in his life including around social activities and food. For example, in addition to the set meals menu, he can make choices about whether to have coffee or hot chocolate to drink, dried or fresh fruit on his cereal and other snacks. Choices are built around a set, nutritious menu. Given free choice, it is carer 3's belief that JG will choose to eat non‑nutritious food for all meals.
Evidence was provided by another current carer (carer 4) who is JG's brother and has been his paid carer for several years. Carer 4 said JG is offered a range of choices in his normal day to day activities. Carer 4 emphasised the fact that JG, because of his brain injury and resultant short term memory problems, is not always the best person to know his own needs and limitations. Carer 4 said he has never witnessed his mother physically or emotionally abuse JG. He said what his mother does is use "reality checks" where she points out the possible consequences to JG of some of his inappropriate actions and behaviours.
The Public Trustee reported that, in response to the allegations of abuse, he contracted a private company to conduct an investigation into the allegations. The Tribunal was not provided with a copy of this report but was informed that the outcome was five recommendations in relation to managing JG's inappropriate behaviours and the training, management and support of the carers. In response to the report, the Public Trustee contracted JB, the previous case manager, to look into the appropriateness and possible implementation of the recommendations of the report.
The Tribunal heard evidence from JB, who has known and worked with JG since 1990 when he was admitted to the rehabilitation unit where she was the clinical nurse specialist. She described the strong advocacy role taken by JG's mother in pushing for him to receive a significant compensation payment which allowed him to be accommodated in his own home with 24 hour care.
JB described her own involvement over the years with JG and his mother. JB went into private practice, and in this capacity, took on a case management role for JG and set up care plans and training for staff caring for him. The case management role was successful but costly and was terminated in 2004. More recently, on visiting JG in response to the Public Trustee commissioned report, she assessed the current situation in relation to JG and found that there are written protocols in place but the care plans are missing. The care plans provide staff with strategies to use to manage JG's behaviour which can be inappropriate at times.
Despite the lack of care plans, JB found that JG's current living and care arrangements are such that his "complex needs are being met". She made no finding that the alleged abuse had occurred but recommended that the care plans be reintroduced, written reports in the daily record book be non‑emotive, carers be appropriately trained and a grievance policy be introduced. She said she understood that most of these things are currently in place but they need to be fine tuned and monitored and, in her opinion, this is best done by an independent case manager. With a case manager in place, a carer with concerns about any aspect of the care could address this with the case manager rather than with the mother.
The Public Trustee explained that the current proposed case management role would be less intensive and therefore less expensive than that previously provided by JB. JG's estate could, therefore, afford the case management role currently proposed.
Council advised that JG's mother is in agreement with the appointment of an independent case manager. This was confirmed by the mother in her evidence to the Tribunal.

Legislation

Section 43 of the Guardianship and Administration Act 1990 (WA) (GA Act) provides that, where the Tribunal is satisfied that a person in respect of whom an application for a guardianship order is made:
"(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 … "
The principles to be observed by the Tribunal when making determinations in relation to guardianship orders are set out in s 4(2) of the GA Act.
These principles are:
"(2)(a) The primary concern of the State Administrative Tribunal shall be the best interests of any represented person, or of a person in respect of whom an application is made.
(b)Every person shall be presumed to be capable of ¾
(i)looking after his own health and safety;
(ii)making reasonable judgments in respect of matters relating to his person;
(iii)managing his own affairs; and
(iv)making reasonable judgments in respect of matters relating to his estate,
until the contrary is proved to the satisfaction of the State Administrative Tribunal.
(c)A guardianship or administration order shall not be made if the needs of the person in respect of whom an application for such an order is made could, in the opinion of the State Administrative Tribunal, be met by other means less restrictive of the person's freedom of decision and action.
(d)A plenary guardian shall not be appointed under section 43(1) if the appointment of a limited guardian under that section would be sufficient, in the opinion of the State Administrative Tribunal, to meet the needs of the person in respect of whom the application is made.
(e)An order appointing a limited guardian or an administrator for a person shall be in terms that, in the opinion of the State Administrative Tribunal, impose the least restrictions possible in the circumstances on the person's freedom of decision and action.
(f)In considering any matter relating to a represented person or a person in respect of whom an application is made the State Administrative Tribunal shall, as far as possible, seek to ascertain the views and wishes of the person concerned as expressed, in whatever manner, at the time, or as gathered from the person's previous actions."

Findings and reasons

Capacity

In making a decision as to whether an order can be made, the Tribunal must be satisfied, in accordance with s 43 of the GA Act that the person does not have the capacity to look after their own health and safety or to make reasonable judgments in respect of matters relating to their person or that they are in need of oversight and care by others.
In this case, the Tribunal was satisfied from the evidence before it, including the reports from Dr Kosterich and the Public Advocate, that JG does not have the capacity to make reasonable decisions for himself.
Dr Kosterich assessed JG as incapable of making reasonable decisions in respect of any major aspect of his life. He stated that JG "has minimal short term memory [and] minimal insight into his capabilities to manage his affairs".
The Public Advocate, in her report, referred to JG's brain injury which "affects his frontal lobe and reportedly impacts on his ability to make informed decisions". She found that JG is a person for whom orders can be made but considered the current arrangements a suitable less restrictive alternative to making an order.

Evidence was provided in the written submissions and at the hearing that JG has relied for many years on others to make all the major decisions in his life and it is likely that he will continue to do so.

