SM
[2016] WASAT 44
•27 APRIL 2016
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: SM [2016] WASAT 44
MEMBER: MR J MANSVELD (SENIOR MEMBER)
HEARD: 8 JANUARY 2016
DELIVERED : 27 APRIL 2016
FILE NO/S: GAA 4685 of 2015
MATTER :SM
Represented Person
Catchwords:
Guardianship Need for a guardian Suitability to be appointed guardian Ongoing conflict between represented person's birth parents Continuing need for appointment of Public Advocate as represented person's guardian with limited functions Represented person's father suitable to be appointed limited guardian to make treatment decisions
Legislation:
Guardianship and Administration Act 1990 (WA), s 4, s 43(1)(b), s 84, s 90
Result:
Limited guardianship order made
Summary of Tribunal's decision:
SM is a young man with severe disabilities. He was involved in a motor vehicle accident when he was 17 years of age and sustained a serious head injury and other physical injuries.
SM has lived with his father and stepmother for many years and they are his primary carers.
SM's father and birth mother are divorced.
SM visits his birth mother on a regular basis, every six weeks for a period of five days.
The Public Advocate has been SM's guardian since 1999. The most recent order was made on 17 December 2010 in which the Public Advocate was appointed SM's limited guardian to make decisions about his accommodation, treatment, contact with others and the services to which he should have access.
In the current review, the Public Advocate proposed that she be reappointed but with reduced authorities. The Public Advocate proposed that only the services function remain in place and that SM's father be appointed his guardian to make treatment decisions.
This proposal was not supported by SM's birth mother and his sister due to the ongoing conflict with SM's father and their mistrust of him.
The Tribunal found that SM remained in need of a guardian given his severe decisionmaking disabilities and the continued conflict between his birth parents.
The Tribunal decided that the Public Advocate should remain as guardian to decide SM's accommodation, contact with others and services.
The Tribunal found that given SM's precarious health, an accommodation decision may be required at any time.
In respect to contact with others, the Tribunal found that there was ongoing dispute between SM's birth parents as to the length and frequency of visits that he should have with his birth mother and, despite having an external case manager in place, this particular dispute was not resolvable without a guardian's involvement.
It was common ground that the Public Advocate should be reappointed to make decisions about the services to which SM should have access.
The Tribunal decided to appoint SM's father as guardian to make treatment decisions for him given that he effectively did so already as SM's primary carer and because the evidence showed that he was undertaking the role in a thorough manner and had been commended to the Public Advocate by SM's general practitioner.
Category: B
Representation:
Counsel:
Represented Person : Nil
Solicitors:
Represented Person : N/A
Case(s) referred to in decision(s):
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
SM is a 34 year old man with severe disabilities. He was involved in a motor vehicle accident when he was 17 years of age and sustained a serious head injury and other physical injuries.
SM has high care needs and is totally dependent on others for his health and welfare.
SM lives with his father, PM, and his stepmother; they are his primary carers and have been so for many years. An external case manager is employed.
SM's birth mother is LM and he has a sister, S.
PM and LM have been divorced since 1992. They do not agree on certain matters to do with SM's care; in particular, the extent of his contact with LM at her home, and his medical treatment.
In 1999, applications were made for guardianship and administration orders pursuant to the Guardianship and Administration Act 1990 (WA) (GA Act).
On 13 December 1999, the former Guardianship and Administration Board appointed the Public Advocate as SM's limited guardian and PM as his plenary administrator.
The Public Advocate was given the authority to make decisions concerning SM's accommodation, medical treatment and with whom he should have contact.
Upon review of the orders, on 20 December 2001, the Public Advocate was reappointed SM's guardian but with plenary powers. The administration order was confirmed.
In January 2005, the Tribunal took over most of the functions of the Guardianship and Administration Board.
In September 2006, by order of the District Court of Western Australia, the personal injuries claim arising from the motor vehicle accident in 1999 was settled for a significant sum. A trustee company was appointed trustee of the settled sum.
Upon review of the orders on 20 December 2006, PM's role as administrator was reduced to managing any allowances paid by the trustee to SM as a consequence of the establishment of the court trust.
