TS
[2019] WASAT 56
•28 JUNE 2019
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: TS [2019] WASAT 56
MEMBER: MS H LESLIE, MEMBER
HEARD: 28 JUNE 2019
DELIVERED : 28 JUNE 2019
PUBLISHED : 24 JULY 2019
FILE NO/S: GAA 1429 of 2019
TS
Represented person
MH
Applicant
Catchwords:
Guardianship - Medical treatment - Suitability - Treatment dispute - Behaviour management dispute
Legislation:
Guardianship and Administration Act 1990 (WA), s 110ZD
Result:
Application partially successful
Category: B
Representation:
Counsel:
| Represented person | : | N/A |
| Applicant | : | In Person |
Solicitors:
| Represented person | : | N/A |
| Applicant | : | N/A |
Case(s) referred to in decision(s):
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
These reasons have been taken from the transcript of the hearing and have been edited to anonymise parties and to make necessary corrections or annotations for the purposes of grammar or syntax.
This hearing was convened in relation to matter GAA 1429 of 2019 concerning TS, the represented person, and to deliver the decision as to who should be appointed as a guardian for TS.
Background
It is not in dispute that TS has had an intellectual disability since early in his life as a result of damage to his brain caused by a fall in childhood.
TS also suffers from a number of physical disabilities, including a kyphosis, which is a curvature of the spine, a flat lumbar spine and flexed hip joints that contribute to significant mobility issues. He has also been diagnosed with arthritis of the knee joints and is suspected of suffering from knee pain and from right foot, elbow and shoulder issues. He has cellulitis and a golden staph infection issue.
TS has had multiple admissions to hospital in early 2019, relating to some or all of these matters. On 20 June this year, a s 86 application came before me, made on behalf of the service organisation, Rocky Bay, that cares for and provides accommodation and services to TS. TS has lived in fulltime care in the care of Rocky Bay for many years, and, prior to that, he was residing in fulltime care at what was known as Bennett Brook, which was a care facility.
Application for appointment of an independent guardian
The application sought the appointment of an independent guardian for TS, citing issues regarding the quality of the decisionmaking for TS by his current guardian, his sister, GS. The thrust of the application made is that GS has refused to allow appropriate medical and therapy recommendations to be implemented, thereby putting TS at risk.
On 20 June 2019, I made a declaration that TS is a person for whom both guardianship and administration orders could be made. I also made orders appointing GS, ongoing, as limited guardian to make decisions regarding accommodation and support services for TS, being satisfied, as I was, that there was a need for a guardian with such authorities, given the imminent closing of the facility run by Rocky Bay and thus the need to relocate TS. I was satisfied that GS was appropriately pursuing options for the necessary relocation of TS to an alternative care placement run by Crosslinks Incorporated (Crosslinks). Crosslinks have had a role in providing community support for TS over many years.
I was also satisfied that GS was appropriately pursuing engagement of ongoing community support services and the negotiating of the funding of those services through the Department of Communities and, presumably, in the future, through the National Disability Insurance Scheme. GS has been a guardian for TS, with these authorities for over 10 years, at times, jointly with her sister MP and at times, solely. It is common ground that GS has been a strong advocate for TS over many years.
I was satisfied that GS had, in regard to the questions of TS's accommodation and services, always acted in his best interests and that she was a suitable person to fulfil that role. GS appeared to have reasonable working relationships with the Crosslinks' representatives. Nobody was opposing the accommodation and service plans that she was pursuing.
Nor was there any evidence to suggest that, in these respects, GS was acting, or had indeed ever acted, other than in TS's best interests. I also made a decision on 20 June 2019 that I was satisfied that there was a need for a decisionmaker to make medical treatment decisions and decisions regarding any further medical or other clinical, behavioural or other assessments to be undertaken with respect to TS. The question of who should be appointed to make those decisions was reserved. I now provide my decision on that question and the reasons for it.
