SH - [2019] WASAT 87 | CaseChat AU

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION:   SH [2019] WASAT 87
MEMBER:   MS F CHILD, MEMBER
HEARD:   18 JUNE 2019 AND 21 AUGUST 2019
DELIVERED          :   11 OCTOBER 2019
FILE NO/S:   GAA 750 of 2019

SH
Represented Person

Catchwords:

Guardianship and administration - Review of guardianship order appointing Public Advocate as plenary guardian - Represented person with acquired brain injury and post traumatic epilepsy - Admissions to hospital with malnutrition and uncontrolled epilepsy - Need for a guardian to ensure medication compliance and access to services - Less restrictive alternatives not appropriate due to history of neglect of health care needs - Mother not suitable for appointment as guardian - Public Advocate reappointed as plenary guardian

Legislation:

Guardianship and Administration Act 1990 (WA), s 4, s 43, s 44, s 44(1)(b), s 44(2)(b), s 44(2)(d), s 51, s 51(2)(b), s 51(2)(c), s 51(2)(d), s 57, s 90, s 110ZD

Result:

Public Advocate reappointed plenary guardian

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:

Introduction

These are the reasons for decisions made in on review of a guardianship order dated 2 March 2018 by which the Public Advocate is appointed the plenary guardian of SH.

Background

SH is a 38yearold woman who has an acquired brain injury and post traumatic epilepsy as a result of injuries sustained in a motor vehicle accident when she was aged 9 years.
SH received compensation for the significant personal injuries she suffered in that accident and those funds are managed by the Public Trustee pursuant to a District Court order. SH lives with her mother, JH and brother, PH, in a house purchased by the Public Trustee in 2001 with compensation funds.
An application was made to the Tribunal in February 2018 seeking the appointment of a guardian for SH pursuant to the Guardianship and Administration Act 1990 (WA) (the GA Act). The application was made by the case manager of a service engaged by the Public Trustee to provide services to SH.
At the original hearing there was some confusion on the part of JH as to who had made the application. JH said she believed that she had made the application. She proposed herself for appointment as guardian.
JH and SH attended the hearing by telephone.
At the time of the original application it was reported that SH had been admitted to hospital for several weeks being described in hospital records as severely malnourished and not taking prescribed anticonvulsant medications for her epilepsy.
SH had reportedly eaten normally and gained weight when in hospital and had been discharged to her mother's care with a number of prescribed medications for control of her epilepsy.
In the months that followed it was reported that SH had not attended arranged followup appointments with a dietician, neurologist and the rehabilitation specialist and had finally been removed by the hospital from its list of patients.
At the original hearing on 2 March 2018, JH said that SH was again not taking the medications prescribed for her and had lost weight.
The Public Advocate was appointed the plenary guardian of SH for review of the order by 2 March 2019.
Oral reasons for the decision were given at the conclusion of the hearing.
In summary, the Tribunal determined on the evidence that there was an immediate need for an independent guardian to oversee SH's health and welfare because:
•SH was completely dependent on others for all her care needs including all oral intake and had lost weight after her discharge from hospital in the context that she had been previously been admitted with malnutrition;
•JH had failed to ensure SH had taken the medication prescribed for her epilepsy with a consequence she suffered uncontrolled seizures;
•JH proposed that SH have a hysterectomy for contraception and because JH asserted that SH's seizures were linked to her menstrual cycle, a link which JH conceded had not been established by any doctor;
•the lack of services received by SH; and
•JH's proposal that SH be moved from her home within the next year to permanent residential care.
The guardianship order was made reviewable in one year.

Review of the guardianship order

Legislation

On review of a guardianship order the Tribunal may confirm, amend or revoke an order (s 90 GA Act).
To confirm a guardianship order on review the Tribunal must be satisfied that the represented person remains a person for whom a guardian may be appointed.
To appoint a guardian the Tribunal must be satisfied that the person concerned satisfies one or more of the subparagraphs in s 43 of the GA Act. The Tribunal must find that the person is:
1)incapable of looking after her own health and safety;
2)unable to make reasonable judgments in respect of matters relating to her person; or
3)in need of oversight, care or control in the interests of her own health and safety or for the protection of others (s 43(1)(b) of the GA Act); and
4)is in need of a guardian (s 43(1)(c) of the GA Act).
Section 43 of the GA Act is subject to the principles set out in s 4 of the GA Act which provides:
(1)In dealing with proceedings commenced under this Act the State Administrative Tribunal shall observe the principles set out in this section.
(2)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.
(3)Every person shall be presumed to be capable of
(a)looking after her own health and safety;
(b)making reasonable judgments in respect of matters relating to her person;
(c)managing her own affairs; and
(d)making reasonable judgments in respect of matters relating to her estate,
until the contrary is proved to the satisfaction of the State Administrative Tribunal.
(4)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.
(5)A plenary guardian shall not be appointed under section 43(1) or (2a) 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.
(6)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.
(7)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.
If the Tribunal is satisfied that a guardian should be appointed it must then consider the suitability of any person proposed for appointment.
Section 44 of the GA Act sets out factors to be taken into account when determining suitability:
(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.
(3)Where a proposed appointee is a relative of the person in respect of whom the application is made, he shall not by virtue only of that fact be taken to be in a position where his interests conflict or may conflict with those of that person.
(4)The fact that a person is the administrator of the estate of a person does not disqualify him from being appointed as guardian of that person.
(5)Except where she is appointed to act jointly with another person or other persons, the State Administrative Tribunal shall not appoint the Public Advocate as a guardian unless there is no other person who is suitable and willing to act.
Section 51 of the GA Act sets out a nonexhaustive list of factors that a guardian must consider when forming an opinion of what is in the best interests of a represented person as follows:
(1)Subject to any direction of the State Administrative Tribunal, a guardian shall act according to his opinion of the best interests of the represented person.
(2)Without limiting the generality of subsection (1), a guardian acts in the best interests of a represented person if he acts as far as possible
(a)as an advocate for the represented person;
(b)in such a way as to encourage the represented person to live in the general community and participate as much as possible in the life of the community;
(c)in such a way as to encourage and assist the represented person to become capable of caring for himself and of making reasonable judgments in respect of matters relating to his person;
(d)in such a way as to protect the represented person from neglect, abuse or exploitation;
(e)in consultation with the represented person, taking into account, as far as possible, the wishes of that person as expressed, in whatever manner, or as gathered from the person’s previous actions;
(f)in the manner that is least restrictive of the rights, while consistent with the proper protection, of the represented person;
(g)in such a way as to maintain any supportive relationships the represented person has; and
(h)in such a way as to maintain the represented person’s familiar cultural, linguistic and religious environment.
(3)Nothing in subsection (2)(a) shall be read as authorising a guardian to act contrary to the Legal Profession Act 2008.

