SM and HJM
[2011] WASAT 49
•4 FEBRUARY 2011
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: HUMAN RIGHTS
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: SM and HJM [2011] WASAT 49
MEMBER: MR J MANSVELD (MEMBER)
HEARD: 19 JANUARY 2011
DELIVERED : 4 FEBRUARY 2011
FILE NO/S: GAA 3441 of 2010
BETWEEN: SM
Applicant
AND
HJM
Represented Person
Catchwords:
Guardianship Need for a guardian Current guardian not acting in the represented person's best interests Guardianship appointment revoked Public Advocate appointed
Legislation:
Guardianship and Administration Act 1990 (WA), s 4, s 43(1)(b), s 44, s 90
Result:
The Public Advocate is appointed guardian
Category: B
Representation:
Counsel:
Applicant: Self-represented
Represented Person : Self-represented
Solicitors:
Applicant: Self-represented
Represented Person : Self-represented
Case(s) referred to in decision(s):
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
HJM was an elderly woman who resided in a nursing home because of her advanced dementia.
A friend of the woman had been appointed her guardian to make decisions about her personal and medical needs.
The nursing home made an application for review of the guardianship order because it argued that the guardian was not making decisions in the woman's best interests. The guardian was said to be antagonistic towards staff at the nursing home, accused the staff of abuse, and was continuing to give the woman water and solid food after a speech pathologist had assessed the woman as requiring pureed food and thickened fluids. It had been determined that the woman, because of her advanced dementia, was at constant risk of aspiration which could result in her contracting pneumonia.
The guardian disputed the assessment of the speech pathologist. He said that the woman had never choked when he had fed her. He also said that the nursing home had never adequately looked after the woman but that he had decided not to move the woman to another facility because it was his view that all nursing homes were the same.
The guardian accepted that he argued with and made demands on staff but he said that had been necessary to ensure care was provided.
The Tribunal accepted the explanation of the nursing home that it had tried to negotiate care matters with the guardian but that he was not open to discussion. The Tribunal also accepted that the views held by the guardian and the decisions he made for the woman had worked against her necessary and significant care needs.
The Tribunal decided to revoke the friend's appointment and appointed the Public Advocate as the woman's guardian.
The Tribunal delivered its reasons orally. The oral reasons, with minor editing, follow (including anonymising the names of the parties as required by the provisions of the Guardianship and Administration Act 1990 (WA)).
Background
HJM is an 89yearold woman who resides at a nursing home. She suffers from advanced dementia.
Orders were first made for HJM under the Guardianship and Administration Act 1990 (WA) (GA Act) in February 2005. HJM is currently under guardianship and administration orders. VZ, a longtime friend and advocate, is her guardian, having first been appointed limited guardian in March 2007 and plenary guardian in March 2008.
VZ is the administrator of HJM's estate, having first been appointed in June 2005 and reappointed in August 2010.
On 25 November 2010, SM, Director of Care at the nursing home (applicant), sought leave to review the order for guardianship. Leave was granted on 29 November 2010 and the applicant subsequently applied for review of the order made on 12 March 2008.
On 19 January 2011, I heard the review application and on that day, decided that the guardianship order should be revoked and replaced by an order appointing the Public Advocate as HJM's plenary guardian.
What follows are the reasons for my decision.
The relevant legislation
Upon a review of a guardianship order, the Tribunal can do the following pursuant to s 90 of the GA Act: confirm the order, revoke the order, amend the order or revoke the order and make another order in its place.
In review proceedings, the Tribunal must make fresh findings about capacity and need. The decision about what order is required (if any) is determined on the information available to the Tribunal at the time the decision is made.
The GA Act requires the Tribunal to proceed through a number of steps in coming to a decision about whether to appoint a guardian. Simply put, the steps are as follows.
A finding must be made on the capacity of HJM. The starting point is that she is presumed to be able to look after her own health and safety, or make reasonable judgments about her person.