Previous guardianship orders for TS
In the fiveyear guardianship order made on 23 October 2008 (the first order), which appointed GS and MP as joint guardians, their authority included the authority to make treatment decisions. On 21 October 2013, upon review of the first order, that authority was omitted, and the order was made to cover decisionmaking in the areas of accommodation and supports and services only (the second order).
The Tribunal file reveals that the second order was made on the basis that there was, in fact, no need for the guardianship order to cover treatment. TS's parents had passed away, and GS and MP, as sisters with a close relationship with TS, could, as designated responsible persons, make treatment decisions under s 110ZD of the Guardianship and Administration Act 1990 (WA) (GA Act), as a less restrictive alternative to a guardianship order for treatment.
On 3 April 2017, upon review of the second order, with the apparent agreement of MP, who participated in the review, the guardianship order was confirmed in terms of its scope but appointed GS as sole decisionmaker, rather than jointly with MP. Again, the authority regarding treatment was not included in the order, apparently, on the basis that s 110ZD of the GA Act was a less restrictive alternative.
It thus appears that, up until the current application filed on 26 April 2019, GS has had responsibility in medical and health care decisionmaking for TS, albeit, at times, jointly with MP. It is not in dispute that TS has had an intellectual disability since early in his life as a result of damage to his brain caused by the fall that has been referred to.
There is no issue that TS is, and always has been, unable to make decisions for himself regarding his health and medical treatment and care and has had to have those decisions made for him by family members his whole life, most recently by GS. Until the months leading up to this application, whilst there may have been robust discussions, there has been no challenge to the quality of the medical decisionmaking by GS and/or MP.
GAA 1429 of 2019
The hearing was attended by three representatives from Rocky Bay, MH (the nominated applicant), who is the Service Development Manager at Rocky Bay, HP and JZ, also from Rocky Bay, and by five representatives from the Department of Communities, being VS, MB who is the People at Risk Team Leader, MG who is the Accommodation and Behaviour Support Clinician, SB who is the Team Leader in individualised support and JB, the recently appointed Local Coordinator for TS. KM from Crosslinks also attended, as did GS and MP and MP's daughter, SP. GC attended as the representative for the Public Advocate. TS did not attend the hearing.
The Tribunal had the benefit of the following reports:
1)a copy of the Department of Communities' Behaviour Support Plan dated 23 November 2017, signed by both the Department of Communities staff and by GS;
2)the Aged Care Assessment Team's (ACAT) referral and attached letter from TS's General Practitioner (GP), Dr F, dated 23 January 2019;
3)the discharge summary and certain records from Sir Charles Gairdner Hospital for an admission 28 January to 31 January 2019;
4)the discharge summary and certain records from Sir Charles Gairdner Hospital for an admission on 8 February to 1 March 2019;
5)Silver Chain records and progress notes covering the period December 2018 to April 2019;
6)a report dated 1 March 2019, written jointly by MG and an occupational therapist written in support of an application for additional funding;
7)a copy of a home assessment done by that same occupational therapist, dated 15 March 2019;
8)various emails between the Department of Communities staff and Rocky Bay staff regarding concerns raised by TS during April of 2019;
9)a further report dated 15 May 2019 from MG and cosigned by SB;
10)a report, dated 15 May 2019, from SG, who is the Department of Communities Area Manager;
11)a report dated 18 June 2019 from CW, the Crosslinks Area Supervisor; and
12)a report from GC dated 13 June 2019.
The issues raised in the hearing
An issue appears to have arisen between GS and the Rocky Bay and departmental providers as to TS's behaviour and state of health over the last 12 months or so, both as to diagnosis and as to management. It appears from the referral letter written by the GP for an ACAT assessment, dated 23 January, to which I have already referred, that:
[TS's] behaviour has changed in the last 12 months, very slowly. He cries a great deal and has fits of screaming. The staff are concerned that he may have dementia.