Also on 20 December 2006,the Public Advocate was reappointed as SM's guardian but with functions limited to deciding his accommodation, medical treatment, support services and with whom he should have contact.
In May 2010, S sought review of the guardianship order expressing a lack of confidence in the Public Advocate regarding decisions around SM's contact with LM.
An attempt at mediation was unsuccessful and on 17 December 2010, the guardianship order made on 20 December 2006 was confirmed by the Tribunal.
On 14 December 2011, the administration order was confirmed.
On 30 August 2012, the trustee appointed by the District Court in 2006 was appointed limited administrator by the Tribunal with the authority to allocate court trust funds into a superannuation fund.
The matter before the Tribunal is a review of the guardianship order made on 17 December 2010.
The review takes place in the Tribunal's original jurisdiction: s 90(2) of the GA Act.
The hearing took place on 8 January 2016. In attendance were PM, LM, S, the delegated guardian (guardian) and a representative of the court appointed trustee (court trustee).
The decision was reserved.
The relevant legislation
Section 90 of the GA Act sets out the powers of the Tribunal on review of guardianship (or administration) orders.
The Tribunal may, as it considers necessary, in the best interests of SM, confirm the order, amend the order, revoke the order or revoke the order and substitute another order for it: s 90(1)(a) and s 90(1)(b) of the GA Act.
The Tribunal can also revoke the appointment of a guardian, appoint a new or additional guardian or appoint an alternate guardian: s 90(1)(c) of the GA Act.
The primary concern shall be the best interests of SM: s 4(2) of the GA Act.
A guardianship order shall not be made if the needs of SM could, in the opinion of the Tribunal, be met by other means less restrictive of SM's freedom of decision and action: s 4(4) of the GA Act.
A plenary guardian shall not be appointed if the appointment of a limited guardian would be sufficient, in the opinion of the Tribunal, to meet SM's needs: s 4(5) of the GA Act.
In considering any matter relating to SM, the Tribunal shall, as far as possible, seek to ascertain his views and wishes as expressed, in whatever manner, at the time, or as gathered from SM's previous actions: s 4(7) of the GA Act.
SM's capacity
It is common ground that SM is a person for whom a guardianship order can be made.
Because of his severe cognitive impairment as a consequence of the acquired brain injury and his total dependence on others for his daily care, SM is incapable of looking after his own health and safety; is unable to make reasonable judgments in respect of matters relating to his person; and is in need of oversight, care or control in the interests of his own health and safety: s 43(1)(b) of the GA Act.
The need for a guardian
It is common ground that SM is in need of a guardian. What is not resolved is what authorities or functions should be given to the guardian and who the guardian should be.
The guardian
The guardian states as follows:
•SM has lived with PM and his stepmother (primary carers) for many years and the accommodation is safe and reliable. There is no suggestion that the accommodation will need to change in the foreseeable future.
•Despite SM's profound disabilities and limitations, he is socially engaging and will attempt to communicate his thoughts.
•SM visits his mother, LM, every six weeks and stays with her for a period of five days. This arrangement has been in place for several years and is considered part of SM's normal schedule. The visits to LM also provide respite for the primary carers.
•The primary carers rely upon a care plan that was developed some time ago. The care plan is very detailed, and includes records of every intervention, and personal care items that SM needs. The primary carers view strict adherence to the care plan as essential to the safety and stability of SM, and their biggest concern is if the care plan is not observed or in some way departed from.
•SM's mother and sister, LM and S, have a somewhat different view as to the need for a strict adherence to the care plan and, whilst respecting its importance, have a concern that the care plan can be too controlling of SM's life and should allow for a degree of flexibility. This difference in perspective manifests in views concerning SM's treatment and health care and the contact arrangements with LM.
•A new case manager was employed during the term of the guardianship order. The previous case manager had advised the guardian that it was not coping with the conflict between PM and LM around compliance with the care plan during SM's visits to the home of LM. Both PM and LM are happy with the current case management service.
•The guardian plays a peripheral role in the medical and allied health decisions that are made for SM. SM is regularly seen by a team of medical specialists and allied health professionals, and these appointments are scheduled and attended to by the primary carers. The information obtained through those appointments is relayed to the guardian.