The Tribunal must be satisfied there is a need for a guardian. The GA Act states that a guardianship order should not be made if HJM's needs could be met by other means less restrictive of her freedom of decision and action.
If a guardianship order is to be made, the Tribunal must decide what should be the scope of the order. The GA Act states that if HJM's needs can be met by the making of a limited order (an order which sets out the particular functions of a guardian), then a plenary order (one that gives the guardian full authority over HJM) should not be made.
If a guardianship order is made, then the Tribunal must decide who the guardian is to be. Section 44 of the GA Act provides guidance to the Tribunal in answer to that question. The Tribunal must be satisfied that the proposed guardian will act in HJM's best interests and not be in a position where the proposed guardian's interests conflict or may conflict with HJM, and that the person otherwise be suitable to act as guardian. Suitability takes into account:
•the desirability of preserving existing family relationships;
•the compatibility of the proposed guardian with HJM and her administrator; the wishes of HJM; and
•whether the proposed guardian will be able to perform the role that he or she is given.
The Public Advocate is able to be appointed a person's guardian if it is determined by the Tribunal that there is noone else suitable or willing to undertake that role.
When going through all the steps just mentioned, the Tribunal must, as far as possible, seek HJM's views and wishes but ultimately must make a decision in what the Tribunal judges to be in her best interests.
HJM's capacity
Section 43(1)(b) of the GA Act states that subject to the presumption of capacity in s 4 of the Act, the Tribunal must be satisfied that HJM is either incapable of looking after her own health and safety, unable to make reasonable judgments about her person, or is in need of oversight, care and control in the interests of her own health and safety or for the protection of others.
It is common ground that HJM is in the advanced stages of dementia. The applicant in a written report describes this as 'end stage dementia', indicating that HJM is nearing the end of her life. The applicant states that HJM requires full care for all her activities of daily living and has reached the point in her illness that she is unable to recognise visitors. HJM's general practitioner states in his written report that she is now chair or bed bound, can no longer make any decisions and is unable to make any contribution to these proceedings.
There is no dispute that HJM satisfies all the criteria in s 43(1)(b) of the GA Act and is a person for whom a guardian could continue to be appointed. The Tribunal finds this to be the case.
Need for a guardian
The applicant's evidence and submissions
The applicant is seeking to have VZ removed as HJM's guardian. The submission is that VZ is not acting in HJM's best interests.
The applicant's evidence is as follows.
VZ complains and argues constantly with care staff. The staff are frightened and intimidated by him. VZ challenges almost every aspect of HJM's care and places excessive demands on care staff and management; for example, unnecessarily seeking documentation on all manner of care policies.
HJM is in palliative care. She suffers from a terminal illness (the progressive dementia). VZ has little or no insight into the fact that dementia is a life-limiting illness and blames the nursing home for HJM's condition. For example, he has queried HJM's weight loss and argues that it is caused by HJM not being fed appropriately. HJM has lost 4 kilograms in the last 12 months, which is consistent with the progression of her illness. She does not always take food and should not be forced to do so.
VZ has made known his view that the professionals involved in HJM's care do not know what they are doing.
HJM has a condition common to those in the end stage of dementia. She suffers from Dysphagia, which means she has difficulty in swallowing and is at risk of aspiration. Should this occur, she is at further risk of contracting pneumonia which, at her age and in her condition, could prove fatal. In March 2010, a speech pathologist assessed HJM as needing to be given pureed food and thickened fluids (the assessment is before the Tribunal). VZ has admitted to feeding, and has been seen still to feed, HJM with solid food and to give her water. VZ has been advised of the assessment, and the nursing notes (which are also before the Tribunal) show that as late as November 2010, he was told of HJM's dietary needs, which he does not agree with. By his actions, VZ puts HJM at risk of aspiration.