The review proceeding

The statutory review of the guardianship order made for SH was listed for hearing on 1 May 2019 but adjourned at the request of JH's solicitor. The hearing was relisted on 18 June 2019 but adjourned again as counsel for JH had not had access to all the documents in the proceeding. Documents filed with the Tribunal for the review and the original application and a transcript of the hearing of the original application held on 2 March 2018 (original hearing) were provided to the solicitor by order dated 18 June 2019.
The hearing was relisted to 21 August 2019.
On 14 August 2019 the Tribunal received notice that the solicitor for JH ceased to act.
A hearing book of all the documents which had been provided to her former solicitor and to which JH acknowledged she had had access was provided to her for the purpose of the hearing on the day of hearing. The review was heard on that day and adjourned to enable further written submissions to be filed by JH by 4 September 2019.
The decision was reserved and the following are the reasons for the Tribunal's decision made on the review.

Evidence and material before the Tribunal for the review

The Tribunal received reports from the Public Advocate's guardian, a consultant neurologist, a psychologist and occupational therapist and a dietician regarding SH, respite records and a hospital care plan were also before the Tribunal.
An affidavit of JH was filed on 14 June 2019 and a further written submission was provided by her on 4 September 2019.
The Tribunal has also had regard to the material filed for the original application including historical medical records and correspondence and the transcript of the hearing of 2 March 2018.
In the review hearing the Tribunal heard from SH, JH, SH's brother PH, the case manager of SH's services (who was the original applicant) and from the Public Advocate's delegated guardian (guardian).

Is SH a person for whom a guardian may be appointed

A report from Dr F, a rehabilitation medicine specialist dated 22 May 2000 written when SH was 17 years old refers to a 'severe traumatic brain injury' suffered by her. The report is addressed to SH's solicitor regarding her personal injuries claim and confirms that SH had made a good physical recovery from the motor vehicle accident injuries but that her shortterm memory remained very poor and that neuropsychological assessment had reported severe residual cognitive deficiencies which had shown almost no signs of improvement over time, indicating SH's recovery was likely to have fully plateaued with no expectation of any significant future improvement.
A recent medical report from Dr L, neurologist, dated 7 November 2018, refers to SH as having an intellectual impairment and as 'not very communicative … able to answer very simple question slowly and needed prompting and repetition'.
The professional reports before the Tribunal for the review from the dietician, occupational therapist and psychologist all confirm that SH is dependent on others for all oral intake.
The psychologist report dated 4 April 2019 notes that SH is vulnerable due to difficulties she experiences as a result of her acquired brain injury and her level of communication may impact on her being assertive with others.
The psychologist says that SH is unable to engage in psychological intervention as she is 'unable to understand more complex concepts including articulating her feelings, goals and difficulties'.
The dietician in a report dated 16 April 2019 says that SH is unable to independently follow nutrition recommendations 'resulting in hospital admission for malnutrition and then requiring extensive follow up for rapid weight gain resulting in SH becoming overweight'.
All parties agree that SH is a person for whom a guardian may be appointed.
The Tribunal, based on all the evidence finds that the presumption that SH is capable of making reasonable judgments about her person is rebutted and SH remains a person for whom all three subparagraphs in s 43 of the GA Act apply and is therefore a person for whom a guardian may be appointed.

Does SH need a guardian

The guardian reports that when first appointed in March 2018 the guardian visited SH and JH at home and was concerned about SH's presentation. SH was, according to the guardian, thin and malnourished and could not walk by herself. She weighed 45 kilograms. The guardian sought the admission of SH to hospital. During that hospital admission anticonvulsant medication was recommenced and SH put on weight.
The hospital care plan prepared on SH's discharge provides:
During [SH's] admission to [suppressed] Hospital concerns have been raised about the maintenance of [SH's] health and wellbeing in the community. Primary concerns have been raised in regards to [SH's] malnutrition and this being her second presentation to hospital with this issue[.]
The care plan includes a commitment from JH that she will follow medical and allied health advice to best meet SH's care needs. The care plan includes a medication chart and dietary guidelines and meal plans and provision for social support and twice daily services to assist with meals and medications.
The guardian submits that because of the history of decisionmaking for SH by JH, there remains a need for the appointment of an independent guardian for SH and that an order appointing the Public Advocate as limited guardian with the authorities for accommodation treatment services and contact should be made for five years.
On review JH submits that there is now no need for the guardianship order for SH as the issues raised in the original application have been resolved.
JH says that those issues were as a result of the refusal by the Public Trustee of her request for paid domestic assistance to assist her as the carer of SH but that the guardian has been able to arrange these services for SH.
Later in the proceeding JH proposed herself for appointment as guardian.
JH's affidavit addresses three matters raised in the original proceeding: that she intended to take SH overseas for a hysterectomy; that SH was reported be malnourished when she was admitted to hospital; and the allegation that SH failed to attend medical appointments.
In her further submission dated 4 September 2019, JH asserts that the case manager (the original applicant) may have confused SH with another client at the hospital in making the application for the appointment of a guardian for SH. JH confirms that it was her plan to apply for guardianship so that SH could have an alternative therapy, understood to be an intravenous vitamin infusion.
When determining whether there is a need for an order the Tribunal must consider whether there are less restrictive alternatives to meet SH's needs.
A number of issues have been raised regarding the needs of SH both in the original hearing and on review:

