UH
[2024] WASAT 83
•9 AUGUST 2024
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: UH [2024] WASAT 83
MEMBER: MS R BUNNEY, MEMBER
HEARD: 25 JUNE 2024
DELIVERED : 2 AUGUST 2024
PUBLISHED : 9 AUGUST 2024
FILE NO/S: GAA 2148 of 2024
UH
Represented Person
CARE HOME
Applicant
Catchwords:
Guardianship - Extensive psychiatric history - Hoarding disorder - Squalor living - Delusional pain disorder - Functional neurological disorder - Numerous physical health issues - Risk of self-neglect - Lack of insight - Impaired judgment - Appointment of Public Advocate as guardian
Legislation:
Guardianship and Administration Act 1990 (WA), s 44(2)(a), s 110ZD
Result:
Public Advocate appointed
Category: B
Representation:
Counsel:
| Represented Person | : | In Person |
| 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
UH is a 66-year-old woman who has been bed-bound for two years. She acknowledges that there is no medical reason why she cannot walk. She says that there have been numerous times in the last 20 years when she has been unable to walk but will then recover.
A significant issue for UH is that she experiences tremendous pain when touched. She does not shower as she says the impact of water on her skin, and even rubbing cream on herself, can cause bruises.
UH acknowledges that her inability to walk could be associated with her mental health conditions. She has received the following diagnoses:
(a)personality disorders such as anxious avoidant personality disorder and severe personality disorder; and
(b)psychiatric illnesses including schizoaffective disorder, depression, anxiety, conversion disorder, delusional disorder and elective paraplegia.
UH understands that she is unwell and is curious about what treatments are available that may improve her health. She survived bowel cancer in 2021 and has also been diagnosed with kidney stones, scoliosis, chronic fatigue syndrome and chronic pain. Despite her challenges, she is optimistic and is hoping to travel and live independently in the future.
UH is articulate, intelligent and is described as pleasant and chatty. The doctors that treat her allow her to decline medical treatment as it appears she has the capacity to do so. The Care Home where she lives made the application for guardianship because they are very concerned that she is at risk due to extreme hoarding and squalid living.
I have decided to appoint the Office of the Public Advocate (Public Advocate) as UH's guardian for the next five years to protect her health and safety, and hopefully improve her quality of life. These are my reasons for doing so.
Three questions the Tribunal must answer
The starting point for the Tribunal, when making decisions under the Guardianship and Administration Act 1990 (WA) (GA Act) is that every person is presumed to be capable of looking after their own health and safety, managing their own affairs and making reasonable judgments in respect of matters relating to their estate and their person.
When the 'presumption of capacity' has been set aside, the Tribunal can consider making orders. The primary concern of the Tribunal is UH's best interests, and I must take her views and wishes into account. However, the Tribunal might make a decision in UH's best interests that may not be exactly what she wants.
When deciding whether or not to appoint a guardian for UH, the Tribunal must answer three questions:
(a)Does UH lack the capacity to make her own decisions about her personal matters?
(b)If so, is there a need for the Tribunal to make an order to appoint a guardian? Or is there another way for decisions to be made in the UH's best interests?
(c)If there is a need for an order, who should be the guardian, what functions or powers should they have, and how long should the orders run before they are reviewed?
The Tribunal will make findings of fact about capacity by reference to the oral and written evidence of medical, allied health and other professionals, and to lay people. I have considered all that evidence and need not set it out in detail. The relevant features are summarised later in these reasons.
Administration
The application to the Tribunal included an application for administration. When this issue was explored at the Hearing, no one that attended had any concerns about UH's ability to manage her finances.
I am satisfied, based on the evidence before me, that the presumption of capacity in respect of UH's ability to manage her financial matters has not been set aside. I will dismiss the part of the application that relates to administration.
UH's views and wishes
UH had hoped that this process would involve someone being appointed to help her with finding other options for rehabilitation and to improve her health. UH told me that she could make her own decisions and would prefer to continue to do so. UH had never thought about the possibility of losing the ability to make her own decisions, but she told me that if the Tribunal's view was that it was necessary to appoint a guardian, she would 'go along with it'.