What appears to the Tribunal to be significant behavioural issues are further detailed in the email from MH to MB dated 18 April 2019, to which I've also referred in the bundles referred to previously. Those issues include TS dropping to the floor repeatedly and refusing to get up and picking at his skin and at his wounds. I will not relate all of the details here, but I incorporate the material contained in that email by reference. It is further noted that the email from SG to MH dated 26 April 2019, (in the email bundle referred to at No 8 in the list of documents referred to above) refers to a meeting between SG and others and GS on 8 April 2019, and states that:
[GS] is reluctant to consent to [TS] having an ACAT assessment or being seen by a gerontologist. She has given and withdrawn consent previously. At this meeting, she gave consent to do both. Although [GS] has consented to [TS] having an ACAT and seeing a gerontologist, she has stated very clearly that she did not want to consider [TS] moving into aged care, and she would not agree to [TS] taking medication. She would not acknowledge the possibility of [TS] having any mental health issues or cognitive decline.
And further in that email it states:
[GS] does not think that [TS] has dementia or mental health issues and does NOT want this discussed. She says that he has always been forgetful and that the escalation in challenging behaviours is due to him being bored. [GS] will NOT consider [TS] being medicated to control his behaviour. [GS] does not think aged care is an appropriate setting for [TS]. She is concerned his behaviour will impact on other residents and that he will end up being medicated to control his behaviour, which she is very much against. (Original emphasis in capitals)
Thereafter, and I think, in fact, on the same date as that email, Rocky Bay made the application to the Tribunal. It appears that, at the time of the application, there was a need for arrangements to be progressed urgently to effect a change in TS's accommodation because of the imminent closure of the Rocky Bay facility where he lives. It appears that, and I find that, communications between the applicant organisation and GS had deteriorated by reason of the disputes that had arisen regarding TS's medical treatment requirements. It appears that GS had begun to progress the option for a transfer of care to Crosslinks and that Rocky Bay was not fully in the loop regarding the progress of those discussions and plans. It is in that climate that the application came to be made.
MH's application and evidence
MH says in the application that GS has not allowed appropriate treatments and therapies recommended by the professionals involved to be progressed and, as clarified in the evidence, MH took the position that, in view of TS's deteriorated presentation and behaviour and the need to find new accommodation for him, certain stated assessments needed to be done in order to have a full understanding of TS's future needs, so as to allow all options to be explored.
The assessments referred to in the application as being required are as follows:
1)a full medical assessment;
2)a full mental health assessment, as recommended by the treating doctors and the therapy provider; and
3)a full ACAT assessment and review by a geriatrician, as recommended by the doctors and the therapy provider.
The application further requested the implementation of all recommendations by treating doctors and therapists and that the prescribed medication by treating doctors be given as a full course. During the hearing, MH and the Department of Communities identified that the principal concern was GS's refusal to allow TS to be given medication prescribed by his doctors including, but not limited to, the antianxiety or psychotropic medication given to TS when he was recently in hospital.
MH's evidence is that the medication was observed to benefit TS and so was continued upon discharge from hospital, but that GS then subsequently withdrew consent for the medication. In addition, preparatory to his move in accommodation and to facilitate a full information being available for the move, MH sought consent for the various assessments, which requests were refused by GS.
GS's evidence and response to the application
GS appears to have or to have had a misunderstanding that allowing an ACAT assessment to occur will necessarily mean a switch of TS into a different branch of government care systems where he would be underfunded and, therefore, not be able to be cared for properly. She advanced this as her reason for refusing the ACAT assessment. MH and the Department of Communities representatives confirmed at the hearing that such an assessment would not result in a reduction in funding but, rather, was simply a tool to be used for the further assessment of TS's care needs.
It is unclear to the Tribunal to what extent GS investigated this question with the relevant authorities, as she should have done, prior to refusing the assessment. Her evidence is that she did in fact take TS, albeit very recently, to an appointment with a gerontologist. She is unclear about any recommended outcome of that appointment. This is unsatisfactory given her role as decisionmaker for TS. No report from the gerontologist was available to the Tribunal.