HJM also suffers from a condition called Senile Purpura. This typically affects elderly people whose skin thins and whose blood vessels become more fragile. They develop dark purple patches on their skin. New lesions appear without known trauma and eventually resolve (HJM has also developed a habit of scratching her skin, which makes the problem worse and for which she has been prescribed special creams with varying success). VZ insists that the reason HJM has these patches is because of mishandling of care staff and he will not accept any other explanation. The general practitioner is aware of the condition and has spoken to VZ about it. The applicant says that VZ has taken photos of the patches in a manner which she feels is intrusive and compromises HJM's dignity.
The evidence and submissions of VZ
VZ read out from a written statement setting out his view of the history of how he came to be appointed the administrator and guardian for HJM.
VZ says that he was the one who facilitated HJM's move into the nursing home.
VZ describes what he sees as poor care for HJM and mismanagement by the nursing home over the time that she has been a resident. He gives examples of the poor storage and maintenance of HJM's dentures and the overprescription of medication which, he says, he was instrumental in changing. He states that the nursing home has too often failed to ensure that bedrail protectors have been put in place for HJM.
In respect to the issue of HJM's diet, VZ says that he has fed HJM with solid food for a long time and she has never choked on it. In recent times, he has given HJM small pieces of chocolate which she enjoys and also a sip of water when she has responded to his offer of a drink. VZ says that he has stopped giving HJM any solid food as he is waiting on the outcome of this review hearing. He says he has asked for a meeting with the dietician, which has been refused (the applicant says the request has not been refused; the dietician has been away and, in any case, the proper person to see is the speech pathologist who recommends how HJM is to be fed. The applicant says that HJM is given the standard menu - it is just that her food is pureed and her fluids thickened).
In respect to the skin patches, VZ maintains that these are caused by staff mishandling HJM. He confirms that he has taken photos of the patches and states that he has shown them to a general practitioner of his choosing. The general practitioner (whom VZ declined to name) is reported to have said to VZ that the patches are likely the result of a fall and that further investigation is needed.
VZ says that it is up to the nursing home to formally alert him of matters such as the feeding and skin problems, but that there has not been adequate communication from the nursing home in this regard.
VZ says that he has at one time complained to the independent aged care complaints system but did not get a satisfactory response.
The Public Advocate
The Public Advocate was invited to the review hearing because of the possibility of her appointment as HJM's guardian. Her representative, DD, investigated the application by the nursing home and provided a written report. DD attended the hearing.
DD says that VZ showed him the photographs of HJM's skin patches, which he found disturbing; however, he was advised by the general practitioner that he had told VZ sometime ago that the patches were common in people of HJM's age and with her medical condition, and could occur by simply moving her.
DD says that VZ said to him that HJM was not being properly cared for in the nursing home and that he had used the term 'abuse'. Asked why he had not considered moving HJM if he felt so strongly about her care, VZ is said to have responded that all nursing homes are the same.
DD reports that VZ told him that he has never been advised by the nursing home not to feed HJM. He has continued to feed HJM solid food because he holds the view that there is nothing wrong with doing so.
DD says that the nursing home has raised a concern about the poor quality of HJM's clothing with which, after inspection, DD agrees. DD says that he is aware that HJM has ample funds to pay for new clothing but it appears VZ chooses not to do so (VZ says that he disagrees with the assessment of the quality of HM's clothing).
DD submits that VZ should be removed as HJM's guardian and that the Public Advocate be appointed to decide HJM's accommodation, treatment and health care and, in the light of the poor relationship VZ has with the nursing home, to decide the contact HJM should have with him.
SM, nephew of HJM
SM attended the hearing by telephone from another state. He says that the family have generally supported VZ in his role as guardian for HJM but that after hearing all the evidence at the hearing, he has changed his view and now supports the appointment of the Public Advocate.