UH told the Investigator from the Public Advocate's office (Investigator) that:
(a)she did not have a difficult childhood;
(b)currently her mental health conditions are under control;
(c)she consents to all treatment, and is aware of the consequences and impact of refusing medical treatment and assistance with hygiene;
(d)she agrees to investigations when presenting at hospital; and
(e)she would like a rehabilitation-type program to improve her health.
I observe that UH's description of herself, as someone who consents to medical treatment and investigations, is not consistent with the person described in the evidence filed with the Tribunal. The documents filed by the emergency department at Hospital A (ED) and the medical specialists that have met with UH portray a woman that repeatedly refuses medical interventions and declines medical care against her own interests.
UH's view is that she can make her own decisions, and her wish is for that to continue. However, due to the inconsistency between her beliefs and reality, I am unable to give effect to her wish. Because of how well she presents, it is unclear to anyone speaking with UH whether her statements are factual or delusional unless they can compare them against observation or professional reports.
Question 1 - does UH lack the capacity to make decisions about her personal matters?
(1)(a) When can a guardian be appointed? The test for incapacity
To appoint a guardian for UH, I must be satisfied that she is over 18 years of age and that one or more of the following criteria apply:
(a)she is incapable of looking after her own health and safety;
(b)she is unable to make reasonable judgments in respect of matters relating to her person; or
(c)she is in need of oversight, care or control in the interests of her own health and safety or for the protection of others.
(1)(b) Is UH incapable of looking after her own health and safety?
UH has been under psychiatric care for over 30 years. The evidence before the Tribunal of hoarding and severe squalor living goes back approximately 15 years. The psychogeriatrician described this condition as persevering and progressively getting worse. UH also has a history of chronic suicidal ideation.
In 2009, UH had to leave her rental property and move in with her daughter SS. She was compulsively hoarding in her home, including rotting food and bags of faeces, and living in a mouldy room with a pest infection. From this time onwards, her physical health steadily declined and she was admitted to various psychiatric wards due to physical and mental deteriorations.
In 2011, she was admitted to Hospital F due to poor self-care and she was complaining of cardiac symptoms. By that stage, she was almost housebound but was still mobilising occasionally. She moved into a psychiatric hostel that specialised in mental health rehabilitation in 2011 for around seven years. In 2015, she developed unexplained pain in both legs and started using a walking frame.
UH moved back in with SS in 2018 for two years. After around six months, UH did not leave her room, use the toilet or shower. UH would not allow SS to clean her room, which was in an unhygienic state, containing dirt, mould and bags of rubbish containing faecal matter.
When SS was no longer able to care for her, UH spent a few months at Hospital B in 2020, and then moved into transitional care before moving to the Care Home in May 2020. By 2022, she was completely bedbound.
UH gave evidence at the Hearing that the cleaners at the Care Home do not clean as frequently as she would like. However, the Care Home states that UH places restrictions on when her room may be cleaned and what part of the room may be cleaned. A medical report states the following:
…
Compulsive hoarding is almost an untreatable disease. [UH] continues to hoard items in her room while living in her current nursing home. She hoards bags of used incontinence pads in her room, resulting in unimaginable odour. [UH] has no insight into her suffering from hoarding and squalid living. Disturbingly, the foul smell from her room does not bother her. She uses towels as continent pads and then refuses cleaners to clean these contaminated towels. She is not able to identify that her room is an occupational hazard due to her unhygienic practice in the nursing home. [Medical Report dated 20 June 2024, page 19]
Instead of a shower, UH will use Betadine to paint all over her body to avoid infection, in addition to Vaseline that she uses as a barrier cream. Because UH finds it so painful to move, her bed sheets are unable to be changed regularly, so it is necessary to dispose of her mattress every few months. Her sheets have been described as black, and having mould growing where UH was sitting.
I am satisfied, and I find, that UH is currently incapable of looking after her own health and safety. She has impaired decision-making and will not allow the staff at the Care Home to assist with cleanliness and hygiene. UH has been unable to manage her personal care and hygiene for at least five and a half continuous years. She lacks insight into how her decisions impact on her health and safety.
(1)(c) Is UH unable to make reasonable judgments in respect of matters relating to her person?
The lead up to the application being filed at the Tribunal on Tuesday 30 April 2024 illustrates UH's inability to make reasonable judgments about her personal matters. Due to UH's pain, it is difficult for the Care Home to change her sheets regularly. While it was agreed that UH would change her sheets every three weeks, this does not occur.
