TGI and HI
[2012] WASAT 92
•7 MAY 2012
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: HUMAN RIGHTS
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: TGI and HI [2012] WASAT 92
MEMBER: MS H LESLIE (SENIOR SESSIONAL MEMBER)
HEARD: 20 MARCH 2012
DELIVERED : 20 MARCH 2012
PUBLISHED : 7 MAY 2012
FILE NO/S: GAA 3802 of 2011
BETWEEN: TGI
Applicant
AND
HI
Respondent
Catchwords:
Guardianship and administration Application for leave to review Change in circumstances or other reason for review Continuing conflict between son and carers Continuing need for independent guardian Application for leave dismissed
Legislation:
Guardianship and Administration Act 1990 (WA), s 86(1), s 87, s 87(1)
State Administrative Tribunal Act 2004 (WA), s 77
Result:
Application for leave refused
Category: B
Representation:
Counsel:
Applicant: Self-represented
Respondent: N/A
Solicitors:
Applicant: Self-represented
Respondent: N/A
Case(s) referred to in decision(s):
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
The Tribunal dismissed an application for leave to apply for review of an order which appointed the Public Advocate as limited guardian of an elderly woman with multiple diagnoses. The application for leave was made by the son of the woman, and raised concerns about the quality of care received by the woman, the son's ability to visit her and the role played by the guardian.
The issues raised in the application about the care of the woman and conflict between the carers and the son were substantially the same as matters dealt with when the guardianship order was made on 12 April 2011. Having considered the application, evidence from the applicant, information from the Public Advocate and other information, the Tribunal determined that there had been no change in the woman's circumstances or any other reason which required that a review be held and so dismissed the application.
Reasons of the Tribunal
These reasons relate to a determination of the Tribunal to dismiss an application for leave to apply for review of a guardianship order dated 12 April 2011 by which the Public Advocate was appointed limited guardian of HI (the represented person). The application for leave was determined on 20 March 2012 and these written reasons are produced pursuant to s 77 of the State Administrative Tribunal Act 2004 (WA).
The legislation
Section 87 of the Guardianship and Administration Act 1990 (WA) (GA Act) provides for leave to apply for review of an order made by the Tribunal:
(1)Any person may request the State Administrative Tribunal for leave to apply for the review of a guardianship order or an administration order.
…
(5)The State Administrative Tribunal may
(a)refuse the request; or
(b)if it is satisfied that because of a change of circumstances
or for any other reason a review should be held, grant, either unconditionally or subject to any condition, leave to the person to apply for the review.
History of orders
TGI, the applicant son, seeks leave to apply for review of a guardianship order, dated 12 April 2011, (the order) which confirmed the appointment of the Public Advocate as guardian with the functions to consent to any treatment or health care of HI and to determine what contact, if any, HI should have with others and the extent of that contact. That order represented an alteration to the original order in relation to HI that was made on 13 October 2010 (the original order). The original order, made at a time when HI still lived at home, had appointed the Public Advocate with the functions to decide where and with whom HI should live, to consent to any treatment or health care of HI and to determine the services to which HI should have access.
It appears that after the original order, HI moved into permanent care and, by the time of the designated review, the functions required by the guardian had altered. Health care authority remained a requirement and an issue had developed regarding TGI's visits to HI at the care facility (facility). The Tribunal found there was a need for an independent guardian to advance the best interests of HI because of the ongoing conflict about the visits and the care provided to HI. Because of the nature of the conflict, the order was made for a period of two years. The Public Advocate was authorised in both the order and the original order to delegate the role of guardian to a qualified officer within her staff (the delegate guardian).
The application for leave to apply for review
The current application under s 87(1) and s 86(1) of the GA Act was received at the Tribunal on 18 November 2011. In that application, TGI sought '... to appoint my brother [S] as guardian [sic] secondary me TGI'.
The reasons given in the application for making the application are essentially summarised as follows:
1)that the delegated guardian has acted corruptly in organising and authorising a particular incident involving Police action against TGI at the facility;
2)that the delegated guardian has failed to act properly in the performance of her function as guardian and that this has caused abuses to be permitted against HI at the facility;
3)that the guardian knowingly permits these abuses to continue, including 'overdosing' with medication, permitting the occurrence and worsening of bedsores, locking HI both inside and out of her room, permitting her to be assaulted by staff, and causing her emotional distress in that she witnessed the Police incident involving TGI;
4)that the delegated guardian is stopping HI's doctors from properly treating her for her cancer condition;
5)that the doctor has been advised not to provide anything regarding this issue in writing and that the delegated guardian was somehow behind this;
6)that the delegated guardian has accessed HI's funds and has colluded with TGI's brothers and authorised significant withdrawals from HI's account at Westpac;
7)that the delegated guardian has taken the land title deed for his (TGI's) house;
8)that the delegated guardian somehow orchestrated the making by the Magistrates Court of three violence restraining orders (VROs) against TGI when they were not justified;
9)that the delegated guardian is preventing TGI from seeing HI.