•The guardian is aware that LM would prefer to have more information regarding SM's medical reviews and that she has expressed different views as to the type of medical care from which SM would benefit.
•The guardian has spoken with SM's general practitioner who advises that the thorough approach taken by PM regarding SM's medical needs has resulted in SM receiving exceptional care.
The guardian submits that PM should be given the role of consenting to SM's treatment because he has demonstrated a commitment and ability in that area of SM's life. The appointment of PM is supported by the general practitioner.
The case manager is prepared to act as a conduit for medical information to be exchanged between PM and LM.
The guardian is of the view that the primary carers are exceptionally attentive towards SM's care. They have developed an acute understanding of his body language which they are very adept at interpreting to assist in connecting him to those around him.
The case manager plays an active role in the organisation and coordination of SM's visits to LM and to his sister, S, which includes arranging transport and nursing care. The guardian submits that the services function under which a decision about case management can be made should remain with the Public Advocate.
The guardian submits that during the term of the order, no contact decisions have been made because the visiting arrangements with LM and S have remained stable. The guardian submits that the contact authority is no longer required.
The guardian submits that the Public Advocate should be reappointed as guardian with the authority to determine the ongoing services for SM. The appointment of PM as guardian for treatment decisions is supported. SM's accommodation is stable and no decision is likely in the foreseeable future. The contact arrangements are stable.
The guardian submits that if PM is given the authority to make treatment decisions for SM, then if a situation arises where PM considers it medically unwise for SM to visit LM, that decision should be supported by a medical certificate.
The guardian accepts that there are ongoing difficulties between PM and LM and that they operate from different perspectives as to the care of SM which, at times, can result in periods of conflict. The guardian submits, however, that the conflict can be largely managed ‑ in particular under the new case management arrangement.
PM, the father
PM states that SM lives with him and his partner (as the primary carers) in their house. The court trustee has not been required to expend funds from the court trust in the purchase of accommodation for SM.
PM states that the care plan has been in place from the time SM was discharged from the rehabilitation hospital and it is reviewed with the medical practitioners every 12 months.
PM submits that he is the appropriate person to make treatment decisions for SM because he effectively does that already.
PM agrees that the Public Advocate should remain as SM's guardian except for the authority to make treatment decisions, which should be given to him.
PM states that he has never proposed that SM not visit LM and S, but the condition has always been that during the visits, the care plan be adhered to and that, in several instances, this has not happened.
PM states that if he wanted to restrict the visits of SM to LM, he could achieve that now and would not require the treatment decision‑making authority to do so. It is PM's view that it is in SM's best interests that he see LM and S.
PM states that the question of whether SM should spend more time with LM is often raised. It is PM's view that the care plan, which includes visiting arrangements, must be followed because it has worked well for SM over a long period of time. PM submits that it is not in SM's best interests to change his routine by allowing him longer visits with LM.
PM states that SM has his treatments at home, including physiotherapy, and therefore does not require treatment when he is visiting LM.
S, the sister
S submits that if PM were given authority to make treatment decisions for SM, he would likely use that authority to restrict SM's visits to LM because of his 'personal hatred towards mother and my mum's personal hatred towards dad' (T:16; 08.01.16).
S states that it is very difficult for her and LM to respond to SM's medical needs because of the lack of information given to them.
S submits that the Public Advocate should remain as SM's guardian, given the animosity between PM and LM.
LM, the mother
LM submits that the Public Advocate should continue as guardian and be given plenary powers. She states that if PM were given any role in the decision‑making for SM then 'I cannot see it working' (T:17; 08.01.16).
LM states that she would like SM to visit her more often and she is concerned that a reason given for this not occurring is that there are insufficient funds to do so because of the extra costs of paid carers when the visits take place. LM is of the view that the primary carers are paid too much to care for SM.
LM accepts that SM needs a carer and that that person should be PM, but she does not believe that SM is in need of two full‑time paid carers.
LM states that she has in the past requested the services of a physiotherapist and speech therapist when SM visits her but this has not been allowed. She also states that she is aware of a medical practitioner whom she would like SM to see who deals with brain injured people and provides intensive therapy treatment. LM states:
I don't want to see him living in a wheelchair the rest of his life if he doesn't have to …
(T:23; 08.01.16)
… He used to be able to talk, he was eating and he was doing really well. But it's [not like that] anymore, I think he is unhappy where he is.