The Tribunal's decision
It is clear from the evidence that there has been an almost total breakdown in the relationship between VZ and the nursing home. This situation has developed over time, but it is fair to say that the relationship has never been a good one. The main reason for this, in my view, is the oppositional and antagonistic way in which VZ communicates his concerns to care staff and management, and the overwhelming negativity with which he views the care given to HJM.
This is unfortunate because, as a consequence, even those concerns which otherwise are appropriate to voice are lost in the aggressive and intimidatory way in which VZ communicates them. What might otherwise be described as strong advocacy for HJM (which is how VZ sees it) loses its force because it is almost wholly oppositional and not conducive to open discussion and negotiation.
This is clearly not in HJM's best interests.
I find, on the evidence, that the nursing home has genuinely tried to deal with concerns of VZ but that he, by his manner, has prevented effective resolution of many of them. I find also that some of the concerns have been overstated by VZ in his attempt (for reasons I cannot fathom) to find fault with the care of HJM.
The two significant examples that have arisen from the evidence are the way in which food and fluid must be given to HJM and the unsightly skin patches from which she suffers.
I am disturbed at the attitude of VZ to the assessment of the speech pathologist, which states that HJM must be given pureed food and thickened fluids so that she does not aspirate. I prefer the evidence of the applicant when she says that VZ has been advised of these requirements but chooses not to adhere to them. The nursing notes before me are evidence of VZ being alerted by the nursing home of the safe way in which HJM must be given food and fluid. For some reason (again not clear to me), VZ has decided that he should give HJM solid food from time to time as well as sips of water, he says because that is what she wants and she enjoys it. HJM may very well present in her now impaired way as taking food and drink in this manner, but she is insightless into the risk this presents. Furthermore, it is unnecessary. In the normal course, she can continue to enjoy the taste of food despite it being pureed, because she is still given the standard diet.
The way VZ has approached the issue of HJM's food and fluid intake is clearly not in her best interests. His evidence suggests that, should he be reappointed as HJM's guardian, he would see that as justification for continuing to give her solid food (even if it is only small pieces of chocolate), this being contrary to professional advice.
The matter of HJM's skin problems is clearly one that concerns and upsets VZ. Given his attitude to the nursing home (and, it would appear, to nursing homes in general), it seems that he has quickly found blame with the way HJM has been handled by care staff and, consistent with that attitude, has labelled (at least to DD) this concern as 'abuse'. I find on the evidence of the applicant, who has nursing qualifications, and the evidence of DD, when he reports the advice of the general practitioner, that it is more likely than not that the skin patches are the visible outcome of the condition known as Senile Purpura. This condition may be exacerbated by handling but I am satisfied that the nursing home has dealt with this problem as best it can. It is an ongoing problem. I have given no weight to the assertion by VZ that he has contacted another (unnamed) general practitioner who is reported as saying the skin problems have been caused by a fall.
I find that the way in which VZ has dealt with the skin problem has not been conducive to him acquiring a proper understanding of the condition such that, as guardian, he could make informed decisions about its treatment.
This, too, has not been in HJM's best interests.
For all the reasons I have given, I am satisfied that VZ is not a suitable guardian for HJM. I can accept that VZ genuinely believes that he is a strong advocate for HJM and that he is ensuring that care providers are brought to account. Unfortunately, in my view, his actions largely bring about the opposite result. It is for these reasons that I have revoked his appointment and appointed the Public Advocate in his place.
In making this decision, I have not been able to ascertain the wishes of HJM given her advanced dementia.
I have decided that the Public Advocate should be given plenary powers because I am concerned, on the basis that a relationship needs to be reestablished with the nursing home, that there will be many things to do, including deciding what role VZ should continue to play in HJM's care.
Order
The order of 12 March 2008 is revoked and an order in the following terms be substituted for it:
1.The Public Advocate of Level 1, Hyatt Centre, 30 Terrace Road, East 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.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.This order is to be reviewed by 2 August 2015.
I certify that this and the preceding [61] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR J MANSVELD, MEMBER
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