Management of SH's epilepsy

At the original hearing JH said that Dr K, a consultant neurologist, had tried all available anticonvulsants for the management of SH's epilepsy over a period of 10 years but none had worked. As a result SH had not seen Dr K since 2015 (ts 6, 2 March 2018).
JH explained that prior to SH 'getting sick' (confirmed by JH as SH having seizures (ts 10, 2 March 2018) when she was about 18 years old, SH had had a parttime job, was playing netball and was going out to activities. (The reported timing of the onset of SH's uncontrolled seizures at 18 years old is inconsistent with JH's later statement that SH had uncontrolled seizures from when she was 13 years (ts 52, 2 March 2018). This date of onset is also inconsistent with the report of Dr F in 2000 who reported that SH's seizures were then well-controlled when she was 17 years old.
A letter from Dr K dated 29 January 2009 to SH's general practitioner states that he last saw SH in 2002 and that she had longstanding post traumatic epilepsy and long-term uncontrolled seizures. Dr K says:
… She has been off all anticonvulsants since 2002. At that time her mother wished to go the alternative medical route and has pursued this for the last six years but her seizures have not been controlled. She now wishes to avail herself and [SH] of any new anticonvulsants. I had advised [JH] that it was inadvisable for her to come off anticonvulsants at the time but fortunately nothing untoward has happened apart from continuation of [SH's] seizures[.]
The general practitioner's records dated 19 October 2010 note:
Epilepsy
has been [off] medication for the last 3 - 4 years, but was getting Grandmal epilepsy [once] in every fortnight
came in with the mother
? Compliance
mum says child had [side effects] and could not tolerate the meds
was a [patient] of [Dr K]
discussed with the mother about the risks of not [being] on medication and control of fits
she prefers to see different neurologist for opinion
referred to Dr [H].
Other correspondence from Dr K dated 7 January 2014 refers to a period of over a month of SH being seizure free despite two menstrual cycles in that time and that SH was tolerating anticonvulsant medication twice a day without any problems.

In a hospital discharge summary dated 1 December 2015 there is reference to refractory seizures and 13 years of uncontrolled seizures. The history is taken from JH (as SH is reported to be 'noncommunicative'). It is recorded that '[d]ecision made this year to cease all antiepileptics (by specialis[t] in [Hospital]) as her seizure disorder is refractory to same'. The written advice given on discharge was to followup with Dr K.
The record of the cessation of anti-epileptics for SH on advice from a specialist is repeated in the hospital admission record in July 2017.
This information reportedly provided by JH is inconsistent with the earlier advice given by Dr K, advising against ceasing medications. It also appears to be against his advice in his letter dated 22 January 2015 to the general practitioner where he reports he has reduced one of the combination of medications prescribed for SH, at the request of JS. Dr K comments 'I am not sure further reduction is necessary but [JH] has long experience with caring for her and I am willing to follow her request'. Dr K then goes on to prescribe a regime of medication and says he will review SH in three months.
The history given to the hospital by JH is also inconsistent with JH's evidence in the original hearing that SH had not seen Dr K (or any other neurologist) since 2015.
The cessation of SH's antiepileptic medications was also against the recommendation of the general practitioners. For example, the record dated 13 May 2013 refers to advice given to JH about the prognosis (for SH) of untreated epilepsy and the risks of not taking medication. The note refers to JH's preference for alternative medications:
epilepsy
came in with mother
still not taking any medications for epilepsy
mum does not want to see neurologist
she says that she manages her epilepsy and requests valium
says has tried alternative medications – says her [fits] are better controlled with that therapy
discussed again the prognosis of untreated
The guardian asserts that it is difficult to get a true picture of SH's health as the historical medical records rely on information provided by JH and which the guardian asserts, is inconsistent.
In respect of JH's assertions that seizure control has been impossible to achieve in the past when SH has been on medication, the guardian submits that the recent medical reports indicate that the same prescribed medications are working and SH's epilepsy is now under control and the medication is not causing any side effects.
This is confirmed in correspondence from Dr L, a consultant neurologist:
In his report dated 7 November 2018, Dr L, records the history of treatment of SH's epilepsy noting:
…. recommenced on Valporate in 2017 when [SH] was admitted to [Hospital] … At some point again it was stopped by the mum and reinstituted during an admission in March of this year when she was admitted for weight loss and malnutrition, referred in by the GP and Public Advocate[.]
Dr L notes that 'mum strongly believes that [vitamin B] has made this change [of reduction in seizure activity] rather than … the combination of antiseizure drugs [SH] is on'.