(T:33; 08.01.16)
The court trustee
The court trustee states that the primary carers are paid for the care they give to SM but not at commercial rates. The care provided by the primary carers includes physiotherapy and 'things like that' (T:37; 08.01.16). The main costs to SM's estate are the wage costs of the primary carers and the cost of case management.
The court trustee states that cost was originally a concern when SM visited LM because he needed to be accompanied by two full‑time carers paid at commercial rates. Currently on these visits there are not now always two carers in attendance.
The court trustee states that there is a review underway as to the impact of expenditure over the last 12 months in determining the longevity of the funds available to SM in the court trust. When the review is completed, further consideration may be able to be given to SM having longer visits with LM, at least as far as the cost implications are concerned.
The decision of the Tribunal
I accept on the evidence that a limited guardianship order is sufficient to meet the needs of SM and that a plenary order is not required: s 4(5) of the GA Act.
I am not persuaded by the submission of the Public Advocate in its entirety.
Whilst the accommodation of SM is stable, his health is sufficiently precarious such that the question of where he lives can potentially arise without warning. In the making of long orders (a maximum period of five years under s 84 of the GA Act), which is clearly appropriate in SM's case, the Tribunal should consider the likelihood of circumstances changing in that timeframe and structure an order accordingly.
In addition, the current contact arrangements whereby SM spends five days every six weeks with LM effectively includes a decision concerning where SM lives temporarily.
For these reasons and in the context of a conflictual relationship between PM and LM, I find that SM continues to be in need of a guardian to decide his accommodation and that the guardian should be the Public Advocate.
I similarly find that the Public Advocate should continue as guardian to make contact decisions for SM, given the clear difference in views between PM and LM as to what level of contact is in SM's best interests. PM does not support visits to LM other than what is already set down in the care plan, whilst LM disputes the need for such rigidity and believes that SM would benefit from longer visits with her. Whilst financial considerations appear to have played a part to date in the guardian's decision about longer visits, this may become less of a consideration once the review of the expenditure has been completed by the court trustee.
There is no dispute that the Public Advocate should remain as guardian to make decisions about service provisions for SM, given the importance of case management, and I am satisfied that this function should remain in the order.
I accept the submission of the guardian that PM largely makes and attends to the treatment decisions for SM. That, it seems to me, is inherent in his role as primary carer and father of SM, and given that SM lives with him. Although LM's view is that PM does not undertake this task in SM's best interests and points to what she sees as deterioration in SM's functioning, I accept the evidence of the guardian that PM takes his role very seriously and that he has been commended by SM's general practitioner in that regard.
I am satisfied that for all practical purposes, PM makes treatment decisions for SM and should be given the formal authority to do so. I agree with the guardian that it is important that LM be given relevant medical information about SM's ongoing treatment and note that the case manager has agreed to undertake that task.
The reappointment of the Public Advocate to make contact decisions for SM deals with any concerns that LM may have, whether justified or not, that PM will be overly strict in the use of his treatment authority in deciding whether or not SM is well enough to visit LM.
SM finds it very difficult to communicate in any meaningful way. It is difficult to know what his views and wishes are in respect to the ongoing need for a guardianship order. I am satisfied that the evidence indicates that SM is content with his current living environment and the care that he is given, and that he is also content to continue to visit LM.
The guardianship order will be set for review in five years: s 84 of the GA Act.
Orders
The Tribunal orders that:
1.The order is revoked and a guardianship order in the following terms is substituted for it:
The Public Advocate of Level 2, International House, 26 St Georges Terrace, Perth, Western Australia be 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;
(c)To determine what contact, if any, the represented person should have with others and the extent of that contact; and
(d)To determine the services to which the represented person should have access.
2.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.
3.[PM] of [address suppressed] is appointed limited guardian of the represented person with the following function:
(a)Subject to Division 3 of Part 5 of the Guardianship and Administration Act 1990 (WA), to make treatment decisions for the represented person.
4.The Tribunal will commence a review of this order by 18 April 2021.
I certify that this and the preceding [71] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR J MANSVELD, SENIOR MEMBER
0
0
1