On the Thursday before the application was filed, UH was found crying in her room and stated that the mattress was causing her pain. The nurse suggested some pain medication, but UH refused. UH told the nurse that she had contacted the police and Hospital A regarding the pain that she was experiencing from the mattress. She was advised that the police were unable to do anything.
On the Friday, the facility manager at the Care Home (Manager) spoke to UH about her call to the police about her mattress. UH told the Manager that the call was not about her mattress but about her situation, and that the police told her they would transfer her problem to their welfare division.
On the Monday, it was intended that UH's sheets and mattress would be changed. UH said that she had terrible leg pain and she would not be able to transfer from her bed to a chair unless an ambulance came with a stretcher. The sheets and mattress were not changed on the Monday.
Later that day, UH told a nurse that she called police to advise them that:
(a)she has cancer; and
(b)the Care Home was not providing a specific diet for her.
Early on the Tuesday, the police visited the Care Home. After speaking with UH, the police advised the Manager that UH did not remember why she called them, but she had agreed to be transferred to Hospital A by ambulance for a pain review. An ambulance was called.
The file note prepared by the Manager that day explained what occurred when the ambulance arrived:
… [UH] spoke to ambulance officers is a calm, rational manner. She was coherent, making logical sense and explaining her history of mental health and her coping strategies. [UH] was able to joke and laugh with the ambulance officers. [UH] advised that she felt that she did not need to go to hospital as her pain was managed at site. She requested ambulance officers to change her mattress …
[UH] required two ambulance crews to assist her to leave the facility. [UH] was initially resistive to all manual handling including hoist, rolling. [UH] voiced pain when moving. [UH] was given [medication] for pain management. [UH] was able to get onto a stretcher after [3 hours] and then opted to go to [Hospital A]. [Progress notes, pages 10 – 11]
The Care Home filed the application to the Tribunal later that day. The Care Home had previously arranged referrals to other services and involved an Older Adult Mental health service, so after exhausting all other options, the application was made.
The issues around changing UH's mattress and her ability to make reasonable judgments about her health and safety are continuing. The progress notes from the Care Home prepared around six weeks later, when UH's sheets and mattress were again changed, state:
… [UH] talked about how the only option would be for ambulance to come with stretcher …[UH's] room was cleared of all dirty linen, her sheets were all black (minced/soil-like consistency of matter)/dark brown stains under her bottom, with stains to the edges of bedsheet at feet, ?betadine ?faecal matter. [UH's] sheets were removed, mattress cover had black colouration, cover unzipped to check integrity - the sponge in the middle part of mattress was stained brown indicating waterproofing compromise. Mattress had to be thrown. This was explained to [UH] and she agreed …
[UH] expressed she thinks she will go back to hospital in a few days as historically she would be very sick after these transfers. She was teary and expressed her helplessness, said she still feels like she is sitting on bricks. [UH] still keen to find a piece of foam out of "cheap and nasty sponge" to layover her current mattress, says she is "autistic" like that as that is what she grew up sleeping on. [Progress notes dated 10 June 2024, pages 2 - 3]
During the Hearing, UH told me that she had her mental health conditions under control and would take alternative medicines and meditate. She said that while it was straightforward to deal with her mental health conditions, it was her physical conditions that were more complicated. Even though she knew there was nothing wrong with her physically, she explained that she just needed to keep persevering as:
… I can't get past the fact that in my mind, I'm still well.
[ts 9, 25 June 2024]
While she presents an optimistic front, the evidence shows that UH is so resistant to care that she will not accept pain medication when she is in pain. She will not consent to any scans or medical interventions when she is taken to ED, which is discussed further below. When having her bedsheets changed, she will frequently contact the police and ambulance, where she will joke and laugh with the ambulance officers while taking three hours to move from her bed to a chair.
I am satisfied that UH is unable to make reasonable judgments in respect of her person.
(1)(d) Is UH in need of oversight, care or control in the interests of her own health and safety?
UH is avoidant and will avoid routine personal care. UH has extremely long toenails and will scream whenever anyone tries to cut them, even when she is given oxycodone. UH told me that she has been extremely sensitive her whole life, so much so that when she was a child, her mother was unable to cut her toenails. The neighbours would hear her screaming and would wonder what her mother was doing to her. As UH has refused podiatry care, she may now require hospital intervention to cut her toenails.