In a further letter dated 13 February 2019 Dr L notes that SH's seizures have remained well-controlled over a period of months with only three events over this time witnessed by her mother.
At the review hearing JH agreed that SH has been seizure free for over nine months.
The guardian reports that to ensure the prescribed medication schedule is followed the guardian has support workers attend SH's home in the morning and in the afternoon to ensure SH is eating the appropriate amount of food and taking her medications. It is understood that the cost of this service is paid by the Public Trustee from SH's trust funds.
Both JH and PH oppose this service and say it is unnecessary and intrusive. PH said he found the role of the carers to supervise SH's compliance with the antiepileptic medication and food intake intrusive and judgmental. JH complained about the times the carers attend.
In her further written submission of 4 September 2019 JH reiterates her explanations for SH's nonadherence to prescribed medication in the past saying:
… I explained to [the guardian] that [SH] had been on medication, but had not been able to get back to the doctors to get a repeat prescription because she was [too] sick to travel in the car, so her medication ran out and by the time we did get back to the doctors, [SH] had a neurologist appointment in two weeks so the doctor refused to give SH a repeat prescription and told me to let the neurologist continue SH's treatment. This never would [have] happened if the public trustee had sent out support workers when I asked for help. And the support workers would [have] witnessed just how sick SH was and it would be on the record that what I have said is the truth.
JH asserts that SH now tolerates medications previously prescribed (but previously rejected because of side effects) because SH is now drinking herbal tea for the nausea the medications caused.
JH confirms in the review hearing her belief reported in Dr L's letter that the recent 95% seizure control for SH was achieved prior to the prescribed antiepileptic medications when SH was given a vitamin combination (ts 13, 21 August 2019).
In her further written submission JH rejects the suggestion made by the guardian in the review hearing that the seizures experienced by SH have probably caused further brain damage and asserts that SH 'is the same as she was fifteen to twenty years ago'.
Since the appointment of the Public Advocate as plenary guardian SH has been engaged with health services, has been reviewed by a neurologist, and her seizures are now controlled reportedly because of her compliance with prescribed medication which is supervised twice daily in her home by paid carers.
During the period of unsupervised care by her mother, on JH's evidence, SH had uncontrolled seizures and was frequently ill and became so underweight she ceased menstruating between 2015 and mid2018. JH's evidence is that SH was not taking prescribed medications for a lengthy period.
The Tribunal does not accept the varied explanations given by JH for the failure to provide prescribed medications to SH since they do not accord with the written medical records and are inconsistent and unpersuasive.
Although JH says she follows doctor's advice this is not demonstrated in the record set out of the failure to followup specialist appointments, to comply with recommended and prescribed medications from specialists, hospital doctors and general practitioners or with the discharge recommendations for followup care for SH.
The Tribunal finds that JH has given misleading information to the hospital staff regarding SH's conditions including that antiepileptics had been ceased on specialist advice. It is unclear what caused JH to behave this way with the obvious risks to SH and the actual harm caused by nonadherence to medications.
Since the appointment of the Public Advocate the guardian reports that SH is now linked with other allied health professionals to monitor and contribute to appropriate care for her. Again, on JH's evidence this had not occurred for SH for some years as recommendations for followup care following discharge of SH from hospital were not followed by JH.
The ineffectiveness of informal means to meet SH's needs, is, in the view of the Tribunal, demonstrated in the inability to achieve control of SH's seizures in adulthood until the appointment of the guardian and the direct supervision of medication compliance. The recent nine months of control of SH's seizures is apparently the longest period she has been without seizures.
If a guardian was not appointed for SH then JH could continue to make treatment decisions for SH as her nearest relative pursuant s 110ZD of the GA Act. In these circumstances there could be no confidence that medication compliance would continue. JH's explanation that vitamins have played the major part in SH's recent seizure control underscores JH's apparent lack of appreciation of the role anticonvulsants play in SH's seizure control.
The Tribunal finds that JH making health care decisions as the nearest relative has not been effective to ensure that SH has had appropriate and necessary medical treatment and care. Even on JH's own evidence SH has been very sick because of her previously uncontrolled seizures and has had a reduced quality of life prior to the appointment of the guardian.