GS conceded and remained definite in her evidence to the Tribunal that:
1)she did not accept that TS has either dementia or any 'mental condition'; and
2)she would not agree to TS having the anti-anxiety or psychotropic medication recommended or any antipsychotic medication.
It appears that GS's reluctance to pursue geriatric or mental health reviews is driven by these views. It appears that she made her views known to the gerontologist which may explain the uncertainty regarding any determined outcome of that appointment.
GS conceded that she has not sought any alternative medical opinion to that provided by the clinicians currently involved, but was relying only upon her own knowledge of her brother over many years. Her evidence to the Tribunal is to the effect that TS remains the same in his presentation as he has always been. She commented that '[TS] is just [TS]' or words to that effect. MP appeared to support GS in this view. GS did not seem prepared to accept that TS's condition and behaviour was changing and that this needed to be addressed and investigated. The Tribunal noted from GS's evidence and apparent reluctance to have TS 'labelled' (as she put it), in what she seems to perceive to be a pejorative or shameful way.
It is noted that the arrangements being progressed with Crosslinks regarding future accommodation and care are not yet set in stone. KM indicated in evidence that it may be that the assessments and medication issues raised by Rocky Bay will need to be considered by Crosslinks if indeed the problems are found by them to be as Rocky Bay have stated, either as a result of pretransfer assessments or assessments made after TS's transition into the care of Crosslinks. KM conceded that in that event, Crosslinks might be faced with the same issues regarding GS's views as Rocky Bay have faced. It does have to be said, however, that Crosslinks does seem to have found GS appropriate and wellmotivated in their dealing with her to this point.
Tribunal's consideration of the matter
The Tribunal finds that TS's health and behaviour has deteriorated in the last six to 12 months. In this regard the Tribunal accepts the oral and documentary evidence provided by Rocky Bay and departmental personnel and prefers it to the evidence of GS and MP. The Tribunal finds no reason why the evidence from the care organisation and the departmental representatives would be anything but bona fide and in TS's interests. They have no interest in presenting evidence that is not accurate.
The Tribunal finds that it is in TS's interests that his diagnosis be clarified, in particular, that questions relating to his mental health and what may be an emerging dementia condition be clarified, and that such assessments as will assist in the at clarification process be conducted. The Tribunal accepts that GS has been reluctant to accept the need for further assessments and has indeed, at times, refused to consent to them being conducted. At times she has vacillated and given and then withdrawn consent. In this regard, the Tribunal accepts the evidence of Rocky Bay and departmental representatives and prefers it to the evidence of GS where there is a conflict in the evidence.
The Tribunal finds that it is not in TS's best interests for there to be uncertainty or equivocation in the processing of what are judged by the professionals involved in his care to be the necessary assessments. The Tribunal finds that it is in TS's best interests that all assessments recommended by the clinicians involved be undertaken expeditiously. The Tribunal accepts that GS has, at times, refused to accept pharmacological treatment recommended for TS, in particular, the use of antipsychotic medication or other medications to manage his anxiety and his behaviour.
At times GS has vacillated and given and then withdrawn consent. In this regard, the Tribunal again accepts the evidence of Rocky Bay and departmental representatives and prefers it to the evidence of GS. The Tribunal finds that it is not in TS's best interests for there to be any uncertainty or equivocation in the clinical use of recommended medications. In the absence of any expert opinion to the contrary, the Tribunal finds that it is in TS's best interests for the recommendations of his current treating doctors to be able to be implemented immediately.
The Tribunal accepts that GS has her brother's best interests at heart and is seeking to manage his medical care in what she perceives to be his best interests. There is no argument that she has done so for many years appropriately. It is understandable that she would want to prevent him from being medicated as a matter of convenience for management when such medication may not be clinically indicated or otherwise essential There is undoubtedly fear in the community currently, particularly given recent media emphasis to these matters, that such practices are sometimes used in some quarters. I hasten to add that there is no evidence that this is the case presently with TS.