UH has:
(a)avoided following up in relation to her kidney stones;
(b)avoided monitoring for a further occurrence of bowel cancer; and
(c)refused medical interventions such as ultrasounds, x-rays, abdominal imaging and the investigation of her symptoms when she presents to ED.
Various clinic letters provided by Hospital A are summarised below. When I asked UH about the issues raised in the letters during the Hearing, she consistently gave very different responses to the advice and events that are recorded in the letters.
Pain management clinic
UH told me that the pain specialist, Dr M, diagnosed her with allodynia, which is extreme sensitivity to touch and:
… he explained that … I feel pain in a different way to other people, and it's a type of over-sensitivity … It's an actual condition, and you just have to take steps to deal with it, otherwise you will hurt yourself more, you know, than is necessary. [ts 10, 25 June 2024]
The clinic letter from Dr M dated 21 March 2024 states during the initial examination, UH appeared to be highly sensitive to pain. But once Dr M was able to perform sensory testing on her, she had some slightly reduced sensation on her feet, but there was no significant allodynia apart from her anxiety, which was related to anything or anyone touching her skin.
When I told UH that the letter stated that Dr M did not diagnose her with allodynia, UH explained that her understanding of what Dr M had said to her was:
... I took it that what he meant was … whether it comes from a mental thing or a physical thing, there's no actual physical damage to me. I am feeling those things, but there is no physical diagnosis to say you're damaged in this way or you're damaged in that way. It's just that it's my experience, and that they can't really tell why I experience it, but I do experience it. [ts 12, 25 June 2024]
I observe that this is inconsistent with the claims made by UH early in the Hearing that rubbing her skin or the impact of water in a shower could cause bruises.
The psychogeriatrician's opinion is that the severe personality disorder has caused UH to develop a delusional pain disorder and a functional neurological disorder, also known as conversion disorder, meaning that there is a problem with how UH's brain receives and sends information to the rest of her body.
The notes of the psychogeriatrician describe UH's delusional belief that she has an allergy or sensitivity to water. I asked UH in the Hearing whether she had a sensitivity to water, and she said that it was not the water, but the sensitivity of her skin. It appears that she had changed her position from what she told the psychogeriatrician.
The psychogeriatrician commented that UH uses denial, minimisation, distraction, diversion and confabulation as her defence mechanisms when confronted with difficult questions. This is consistent with how I experienced UH's responses to my questions, particularly when faced with written evidence that was contradictory to her own. I prefer the evidence set out in the clinic letter from Dr M that records his opinion that UH is highly anxious to anything or anyone touching her.
Contrary to what UH told the Investigator, she disclosed to Dr M that that she had a traumatic childhood. Other evidence indicates that UH experienced several adverse childhood experiences, which are potentially traumatic life events occurring in the first eighteen years of life. I observe that UH is able to provide accurate information about herself, and perhaps this occurred with Dr M due to the trust she had built in that relationship. I note that Dr M is the only doctor that confirms that he has a follow up appointment with UH, which she also confirmed.
Urology clinic
I asked UH during the Hearing what she was doing about the management of her kidney stones. UH told me:
… they generally don't do follow-up appointments at all … I wanted those, but they discourage it, because … kidney stones is more of a thing that you don't like as a patient, but the doctors aren't particularly concerned about them, you know? They're just something you have to be more or less put up with and take your medicine … But that's what they've told me, anyway.
And for years, I went for all sorts of follow-up appointments for them and everything, and they said that there's not much point.
[ts 13, 25 June 2024]
I told UH that the clinic letter from the urology clinic stated that they had a telephone appointment arranged but she declined to attend. UH said that that was incorrect and that something went wrong with her phone, so she was unable to talk. She went on to say:
… I'm the person who wanted more intervention, but they were the ones who said to me, look, you just have to stay home and take your pain medicine, you know. You can't just come to the hospital every time your kidney stones are a problem. [ts 16, 25 June 2024]
UH then said that she would be happy to attend a further appointment with the urology department.
The records show that UH had her last scan for kidney stones in May 2022. Appointments have been arranged numerous times, but UH did not attend the telephone clinic appointments as she did not answer her telephone. A clinic letter dated 3 August 2023 by consultant urologist Dr S states:
…
Phone appointment was arranged today as she could not attend and she lives in a Nursing Home. Apparently, she had called our Clinic and wanted to cancel our Clinic appointment as she had declined seeing us and not want any intervention.