Proposal for sterilisation

In the original hearing in March 2018, JH said:
… [SH] is in need of somebody to help her make decisions about her health and her future. The main reason I'm applying I have applied for guardianship is there are two reasons but the main reason is after Christmas, I'm putting [SH] into care and I've had in the past, I've had too many doctors make the comment that [SH] is allowed to [SH] should be have the right to have a baby and this frightens me and I just want to make sure that this doesn't happen in the future. I've had too many people say to me that with stem cell research, someone in [SH's] situation might be able to have a baby in the future.
(ts 3, 2 March 2018)
Confirming her view that a hysterectomy should be performed on SH, JH reiterated her view later in the same hearing:
Now, this is the reason. For her safety, I want her seizures I want her periods to stop. I want to eliminate them. And what happens is that when a person has uncontrolled seizures, the doctors cannot use birth any type of birth controls. The birth control makes the seizures worse. So the only thing that I could personally think of was for [SH] to have a hysterectomy to totally eliminate these periods.
(ts 37, 2 March 2018)
In JH's affidavit prepared by her then solicitor and filed for the review of the guardianship order, JH says she raised the possibility of the hysterectomy as a solution for SH's seizures linked to her menstrual cycle but now being made aware of the provisions in the GA Act, does not intend to seek sterilisation of SH.
JH says that SH started menstruating when she was aged 10 but that her menstrual problems did not start severely until SH was 18 years old (ts 17, 21 August 2019).
According to JH, painful periods severely disrupt SH's life. Describing SH's menstrual pain JH says:
… sometimes, [SH] can be three days on the lounge. And so we cancel we cancel art, we cancel bowling[.]
(ts 17, 21 August 2019)
JH's evidence about the refusal of the general practitioners to provide referral for specialist assessment of SH is inconsistent with the medical records provided and this was put to JH in the original hearing.
For example, in the medical notes recorded on 21 November 2016:
Referral requested to the gynaecologist. Mum wants to get the opinion for management of menstrual periods. Mum stopped giving the medication. Says they are unable to tolerate. Advised to contact the neurologist to make an appointment. Risks explained.
(ts 43, 2 March 2018)
In those notes a referral to Dr K and Dr AT are recorded. JH said in the hearing that she did not see Dr K and denied there had been a referral to a gynaecologist. An earlier note in the medical records indicates a referral from the doctor for contraceptive advice for SH on 24 October 2008.
In the review hearing JH recalled that a doctor had given her a referral to a gynaecologist in 2010. JH said
… But as I left her office she said to me 'The doctor will not give [SH] a hysterectomy'. And at that time I was I was expecting to have some money come my way so I had decided to just wait till the money arrived and take [SH] overseas. That was in 2010.
(ts 24 and 25, 21 August 2019)
The guardian reports that JH has attempted to arrange a hysterectomy for SH from when she was about 26 years of age because of JH's reported belief that SH's seizures were associated with her menstrual cycle.
JH conceded in the first hearing that no doctor had established a link between SH's menstrual cycle and her seizures.
JH said in the review hearing that a referral to a gynaecologist had been obtained and that SH had an appointment in November (2019) to assess whether SH can take the contraceptive pill to reduce menstrual symptoms.
JH confirms that this is the first gynaecologist that SH will have seen despite a history reported by JH of SH experiencing a 20 year history of painful periods (ts 19, 21 August 2019). The guardian advises she was unaware of the referral.
In the review hearing when asked for his views about SH's circumstances her brother PH was critical of the guardian saying that he had overheard the guardian and the case manager (who he identified each by name), saying to JH that SH had the right to have a baby. He said
They just said about with the pregnancies they said, 'Oh, [SH] has the right to have a child when she gets older[.]
(ts 70, 21 August 2019)
Later PH expanded on these comments:
Just saying, well, [SH] might want to get married, have a kid when she gets older and there's stem cell research that can help, kind of thing. And I just, kind of, afterwards, just went, you know, do they really understand [SH's] situation that they can make an assumption like that[? ]
(ts 71 and 72, 21 August 2019)
PH said he had overheard the conversation at their home two years prior to the review hearing. PH maintains he could not be mistaken about the persons who had made these statements nor the time of the conversation.
The case manager and the guardian dispute this evidence, with the guardian saying she had never met PH prior to the review hearing and the case manager saying he had never been to SH's house.
It should be noted, in relation to PH's assertion and his confidence in the time of these reported comments that the order appointing the Public Advocate as guardian was only made on 2 March 2018. This was 18 months prior to the hearing.
The Tribunal accepts the applicant's and the guardian's evidence that they did not make these statements. This allegation about persons saying that SH has a right to have a baby is a repetition of statements made by JH in the original hearing using the same language referring to stem cell research (ts 3, 2 March 2018).
At that hearing JH had said that 'at least half a dozen doctors and some people in government departments' had said this (ts 4, 2 March 2018). In the hearing she insisted that the Public Advocate's investigator had said the same. The investigator denied he had made such a statement and the Tribunal preferred his evidence.
The Tribunal rejects PH's evidence regarding this issue and finds that he has simply adopted the views of his mother JH or has been coached. JH tried to intervene on more than one occasion when PH was giving his evidence.
In the original hearing JH had referred to persons saying SH should have the right to have a baby to support her attempts to arrange a hysterectomy for SH.
In JH's affidavit, prepared by her former solicitor for the review proceeding, it is said that the proposed hysterectomy for SH has been abandoned by JH because of the provisions of the GA Act. However, the adoption of JH's comments by PH in the review proceeding suggests to the Tribunal that this remains an issue.
Section 57 of the GA Act creates a penalty for the carrying out of a procedure for sterilisation on a person who is the subject of a guardianship order without the consent of the Tribunal. This may provide some protection for persons such as SH who might otherwise be subject to this procedure which may not be medically justified.
The provisions in the GA Act for limitation of sterilisation of persons under guardianship supports the need for a formal guardianship order to be made for SH.
This protection exists where these provisions are recognised and followed. JH previously proposed SH be taken overseas for the procedure. For that reason the Tribunal concludes that the guardian should have authority to determine any travel of SH.

Nutrition

JH says that SH's weight has fluctuated over the years: at one time SH had weighed 80 kilograms and later JH acknowledged that SH had weighed 38 kilograms (ts 55, 21 August 2019).
In her affidavit JH asserts that when recovering from convulsions SH can only eat light food and small portions. In her evidence in the hearings JH says SH only drank soup and water in the days after recovering from a seizure.
In respect of allegations that SH was malnourished: JH accepts that SH may have been underweight but disputes that she was malnourished. She said:
I just need it to be on record that it was not neglect on my part. I was pouring vitamins into her when she was not – only eating soup, because I knew that they would work and get her through until she was back on solid food.
(ts 50, 21 August 2019)
Notably in the hospital records of 12 July 2017 one of the comorbidities is 'Iron excess' with the note:
Oral iron supplementation ceased as over supplemented patient not receiving iron in hospital, only at home but advised mother to cease (GP to repeat iron studies in 2-3 months).'
In the general practitioner's records there are a series of recall letters but JH acknowledged in the original hearing that SH had not attended because she was too sick.
In the original hearing JH proposed her appointment as guardian to pursue a vitamin infusion for SH which had not been recommended by a doctor but which JH said she had identified from the yellow pages. In her further written submission for the review she again refers to this proposal.
JH asserts that she has never deprived SH of the foods that she likes or wants and has always followed doctor's advice.
The Tribunal accepts the professional evidence that SH is reliant on others for all her oral intake. SH has suffered extreme weight loss such that her menstruation ceased between 2015 and 2018 and she has been hospitalised for malnutrition on two occasions. JH’s explanation for SH’s weight loss is that SH is too unwell to eat after seizures but this not supported by any medical evidence and SH is reported to eat normally while in hospital. The Tribunal is satisfied that it is more likely than not that SH’s intake of food was restricted at home either by her own refusal or by JH. It is notable that this restriction occurred even after SH’s discharge from hospital in 2017 after an admission for malnutrition.
The guardian asserts that JH lacks insight into SH's nutrition needs as demonstrated by SH's admission for malnutrition and then her gaining excess weight.
As noted since the appointment of the Public Advocate the guardian has implemented a plan for carers to supervise SH's medications and diet. The Tribunal accepts the need for this supervision to continue and the need for a guardian to consent to this service on behalf of SH.