At the hearing, TGI gave evidence in support of his application. He was not legally represented. He insisted that there were sufficient grounds for the matter to be reopened by the Tribunal. HI did not attend or participate in the hearing.
In the course of his evidence and the submission from the Public Advocate, it emerged that:
1)The interim VROs granted, it appears, to the director, the supervisor and the matron of the facility, remain on foot, and there is to be a further hearing on 28 March 2012.
2)If anything, the contact issues are more problematic now than at the time of the making of the order on 12 April 2011 and that the situation has deteriorated (indeed, in TGI's words, 'deteriorated greatly').
3)The interim orders do not bar TGI visiting HI and that the presiding magistrate was alive to this aspect.
4)The guardian and the facility staff (including those who applied for VROs) do not seek to stop TGI visiting HI; all they seek to do is stop the inappropriate behaviour.
5)There was an incident in January 2012 which resulted in TGI being barred from the facility for two weeks.
6)Thereafter, there was some negotiation as to a framework for visiting by TGI and that certain hours were agreed when he might visit alone, and arrangements were also agreed as to TGI visiting in the company of third parties. It appears that TGI was represented by solicitors in these negotiations.
7)TGI has visited HI. It is unclear the extent to which he has done so. He claims that the staff who hold the VRO orders deliberately 'bar [his] way' and otherwise act so as to make it impossible for him to visit without being in breach of the VROs and that they do this deliberately and 'provoke' incidents in order to 'set [him] up, to make [him] a criminal'.
8)TGI said initially that he had not seen HI 'for three months' because of these problems. He then conceded that he had ceased trying to visit for a period early in 2012, but that, in the week before the hearing, he had seen her. Initially, he said he had seen her for half an hour but subsequently conceded that he had seen her for 'half an hour or so' every weekday and also on the weekend of that week; that these visits had occurred in the dining room and that each time HI had been dressed and sitting in her wheelchair and had been able to talk to him; and that he had been able to take her certain food. It appears that at times she may have been crying, wanting him to stay and/or visit more.
9)TGI says that he started to visit again on the advice of his legal advisors, though he continued to claim that he was 'too afraid to visit [his] mother. I'm afraid to go there just in case I might be arrested or something by the police'.
10)TGI stated that the claims about bed sores and HI being locked in her room related to an earlier period.
TGI says that he has complained about these matters to the aged care complaints authorities, that he has complained to the Police Professional Standards authorities, and that he has issued proceedings in the Federal Court and in the Human Rights Commission. He claims his first solicitor was bribed and is concerned that a solicitor that he is currently using will also be bribed. He implied that the Tribunal had some sort of role in the VRO outcomes.
S, another of HI's sons who is the guardian proposed by TGI, did not attend at the hearing, nor did he put himself forward for the position of guardian. To the contrary, through the Public Advocate, he indicated that he did not support the application and wished the Public Advocate to continue in the role.
The Public Advocate submitted that there was no sufficient ground for reviewing the guardianship order; that the only change in circumstances was that the situation surrounding the visiting issue between TGI and the facility had deteriorated even further, and that the Public Advocate was still required to safeguard HI's best interests.
Should leave to apply for a review be granted?
The issues raised in this current application for leave are substantially the same as were canvassed in the 2011 hearing. TGI raises concerns about the current care and contact arrangements for HI and is dissatisfied with the arrangements for guardianship.
The medical reports before the Tribunal confirm HI is a person for whom a guardianship order can be made and is a person who cannot make personal decisions for herself. Because of the continuing conflict, indeed the deteriorated situation, (and it is noted that this is common ground) between TGI and the care providers, HI remains in need of an independent guardian. These circumstances remain essentially unchanged from when the matter was last heard before the Tribunal about a year ago.
The Tribunal does not accept as credible any of the allegations made by TGI, either as to the inappropriate care of HI, as to the unreasonable nature of limits placed on his visits, or as to any impropriety or insufficiency in the actions of the delegated guardian. There is not one scintilla of evidence to corroborate what has been alleged. Further, given his demeanour and presentation at the hearing, the Tribunal does not find TGI to be a credible witness. It is accepted that he loves HI, but it is clear that TGI has his own personal issues and it appears that he is placing an interpretation on events that just does not 'stack up' under objective scrutiny. Aspects of his demeanour and the tender of much of his evidence and submissions were consistent with the mental health issues referred to in the report to the Tribunal of Dr JC of 4 October 2010 which was before the Tribunal at the time of the making of the original order.
It is accepted that TGI should be able to visit HI but that it is reasonable that visits only occur in a way that is not detrimental to the health safety and welfare of HI or the staff that care for her and is not such that jeopardises her accommodation place at the facility. An independent guardian is needed even more so now that at the time that the order sought to be reviewed was made. There is no alternative to an order in the terms of the current order.
That being the case, the Tribunal does not grant leave for an application for review to be made.
Orders
Leave is not granted and the applications are dismissed.
I certify that this and the preceding [18] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS H LESLIE, SENIOR SESSIONAL MEMBER
0
0
2