It is understandable also, that GS may seek to protect TS from being labelled in a way that she herself considers to be pejorative and, perhaps, shameful. However, in the view of the Tribunal it is not appropriate for GS to dispute the clinical judgments of his doctors and therapists and to prevent care based on those judgments without any alternative medical evidence to support her view. For her to do so based on no more than her own inexpert view is, in the view of the Tribunal, not in TS's best interests. It was open to GS as TS's medical decisionmaker to seek second opinions to back up her views. But at no time did she seek to do so or, if she has done, so no such evidence has been placed before the Tribunal.
In the view of the Tribunal there is a place for the limited use of medication to manage a person's behaviour where to do so is required in a care environment to reduce the person's level of anxiety and agitation, and so to moderate his or her behaviour and ensure his or her own safety and the safety of others. Such a course must, of course, be a last resort and must only be adopted when all other lessrestrictive methods of managing the behaviours have been exhausted. Given that there is an issue of the possible use of medication as a behaviour management tool rather than to treat a clinical condition it is appropriate that there be, and I find that there is a need for, a guardian to oversee such matters in TS's best interests.
Conclusion
The Tribunal concludes that an alternative guardian is needed with authorities in relation to medical and behaviour management. The only available alternative to the present medical decisionmaker, GS, is the Public Advocate. In any event, in the view of the Tribunal, because of the difficulties at least some of the time between the family and some of the care agencies, an independent guardian is needed in TS's best interests in these limited areas of decisionmaking.
In the view of the Tribunal, the Public Advocate should be appointed for a two year period to enable the necessary assessments to be conducted and for TS's recommended medical treatment to be continued and his behaviour managed, if necessary, during the time required for his full assessment and his ultimate transition from one care provider to the new care provider, whomever that may end up being.
The timeframe is somewhat arbitrary. It is necessary to allow a sufficient period for the transition to occur and for there to be a time allowed for TS to settle into his new accommodation and, hopefully, to return to his baseline of presentation. Since the move itself is likely to cause disruption and potential upset to him, given that he has lived for many years in Rocky Bay, in the view of the Tribunal, a two year period prior to review is appropriate. Of course, if the circumstances require it, an earlier review could be sought.
It is unclear to the tribunal if GS will ever change her views in relation to the diagnosis and medication use questions. However it seems to the Tribunal, given her past strong advocacy for TS, that there is no reason why, at some point in the future, GS could not resume the roles that the Tribunal proposes to give to the Public Advocate for the present if she can persuade the Tribunal that, having considered the results of the assessments being done and having reflected on the advice of the clinicians caring for TS at the time, she can be relied upon to act in TS's best interests by following the recommendations of his therapists and clinicians, whomever they may be at the time, regarding his medical and health care treatment and his behaviour management more generally.
Orders
The Tribunal declares that the represented person, TS is:
(a)incapable of looking after his own health and safety;
(b)unable to make reasonable judgments in respect of matters relating to his person;
(c)in need of oversight, care or control in the interests of his own health and safety or for the protection of others; and
(d)in need of a guardian.
The Tribunal orders:
The guardianship order dated 20 June 2019 is amended so that it now reads:
1.GS of [address omitted] Western Australia is appointed limited guardian of the represented person's estate 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; and
(c)To determine the services to which the represented person should have access.
2.The Public Advocate of David Malcolm Justice Centre, Level 23, 28 Barrack Street, Perth, Western Australia is appointed limited guardian of the represented person with the following functions:
(a)To make treatment decisions for the represented person, subject to Division 3 of Part 5 of the Guardianship and Administration Act 1990 (WA);
(b)To consent to the use of restraint in the interests of the represented person's health and safety, on the following basis:
(i)a restraint management plan setting out the purpose and circumstances under which restraint is to be used. The plan must be approved by a medical practitioner and be regularly reviewed; and
(ii)a decision to use restraints should be made only after all reasonable available less restrictive alternatives have been considered and found not to be successful.
3.The guardianship order is to be reviewed by 28 June 2021.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS H LESLIE, MEMBER
24 JULY 2019
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