Other medical care

In respect of the failure to attend appointments JH asserts that it has never been her intention to avoid medical appointments for SH but agrees that appointments were missed when SH was recovering from convulsions and was weak and unsteady on her feet and unable to leave the house or otherwise unwell and unable to travel in the car.
As noted above JH's evidence about the refusal of the general practitioners to provide referrals for specialist assessment of SH is inconsistent with the medical records provided.
In relation to SH's need for psychiatric care JH says that she recently found out that SH's father had told SH when she was 10 years old that the car accident which caused her injuries was SH's fault and this is why SH blames herself when something goes wrong. JH wants SH to see a psychiatrist attaching a referral made by the general practitioner dated 2 September 2019. According to JH, SH's father has played no role in SH's life for many years even though he lives in the metropolitan area. He was given notice of the review hearing but did not attend.
The view of JH regarding SH's understanding of her own difficulties is inconsistent with the opinion of the psychologist. The latter stated that SH is 'unable to understand more complex concepts including articulating her feelings, goals and difficulties'.

The guardian refers to inconsistent information about SH given by JH to doctors and the impact on SH. The guardian says that JH had previously reported seeking a referral to a psychiatrist as JH had reported that SH had body image issues. The general practitioner's notes confirm JH raising the possibility of anorexia but JH denies this. JH confirms that she had sought the referral but says it was to enable her to respond appropriately when SH made comments about her weight. (ts 61, 21 August 2019).
The guardian reports that the general practitioner agreed that it was unlikely that SH had any appreciation of the concept of body image. It was at this time that a referral was arranged to the psychologist to assess whether SH would benefit from counselling and the assessment was that SH could not benefit from such therapy.

Community access

In the assessment conducted of SH's functioning in March 2019, the Occupational Therapist (OT) also refers to a number of discrepancies between statements made by JH and those of SH when spoken to privately. The discrepancies reported are in relation to SH's involvement in meal preparation and other domestic and outside activities.
The OT reports that JH:
… continually reiterated and insisted on SH's involvement in 'normal' activities [and] she frequently revised the information provided. It was also noted that the information provided by [SH] was incongruous with the information from her mother.
For example, despite JH saying that SH's activities included bowling SH had said that it was years since she had been bowling.
The OT concludes that SH's actual involvement in activities is limited. JH is reported not to be receptive to support services to assist SH to access the community.
The OT makes recommendations for bathroom modifications and support services for skill development of SH as well as increased community access and counselling support for JH to support her with the changes.
The psychologist reports that from observation it is likely that SH spends most of her time watching television and seldom engages with services. When services were suggested to JH, she is reported to have said that she would support SH.
It is noted by the psychologist that SH requires assistance with all aspects of daily tasks and household duties and she concludes the inconsistent information provided by JH is a concern.
The opinion is given that SH is limited in her level of community engagement and capacity building opportunities due to JH's reported concern that SH will become ill and have seizures. SH appears to have developed this fear. SH is reported to have a sense of fear when leaving the home and made references to being ill when discussing community access.
The psychologist notes that it is unclear if the reported link between seizures and activities has been substantiated by a neurologist. The psychologist states that this may impact on SH's psychological wellbeing due to her limited activity and opportunities to leave her home.
The guardian says that once the health issues of SH were addressed she considered that it was important that SH started having community access with support workers. This was started slowly with a walk around the block because SH was regaining her strength and was fearful about doing new things. The guardian says that SH has slowly been joining art classes and doing activities with support staff. The guardian reports that JH would often try to cancel the programs that were in place saying 'SH was sick' or 'SH didn't want to go' or 'SH had a headache'.
The guardian reports that JH had initially asked for respite so she, JH, could attend a course but later did not support the continuation of regular respite for SH and now SH does not attend.
The guardian reports that SH had been initially reluctant to attend respite but once at respite she had she enjoyed the activities in particular when she was taken to pet shops to see and be with animals. The guardian provided a number of photographs of SH taken while she was on respite showing her smiling.
JH says that SH does not enjoy overnight respite and that she has repeatedly raised SH's concerns with the guardian but has been ignored. JH asserts that respite care outside the home has adverse effects on SH.
JH reports that for SH to go to respite was stressful and SH got to the point where she was wetting the bed, waking up with headaches and having to take headache tablets and having nightmares. (ts 23, 21 August 2019).
The guardian reports that because of the history of JH opposing services and activities for SH the guardian had initially persevered with the respite against JH's opposition. However this was discontinued in July 2019 because it had become a negative experience for SH.
JH rejects the guardian's submission that SH has limited access to the community. She maintains her position that too much activity for SH brings on her seizures. In her written submission she says:
Just before [the guardian] was appointed SH was starting to feel a bit better so I arranged for her to join a social group from the Disability Service Government website, so she could socialise with more people and find a hobby [the guardian] cancelled this and told me SH was not allowed to go to any groups on this website , which was especially set up for people with disabilities.
The Tribunal notes that at the hearing of the original application JH's evidence was that SH was too unwell to leave the house to attend the doctor for medication. Just days after the appointment of the Public Advocate as plenary guardian, the delegated guardian arranged the represented person's admission to hospital suffering malnutrition and electrolyte imbalance. The Tribunal considers that this assertion by JH to be a further example of inconsistent information given by her about SH's circumstances.
Although registered with Disability Services, SH is not eligible for services because of her compensation funds. According to the case manger, the Public Trustee's trust manager was keen to have some guidance in the type of services appropriate for SH. However, because of a lack of response from JH there was no followup of an individual plan developed for SH in 2016 and SH was later reported to have been 'exited' from Disability Services in 2017.
JH said in the original hearing that she had said to two different Disability Services officers over the past 10 years, that she needed to get SH's epilepsy under control before she could participate in activities. JH said:
I have never stopped her. It's just that I have to make sure she does not have seizures. That's a priority, and things like too much activity causes her to have seizures. She loves playing basketball, but I had to take her basketball hoop away from her. It's just until we can get these seizures sorted out[.]
(ts 52, 2 March 2018)
As noted earlier, JH now asserts that activities arranged by the case manager such as bowling and art classes for SH must at times be cancelled because of SH's menstrual problems (ts 17, 21 August 2019).
SH's history of uncontrolled seizures reported by JH is the stated reason that SH was said to require a hysterectomy. It is also used to explain SH's weight loss and inability to eat, her failure to attend medical appointments, to participate in activities and the general deterioration in her functioning. The menstrual problems reported to have been experienced by SH for 20 years which have never, according to JH's evidence, been investigated by a gynaecologist, are now the reason given by JH for the limitation on SH's activities which she is reported to enjoy.
In their evidence in the review hearing JH and PH confirm that when she was about 18 years old, SH had worked parttime and had been in a netball team.
The guardian submits that there has been a significant regression in SH's functioning since that time and this is confirmed in the occupational therapist's report of the recent assessment of SH's functioning, where it is reported that SH has a slow unsteady gait and is unable to remain standing for long periods.
Although there is no direct evidence to support the assertion of the guardian that SH has probably suffered further brain damage as a result of uncontrolled seizures over years, despite JH's assertions that SH is the same as 20 years ago, the contrast between SH's reported functioning in 2000 and the recent assessment by the OT and psychologist is stark.
The guardian submits that it is not likely that SH will regain her earlier level of functioning but that she has potential to progress. This is supported by both the occupational therapist and the psychologist who indicate that SH has potential for development of greater personal independence and engagement with the community.
The Tribunal finds that to support SH's development and access to the community she is in need of a guardian.