I called her residential home today and spoke to her nurse and a Carer who looks after her. Once again, [UH] has declined to speak to us on the phone. From what the nurse tells me, it appears [UH] has capacity to give consent and does not have a Power of Attorney. Therefore, we have decided to discharge[.]
I accept the evidence from Dr S, and I prefer this evidence to the oral evidence given by UH which is irreconcilable with the written evidence before me.
General surgery clinic - bowel cancer surveillance
UH's bowel cancer is in remission. During the Hearing, I asked UH about how she is managing the follow-up cancer surveillance, and she said that the doctors are happy to do it with a blood test every six months. She stated that as she has a 'spinal deformity', it is difficult to do an MRI so the doctors are satisfied with blood tests.
On the basis of our earlier discussion about her extreme sensitivity to pain, I asked how it was possible to take her blood. UH told me:
… Well, it's very painful and difficult. It wasn't so bad before the cancer. I was never a person who was bothered by having blood tests. That was something that wasn't a problem for me. But since the cancer, those things have got over-sensitive, too. And the doctor said that often happens to people once you've had cancer, and that it just has that sort of effect on your system. You became more over-sensitive than you were before, you know? And so, they're difficult, but I still do them. I mean, I don't like them, but I still do them. [ts 13, 25 June 2024]
UH was meant to be seen by the general surgery clinic at Hospital A in March 2023 for a follow up but she declined to attend and advised that she wanted to be discharged from the clinic. The clinic followed up in May and her decision had not changed. The clinic letter dated 29 May 2023 by Dr K states that she has been discharged from the clinic and:
… [UH] understands the current risk of recurrence and I have explained to her the process involved with colorectal cancer surveillance involving a colonoscopy as well as a CT scan chest, abdomen and pelvis. She reports that a colonoscopy unfortunately, would be too much hassle and she is currently bedridden and any movement or travel exacerbate all her symptoms. I have obtained a collateral history from a nursing home staff including the clinical nurse on today and reported to me that [UH] is capable of making medical decisions on her own[.]
In the context of above I have decided to discharge her from our clinic. In regard to colorectal cancer surveillance we would recommend that she has colorectal cancer surveillance for up to five years. We recommend that she has six-monthly [blood tests], and an annual CT chest, abdomen and pelvis and she will be due her four-year colonoscopy in April [2024.]
The letter from Dr K infers that the blood tests would be performed by UH's general practitioner.
I find that UH's evidence is inconsistent and evolves as she endeavours to present a façade that she is managing her health conditions. UH's comment that she is now more sensitive since surviving cancer is incompatible with her earlier statement that she has been extremely sensitive her whole life, to the point of screaming when her toenails were cut as a child. I do not accept UH's enthusiastic confirmation that she is having blood tests every six months to monitor for bowel cancer in circumstances where the evidence shows she will not consent to an ultrasound or x-ray, which are far less invasive than a blood test.
I am satisfied, and I find, that UH is in need of supervision and oversight in order to protect her health and safety. I find that any new specialist meeting UH would not receive an accurate account of her medical history if they were relying on a report from UH.
It is therefore necessary that someone have oversight of UH's various medical conditions and the information and diagnoses provided by her doctors. It is also necessary that authorisation be provided so that medical and other information about UH's health can be shared with agencies or organisations in order to advance UH's best interests.
(1)(e) Conclusion on capacity to make personal decisions
I am satisfied, and I find, that the presumption of capacity has been set aside and UH is a person for whom I can appoint a guardian. The medical evidence confirms that UH is suffering from a severe personality disorder, hoarding and living in squalor. She has no insight into her illness and is therefore unable to cooperate with people trying to assist and care for her.
I next turn to explain why I am satisfied that UH is in need of a guardian.
Question 2 - is there a need for a guardianship order or is there a less restrictive option?
There is no doubt that UH requires assistance to make decisions about her personal matters. The question I need to answer at this stage is not whether she needs assistance, but whether she needs a guardian to be appointed for that purpose.
I have taken into account UH's views that she does not mind if I appoint a guardian although she would prefer to continue to make her own decisions. I must bear in mind the need to adopt a less restrictive option if possible.
