VJE
[2005] WASAT 15
•28/02/2005
VJE [2005] WASAT 15
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2005] WASAT 15 | |
| 28/02/2005 | |||
| GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) | |||
| Case No: | SAT:210/2004 | 1 OCTOBER 2004 | |
| Coram: | DR G HAMILTON (SENIOR SESSIONAL MEMBER) MR E LEIPOLDT (SENIOR SESSIONAL MEMBER) REV L GOODE | 24/02/05 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Application for Guardianship dismissed | ||
| B | |||
| PDF Version |
| Parties: | VJE |
Catchwords: | Guardianship and Administration Guardianship Stroke Swallowing difficulties Appropriate foods and drink |
Legislation: | Guardianship and Administration Act 1990 (WA), s 43 |
Case References: | Nil Nil |
Summary | The proposed represented person, VJE, was the subject of an application for guardianship by YS, "Acting Facility Manager" at the nursing home, Regent Gardens, where VJE resides. The applicant also sought leave to apply, which was granted.,VJE, 83, has a cognitive impairment as a result of a stroke and is unable to communicate. WE, VJE's son, had signed an "acknowledgement of risk" document, as a condition imposed by the nursing home so as to be allowed to take his mother to his home on leave. Through this agreement WE acknowledged that his mother required thickened fluids and pureed foods. The applicant alleged that nevertheless WE fed his mother solid foods and unthickened drinks while on leave at her son's residence. Because of VJE's swallowing difficulties the applicant held concerns for her safety under these circumstances. In her opinion a guardian was required to "make a decision, a considered decision, as to whether it is safe for VJE to go home with WE on weekend [sic]." ,WE is not able to visit his mother at the nursing home as there is a "trespass order" in place that prevents him from doing so. This order had been implemented because of WE's past threatening behaviour towards staff. As a result WE had not visited the nursing home since 29 June 2004. Any communication between the nursing home and WE was now by e-mail, an arrangement that all parties, including the applicant, considered to be working well. ,WE denied the allegations of feeding his mother inappropriate food or drink and saw no need for a guardian. His sister JT likewise held no concerns for her mother's safety under the current arrangements.,LJ, for OPA, stated that over the last three months there had been no concerns with regard to food and drink administered by WE and that there was no need for the appointment of a guardian.,The applicant herself, YS, stated at the hearing that she could "confirm … quite categorically … (that of recent times) we have had no concerns at all with VJE's health.",With his sister JT, WE had been joint plenary administrator of VJE's estate since 17 July 1998. On that same date the Public Advocate had been appointed as limited guardian, with the powers to decide where the represented person is to live, whether permanently or temporarily; to decide with whom the represented person is to live; subject to Div 3, Pt 5 of the Guardianship and Administration Act 1990 (WA), to consent to any treatment or health care of the represented person; to determine what contact, if any, the represented person should have with others and the extent of that contact; to determine matters in relation to care management. This order was revoked on 7 October 2003.,The issues before this Board were: whether VJE was capable of making her own decisions with regard to her own health and safety; whether there was a need for a guardian; and if so, who the guardian should be.,The Board considered that there is currently no need for a guardianship order. The application is not, however, considered inappropriate, especially under enduring circumstances of difficult communication with WE. Also, the Board understands the nursing home management's need to be satisfied that all possible safeguards are explored in this matter. The concerns raised in the application are potentially serious but the Board believes that presently there is no evidence of any risk under the current circumstances. There are no parties, including the applicant, who currently hold concerns. WE's commitment to his mother is unquestionable and he appears to be well aware of his mother's needs with regard to appropriate food and drink. He has undertaken to be responsible in this regard. Should any concerns resurface, then the Board is confident that parties who are concerned with VJE's welfare will again apply to the Board. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : HUMAN RIGHTS ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : VJE [2005] WASAT 15 MEMBER : DR G HAMILTON (SENIOR SESSIONAL MEMBER)
- MR E LEIPOLDT (SENIOR SESSIONAL MEMBER)
REV L GOODE
- Applicant
Catchwords:
Guardianship and Administration - Guardianship - Stroke - Swallowing difficulties - Appropriate foods and drink
Legislation:
Guardianship and Administration Act 1990 (WA), s 43
Result:
Application for Guardianship dismissed
(Page 2)
Category: B
Representation:
Counsel:
Applicant : Self Represented
Solicitors:
Applicant : Self Represented
Case(s) referred to in decision(s):
Nil
Case(s) also cited:
Nil
(Page 3)
- DR G HAMILTON (SENIOR SESSIONAL MEMBER), MR E LEIPOLDT (SENIOR SESSIONAL MEMBER), REV L GOODE:
REASONS FOR DECISION
Background
1 The proposed represented person, VJE, was the subject of an application for guardianship byYS, "Acting Facility Manager" at the nursing home, Regent Gardens, where VJE resides. The applicant also sought leave to apply, which was granted.
2 VJE, 83, has a cognitive impairment as a result of a stroke and is unable to communicate. WE, VJE's son, had signed an "acknowledgement of risk" document, as a condition imposed by the nursing home so as to be allowed to take his mother to his home on leave. Through this agreement WE acknowledged that his mother required thickened fluids and pureed foods. The applicant alleged that nevertheless WE fed his mother solid foods and unthickened drinks while on leave at her son's residence. Because of VJE's swallowing difficulties the applicant held concerns for her safety under these circumstances. In her opinion a guardian was required to "make a decision, a considered decision, as to whether it is safe for VJE to go home with WE on weekend [sic]."