Accommodation

In the original hearing JH referred to her plans to move SH into permanent care. She said:
… this year, my plan for this year is to look into to look into this and find somewhere for her and hopefully get her seizures under control. Those are my two main missions for this year.
(ts 57, 2 March 2018)
When asked about the possible location of that care SH said:
… it's okay with me where she goes, as long as she is it's a quiet place where she is not too not too much activity, not too much not overloaded with people and activity.
(ts 59, 2 March 2018)
When asked if she had discussed the planned move of SH to permanent care with the Public Trustee, JH responded 'No, because they're a public trustee not a care facility' (ts 58, 2 March 2018).
In relation to SH remaining at home with additional services, JH said she did not know this was available (ts 59, 3 March 2018).
When asked the main reason JH thought SH needed to go into care, JH responded:
…
J.H:Well, I'm I'm sort of heading towards retirement age, and I thought I just automatically thought that she probably should go to care sometime in the next year or two, because I'm getting to heading towards retirement age.
MEMBER:How old are you, Ms H?
JH:57.
MEMBER:Okay. And so I mean, your view is that you you won't be able to continue that supervision and care for any length of time, or?
JH:Well, I just thought that once they got to a certain age, it was probably a good idea to start to ease them into permanent care[.]
(ts 60, 2 March 2018)
At the review hearing these comments were put to JH and she was asked whether the overnight respite which had been arranged for SH may be a way to ease her into permanent care as proposed. JH responded:
Not now. I feel that [SH] can stay at home. I've discovered information since I made that comment that I feel she can she has her own home she can have respite at home. She can eventually have support workers look after her at home.
(ts 34, 21 August 2019)
JH confirmed that it had been explained at the hearing in 2018 that the property in which she, her adult son and SH had been living since 2001, is owned by the Public Trustee as trustee for SH and that the Trustee potentially, might do something else with the property if SH moved.
In response to this the following exchange took place:
…
JH:At the time I was extremely stressed because I did not realise what the hearing was about and I had – at the time, I thought I was applying for guardianship and I had been told that the opposite would probably happen and that the reason I did organise for [SH's] house to be bought for her was because I had planned for her to spend the rest of her life in that house. I did not know that she was allowed to stay in the house. I had been given the impression that, in the future, she will be forced to leave but now I've found out since she can stay in her house. So that is absolutely what I want and that's absolutely what [SH] wants.
MEMBER:How did you find that out?
JH:I was talking to the Public Trustee and also the solicitor told me that. So – but that was my plan from day one but then in the past I have asked the Public Trustee questions and they have not told me the truth.
MEMBER:What do you say they haven't told you the truth about?
JH:Different times I've asked them questions about different things. I was told by [SH's] first file manager that I had to pay for all maintenance on [SH's] house and they did not tell me that [SH] was allowed to stay in her home. I asked them – I said – when I talked to them about [SH] going into care, I – the verbal conversation we had over the phone, I said, 'Can [SH] stay in her home?' and they said 'No'. The person I spoke to said, 'No. She eventually has to go into care'. I found out since – my solicitor told me that she can stay in her home. So the Public Trustee don't always tell the facts[.]
(ts 35, 21 August 2019)
The intention of JH about the proposed move of SH to residential care within the next year and her reasons for the move are made clear enough in the 2018 hearing.
JH's explanation for her change of mind since that time are not accepted. Her statement that the Public Trustee's trust manager told her that SH had to go into care is rejected. This evidence is inconsistent with JH's earlier statements that she had not consulted the Public Trustee about this issue. It is also inconsistent with the statements made by the case manager regarding the engagement of his service by the Public Trustee and that the trust manager was seeking input about appropriate community based services for SH from Disability Services.
The Public Advocate's investigator reported at the original hearing that the Public Trustee's trust manager had denied JH's assertions made to a hospital social worker that the Public Trustee had refused to fund services for SH.
The Tribunal finds that the resistance to community based services for SH has been from JH and this continues to the present.
The Tribunal does not accept JH's evidence regarding her change of mind about accommodation for SH, but considers that in JH giving such an explanation indicates that there is not a reasonable working relationship between JH and the Public Trustee. JH has previously said the Public Trustee failed to fund domestic services to support her and had this occurred the application for the appointment of a guardian would not have been made.
In respect of decisions about where SH lives, the Tribunal finds she is in need of a guardian.