Need

Being satisfied that the person does not have the capacity to make reasonable judgments for himself, the Tribunal must then address the issue of whether there is a need for an order to be made. Part 2 of the GA Act outlines the principles which guide the Tribunal in making a decision as to need. Section 4(2)(c) states that a guardianship order should not be made if the needs of the person can be met by other means less restrictive of their freedom of decision and action.
In this case, the Tribunal was not persuaded by the evidence provided by the applicant who, while possibly motivated by some concerns for JG's welfare, appeared to be more concerned about the impact her negative experiences have had on her own health. The applicant acknowledged that she did not witness any physical abuse by the mother but relied on a report from carer 1 who said she has witnessed the mother physically abusing JG.
The Tribunal found the evidence of carer 1 less than convincing. She was unable to explain why she had not recorded the alleged physical abuse in the daily record book and indeed appeared, by her comments, to place little weight on the importance of keeping written records of such significant events. The Tribunal is of the opinion that if the incident was as serious and traumatic as reported by the carer, she would remember whether or not she wrote about it in the daily record book and particularly if she chose not to write about it, as it was a requirement that such an incident should be recorded in the record book. Further, the Tribunal found the evidence from carer 1 somewhat contradictory. At one point she said that although she witnessed only one major incident of physical abuse, the verbal abuse was "continuous". She later referred to frequent physical abuse in the order of slaps "while she [the mother] was [verbally] abusing him".
Without the evidence of a contemporaneous written record, the Tribunal must give less weight to carer 1's evidence in relation to the abuse. It is well known that memory can be inaccurate and hindsight can affect recall of events. It was clear from the emotive manner in which she gave her evidence that carer 1 has very strong negative emotions and memories in relation to her time working as a carer for JG.
Carer 2 expressed similar concerns to the applicant and carer 1. Carer 2 said she has witnessed some verbal abuse and "yelling" by the mother and has seen her "grab" JG by the arm. She, like the applicant and carer 1, said she feels that, where possible, JG should have more input into decisions about his own life. Concerns such as this were refuted by the evidence of carer 3 whose evidence about such matters is preferred by the Tribunal.
The Tribunal is concerned that, like carer 1, carer 2 appears to have been discretionary in what she recorded in the daily record book, indicating that practices previously put in place were not being followed. Carer 2 chose not to write up an incident in relation to JG's sexually inappropriate behaviour because of her concerns about her own welfare because the mother could "sack you" if she was displeased with what was written in the book. As with the applicant, the Tribunal found this evidence to be indicative of a concern with the witness' own welfare rather than that of JG.
The current carers, such as carers 3 and 4, present a different picture of JG's care than ex‑carers such as the applicant and carers 1 and 2. who, by their own admission, continue to feel anger and resentment in relation to the time they were employed to care for JG. The Tribunal accepts that carers 3 and 4, one of whom is brother to JG, have some investment in protecting the status quo nevertheless, the Tribunal found the evidence of carer 3 honest and convincing particularly in relation to the outings and socialising provided for JG as well as the choices about aspects of his life provided to JG within a range that does not compromise his care and welfare.
Some of the concerns expressed, such as JG not being allowed to socialise with people his own age, were refuted by carer 3 who explained that JG regularly attends a variety of social events where there are people from different age groups, including his own, with whom he mixes. Similarly, the allegations that JG's life does not waiver from the strict day to day program devised by his mother was refuted and evidence was provided that JG goes on outings of his own choosing such as concerts, beach and coffee shop outings.
The Tribunal accepted the evidence provided by carers 3 and 4, and JB, that JG's needs are, on the whole, being adequately met by the current care arrangements but found that while there is insufficient evidence to indicate physical abuse, there is evidence that emotional mistreatment had been, and is, occurring. In addition, work practices, previously in place, such as recording significant events in the daily record book, which are designed to ensure that JG receives optimal care, are not being followed. Not following these practices may, and possibly has, jeopardised the quality of care received by JG.
The Tribunal was satisfied that, although there may have been instances of what many, including the Tribunal, consider inappropriate and disrespectful verbal outbursts and threats made by his mother toward JG, these, in themselves, do not warrant the appointment of a guardian. The Tribunal accepts that, on the whole, JG's care and welfare is of an appropriate standard, providing him with ample opportunities to socialise and experience many life opportunities.
The Tribunal agrees with JB that the appointment of a case manager to oversee the management of the paid carers and the welfare of JG is in his best interests. This should ensure that JG receives optimal care and that all his needs and rights are met and protected, both now and in the future. JG's mother's use of "reality checks" referred to by carer 4 and "telling off" referred to by carer 3 may be somewhat overzealous at times, and it is to be hoped that these will be modified with the input of the paid case manager.
In addition to the allegations of abuse, another theme running through the allegations made by the applicant and carers 1 and 2 is a lack of input by JG into decisions that he should be able to make. Decisions such as what he eats, where he goes and with whom he socialises, according to the applicant and carers 1 and 2 should, in many instances, be JG's to make. The Tribunal accepts that the mother may have historically exercised excessive control over JG's day to day and life decisions and affairs but also accepts that there is the need for some control to manage JG's limited impulse control and socially inappropriate behaviours which, on occasions, can cause harm to others. The introduction of a case manager to oversee and monitor the carers, care regime and JG's welfare should go a long way toward alleviating these reported concerns.
In making its decision, the Tribunal must consider the best interests of JG, and supports, from the evidence provided, the proposal that it is in JG's best interests for the reintroduction of a case manager to monitor and oversee his care regime. This is a less restrictive alternative to making an order.

Decision

After considering all the evidence provided in the written reports and at the hearing, the Tribunal is satisfied that JG is a person for whom an order could be made but finds that there is no current need for an order. The Tribunal therefore dismissed the application.

I certify that this and the preceding [45] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS D DEAN, MEMBER