I am not satisfied that informal decision-making is an option due to the periods of time where UH will not have contact with SS, discussed further below, and her lack of consistent contact with the only other family members mentioned in the documents, her two sisters. There is no mention of any friends or visitors.
I am also not satisfied that UH has the capacity to sign an enduring power of guardianship based on her current inability to make reasonable judgments about her personal matters.
I am therefore satisfied that there is no less restrictive means available for personal decisions to be made for UH other than by the appointment of a guardian who has the clear legal authority to make decisions about matters such as medical treatment, accommodation, support arrangements and restrictive practices.
I next turn to explain how I decided who should be appointed as the guardian, what functions are required and how long the order should run before it is reviewed.
Question 3 – who, what and how long?
(3)(a) Who should be UH's guardian?
When considering the appointment of a guardian, the Tribunal must hold the opinion that the proposed guardian will act in the best interests of the person, is suitable to act as the guardian and is not in a position where their interests conflict or may conflict with UH's interests. The Tribunal must also be satisfied that the proposed guardian will be able to perform the functions vested in them.
The Tribunal is only able to appoint to the Public Advocate as guardian is there is no one willing or suitable to act. I am required to make findings about suitability on the basis that UH's daughter SS has proposed herself as UH's guardian. I find that SS is over the age of 18 years and has consented to act as the guardian.
Consideration of SS as guardian
SS described how her mother had lived with her on and off throughout her adult years. SS confirmed that her mother has a severe case of scoliosis. SS can remember that when she was a teenager and her mother's physical and mental health was good, her mother always had a lot of back pain caused by the scoliosis. SS did not mention the extreme sensitivity to pain that UH claims has been present since she was a child.
SS obviously cares very deeply about her mother and did not want to hurt her feelings or make her feel embarrassed about any of the difficulties that she is facing. SS stated that some of the issues that had been discussed in the Hearing were long-standing issues for UH. SS explained that when her mother's mental health is not good and when she is feeling low, she may make decisions that are not in her best interests, such as missing appointments or believing that she is more well than what she is.
I found SS to be genuine and caring, and she had a realistic and evidence-based understanding of UH's medical history. However, the reason that I have decided that SS is unsuitable to act as the guardian is because the Tribunal must consider the desirability of preserving the existing relationships within UH's family: s 44(2)(a) GA Act.
Although I am satisfied that SS can and would make sensible decisions for her mother in her best interests, I am concerned that the decisions made by SS may cause conflict in the relationship between her and UH.
There are mentions in the documents that from time to time, UH will tell the staff at the Care Home that she does not want information to be provided to SS. SS also mentioned that UH will sometimes not speak to her for long stretches of time.
This indicates that UH's mental health may cause her to pull away from her daughter, so if SS was appointed as her guardian, this could cause conflict or tension in the supportive relationship that UH has with her daughter if she knew that SS was involved in making decisions at a time where UH wanted distance or if SS had to make unwelcome decisions for her mother.
I am satisfied that the only option open to the Tribunal is to appoint the Public Advocate as UH's guardian to preserve the meaningful relationship between UH and SS.
(3)(b) What should the guardian's functions be?
Medical treatment
I am satisfied, and I find, that UH requires a limited guardian to make decisions and give informed consent to medical treatment and procedures. In addition to UH's ongoing avoidance of medical treatment, I am satisfied, and I find, that UH will make statements to her treating doctors that are not in keeping with reality.
While SS would having standing under s 110ZD of the GA Act to make medical treatment decisions as UH's daughter, I find is that it is essential that all health professionals that treat UH know:
(a)who has authority to make medical treatment decisions for her; and
(b)that the Tribunal has found that she lacks capacity in this domain.
It is also necessary that there is one person, the guardian, that is aware of UH's entire psychiatric history and physical health conditions and is able to provide accurate information and consent to treatment as required.
Accommodation
During the Hearing, UH said in relation to the Care Home:
… I love it here and I don't want to leave, but I was wanting to look around to make sure, what if there's somewhere better for me? Somewhere that offers more options for rehab and things like that, and I'm not aware of it … there could be places that might really make it so much simpler and easier for me. [ts 28, 25 June 2024]
However, during a presentation at ED in April 2023, UH accused the Care Home of abuse and said she had not eaten in three days. She also called the police in April 2024 to accuse the Care Home of abuse. UH has also threatened to contact the Mental Health Commission when her needs are not met.