Wishes

When asked her views about guardianship SH said she did not understand. SH said she wants to remain living at home and in response to questions said she enjoys watching football on television and enjoys bowling.
It can be inferred from the psychologist's report and SH's own comments that while she may be able to express her wishes to some extent she does not appreciate the complexities of her situation and is not able to express a wish about guardianship.

No less restrictive alternatives

For the reasons given the Tribunal is satisfied that there is no less restrictive alternative to meet the needs of SH than the appointment of a guardian for her.

Who should be appointed guardian of SH

In the original hearing JH proposed that she or that her son, PH (the brother of SH) be appointed the guardian of SH.
On review SH initially argued that there was no need for a guardian but now proposes herself for appointment.
Considering the criteria set out in s 44 of the GA Act, the Tribunal does not find JH (or PH) suitable for appointment as guardian.
Having regard to the factors set out in s 51(2) of the GA Act which enumerate ways in which a guardian may act in the best interests of a represented person, the Tribunal is unable to find that JH has acted in SH's best interests despite what is acknowledged as her role as a longterm carer of SH.
The evidence in the judgment of the Tribunal shows that JH has restricted SH's participation in the life of the community and has resisted efforts of others to increase that participation (s 51(2)(b) of the GA Act).
According to the assessments by the psychologist and OT, which the Tribunal accepts, JH does not encourage or support SH's development of greater independence and resists services which might encourage SH's development (s 51(2)(c) of the GA Act).
Most significantly in the view of the Tribunal the history disclosed in the original and review proceedings shows a failure on the part of JH to ensure SH has recommended medical and other health care and the Tribunal finds that this has amounted to neglect of SH's health care needs(s 51(2)(d) of the GA Act).
Further, in the past JH has sought a hysterectomy for SH which has not been justified on medical or other grounds. JH proposes an intravenous vitamin infusion for SH which has not been recommended by health professionals. Neither of the procedures proposed for SH occurred but the oversight of an independent guardian is required to ensure that SH is not subject to procedures that are not medically justified and may be harmful to her ( s 51(2)(d) of the GA Act).
Pursuant to s 44(1)(b) of the GA Act the Tribunal finds SH and PH have a conflict of interest in respect of decisions about accommodation and services for SH . They live in the house owned by the trust and have done so since 2001. JH receives a carer payment for care provided to SH in her home.
Both JH and PH oppose the services engaged for SH. JH and PH's interests in the protection of their personal and family privacy conflicts with the interests of SH who is assessed by the health professionals and the guardian as requiring these services. The assertion of JH that she will provide the necessary supports to SH is not persuasive when considered against the background of the history JH herself has provided.
In respect of s 44(2)(d) of the GA Act the Tribunal also finds that JH has not demonstrated over an extended period the ability to perform the functions of the guardian in respect maintaining health care for SH. At the review hearing JH maintained her position regarding SH's health care and the reasons for noncompliance with prescribed treatment and displayed no insight into the consequences for SH of that noncompliance or of her role in it.
Although the Public Trustee is not an administrator but a trustee the considerations in s 44(2)(b) of the GA Act are relevant in the appointment of a guardian for SH. The Tribunal finds that JH on her own admission has not been able to communicate effectively with the Public Trustee in the past to meet SH's needs.
For these reasons the Tribunal finds there is no one else who suitable or willing to be appointed guardian of SH and therefore appoints the Public Advocate as guardian of SH.

Plenary or limited order

Although the guardian submits that the order on review should be a limited one with the functions of deciding where and with whom SH is to live , treatment and healthcare services and contact for her, the Tribunal is not satisfied that a limited order is sufficient to meet the needs of SH.
The complexity of the issues facing SH into the future, the failure of less restrictive means to meet her needs over a very long period in the past, and the resistance of JH to interventions for SH and the inconsistent information and sometimes misleading information she has given to health care professionals and others, justifies a plenary order. There must, in the view of the Tribunal, be no ambiguity or uncertainty about who has lawful authority to make decisions for SH.
JH has been able to obtain a referral to a psychiatrist and to a gynaecologist in the period that the Public Advocate has been the plenary guardian of SH. Because of this and the previous proposal of JH that SH be taken overseas for a hysterectomy the Tribunal will make further orders and explicitly include the authorities to determine treatment and healthcare of SH and travel to ensure that third parties including healthcare providers are aware of the nature of the orders made.

Length of the order

SH has a longstanding brain injury and will need substitute decisionmaking for her lifetime.
On review JH does not appear to have any understanding or recognition of the reasons the application or the orders were made in 2018. She continues to maintain her own explanation for SH's noncompliance with medications and her admission to hospital with malnutrition. JH continues her opposition to necessary interventions for SH to ensure her health safety and best interests. In light of all these factors the Tribunal considers that the guardianship order should be made for the maximum period under the GA Act.

Orders

The Tribunal declares that the represented person, SH is:
(a)incapable of looking after her own health and safety;
(b)unable to make reasonable judgments in respect of matters relating to her person;
(c)in need of oversight, care or control in the interests of her own health and safety; and
(d)in need of a guardian.

The Tribunal orders:
The guardianship order dated 2 March 2018 is amended so that it now reads:
1.The Public Advocate of David Malcolm Justice Centre, Level 23, 28 Barrack Street, Perth, Western Australia is appointed plenary guardian of the represented person with all the powers and duties conferred by the Guardianship and Administration Act 1990 (WA).
2.For the avoidance of doubt, the authority of the plenary guardian includes, but is not limited to, the authority:
(i)To make treatment decisions for the represented person, subject to Division 3 of Part 5 of the Guardianship and Administration Act 1990 (WA);
(ii)To decide whether or not the represented person is to travel;
(iii)To decide the terms and conditions upon which the represented person is permitted to travel;
(iv)To take possession of all passports issued to the represented person, and
(v)If necessary to notify the Australian Federal Police about the existence, nature and effect of this order.

3.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.
4.The guardianship order is to be reviewed by 7 October 2024.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS F CHILD, MEMBER
11 OCTOBER 2019