UH has told the Manager over the last few years that she would like to live near the ocean and would prefer a residential facility that caters to residents with mental health conditions. However, UH has not taken any meaningful or active steps to arrange this.
In addition, UH has an unrealistic view of her health, as she believes that she will be able to move back into the community and live independently, which she has not been able to manage since 2009. She told me that she cannot get past the fact that in her mind, she is still well.
Based on the evidence before me, I find that UH is unable to make reasonable judgments about accommodation. She has not been able to find a more appropriate accommodation option that is better equipped to deal with her complex needs.
I find that there is a need for a guardian be appointed to make decisions about where UH will live.
Services
The occupational therapist Ms W says UH would like to engage a social worker to figure out what her options are, but she has not proceeded with this. She has been referred to multiple mental health specialist services by the Care Home however they have not been able to agree on a plan that UH would accept to achieve an improved outcome.
As UH lacks insight into her mental health conditions and how they impact on her and others, a guardian with a services function can assist with making decisions and giving consent to the engagement of services once appropriate and specific support services able to meet UH's complex needs have been sourced.
Aged care restrictive practices and 'restraint in other settings'
If UH continues to live in aged care, she may require, for example, an environmental or mechanical restrictive practice from time to time to ensure her safety.
Due to the complexity of UH's psychiatric and physical care needs, it is possible that her treating doctors may need to implement further restraints, after all less restrictive alternatives have been tried, to ensure that UH is provided with the medical attention she requires.
I will therefore include these two restraint functions on the order.
Authorisation to Public Advocate to provide documents to others
As UH is prone to fabricating or misinterpreting medical information, I find that it is in her best interests that her guardian is authorised to provide medical and other information and documents to organisations or agencies that have contact with or provide services to UH. I will include an authorisation that will allow UH's guardian to do that.
Conclusion on the functions required
I am therefore satisfied that there is a need for a guardian appointed by the Tribunal to be able to make decisions about medical treatment, accommodation, services, aged care restrictive practices and restraint in other settings, and to be authorised to provide information about UH to other parties as required.
(3)(c) How long should the order run for before it must be reviewed?
When making orders, the Tribunal is required to fix a period for the review of the order. Given the persistent and complex nature of UH's psychiatric illnesses, which the psychogeriatrician describes as progressively getting worse, I will make the order reviewable in five years because there does appear on the evidence to be a continuing need for UH to have a substitute decision-maker, noting that UH's evidence is that she has been experiencing problems with not being able to walk off and on for the last 20 years.
Therefore, these orders are to be reviewed within the maximum term possible which is within five years of the date of the orders.
Orders
The Tribunal declares that the represented person, [UH] 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; e
(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:
Administration
1.The administration application is dismissed.
Guardianship
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 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 make treatment decisions for the represented person, subject to Division 3 of Part 5 of the Guardianship and Administration Act 1990 (WA);
(d)to determine the services to which the represented person should have access;
(e)to decide whether to give or withhold consent to the use of any restrictive practice for the represented person proposed from time to time in compliance with Part 4A of the Quality of Care Principles 2014 made pursuant to the Aged Care Act 1997 (Cth).
(f)to decide whether to give or withhold consent to the use of restraint to give effect to a decision of the guardian made pursuant to these orders and in the interest of the represented person's health and safety, on the following basis:
(i)where restraint is proposed, a medical plan must be developed setting out the purpose and circumstances under which restraint is to be used. The plan must be approved by a medical practitioner and, if it remains in place, be regularly reviewed; and
(ii)a decision to use restraints should be made only after all reasonably available less restrictive alternatives have been considered and found not to be successful.
3.The Public Advocate is authorised in exercise of these functions or in related matters or when making any representations or enquiries to government departments or health or welfare agencies or other organisations to provide medical or other information and documents held by her office as she considers necessary to the third parties to advance the best interests of the represented person.
4.The Public Advocate is authorised to provide any medical or allied health professionals reports to any medical or other health professional providing services to the represented person.
5.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.
6.The guardianship order is to be reviewed by 2 August 2029.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS R BUNNEY, MEMBER
9 AUGUST 2024
0
0
1