3 WE is not able to visit his mother at the nursing home as there is a "trespass order" in place that prevents him from doing so. This order had been implemented because of WE's past threatening behaviour towards staff. As a result WE had not visited the nursing home since 29 June 2004. Any communication between the nursing home and WE was now by e-mail, an arrangement that all parties, including the applicant, considered to be working well.
4 WE denied the allegations of feeding his mother inappropriate food or drink and saw no need for a guardian. His sister JT likewise held no concerns for her mother's safety under the current arrangements.
5 LJ, for OPA, stated that over the last three months there had been no concerns with regard to food and drink administered by WE and that there was no need for the appointment of a guardian.
(Page 4)
6 The applicant herself, YS, stated at the hearing that she could "confirm … quite categorically … (that of recent times) we have had no concerns at all with VJE's health."
7 With his sister JT,WE had been joint plenary administrator of VJE's estate since 17 July 1998. On that same date the Public Advocate had been appointed as limited guardian, with the powers to decide where the represented person is to live, whether permanently or temporarily; to decide with whom the represented person is to live; subject to Div 3, Pt 5 of the Guardianship and Administration Act 1990 (WA), to consent to any treatment or health care of the represented person; to determine what contact, if any, the represented person should have with others and the extent of that contact; to determine matters in relation to care management. This order was revoked on 7 October 2003.
8 The issues before this Board were: whether VJE was capable of making her own decisions with regard to her own health and safety; whether there was a need for a guardian; and if so, who the guardian should be.
9 Present at this hearing were, by telephone: the applicant YS; the proposed represented person's son WE. In person attended: LJ, representative from the Office of the Public Advocate (OPA); JT, WE's sister.
10 VJE's attendance was waived. Her severe expressive aphasia would prevent the expression of her wishes. Ms YS, in her Primary Carer report of 31 August 2004, stated: VJE's "mental state is such that she is totally aphasic and therefore unable to converse or communicate."
Capacity
11 On hearing any guardianship order the Board must be satisfied that the requirements in s 43 of the Guardianship and Administration Act 1990 (WA) (“the Act”) apply. The Board must be satisfied on the evidence that the represented person is incapable within the terms of s 43(1)(b) and that there is a continuing need for an order under s 43(1)(c) and that no less restrictive alternatives are available.
12 Section 43(1) of the Act provides that a guardian may be appointed where the Board is satisfied that the person the subject of the application:
" …
- (a) has attained the age of 18 years;
(Page 5)
- (b) is –
(i) incapable of looking after his own health and safety;
(ii) unable to make reasonable judgments in respect of maters relating to his person; or
(iii) in need of oversight, care or control in the interests of his own health and safety or for the protection of others;
and
Evidence
13 The Board relied on the following information in relation to VJE's capacity to make decisions about her health and safety.
14 Dr Cullen, in his report, stated that VJE has impaired cognitive ability as a result of a stroke and that she is unable to communicate.
15 YS, in her report, confirms that VJE is "totally aphasic" and is unable to communicate. Further, she stated that VJE "is totally dependent on the staff for all care and attention on a daily basis;"
16 Dr Hankey, in his report of 6 July 2001 had described VJE's diagnosis as having a cognitive impairment since 1998, attended by dysphasia. He thought her situation was "static" and "unlikely to change" or "may get worse." He was not sure at the time whether she could make reasonable decisions in relation to personal health care or her living situation and thought she was "aware of her personal health state." However she could not then "communicate verbally or written [sic];"
17 VA, Clinical Nurse in the nursing home where VJE resides previously, stated in her Primary Carer report of 28 June 2001 that VJE "is aphasic and unable to make her needs and wishes known without help".
18 LJ, of the OPA, accepted that VJE had a cognitive disability as a result of a stroke and that she was unable to communicate. She advocated that VJE was someone for whom a guardianship order could be made.
Findings
19 Upon this evidence the Board is satisfied that s 43(1)(a) and (b) are met and that VJE is a person for whom a guardianship order could be made.
(Page 6)
Need
20 The Board can only make an order if the needs of the person in respect of whom an application is made could not, in the opinion of the Board be met by other means less restrictive of the person's freedom of decision and action.
Evidence
21 The evidence as to the question of need is as follows:
22 The applicant said that she had applied out of concern that VJE "would be in safe hands with [WE] in respect to her eating and drinking" because of three incidents that had been documented. In her application she had also stated that the Department of Health and Ageing and the organisation Advocare had expressed major concerns with WE having his mother at home for weekends and feeding her in unsupervised circumstances.
23 These incidents occurred on 25 October 2003; 31 October 2003; 9 December 2003; and 7 June 2004. The first allegedly involved WE feeding his mother "raw diced orange upon which she vomited and developed aspiration pneumonia and had to be hospitalised." The second allegedly involved WE being observed "giving his mother fluids which were not thickened." On that occasion WE agreed with staff that the fluids had not been thickened and said that he would. The third incident allegedly involved WE being observed feeding his mother "cut-up banana, which was not vitamised, just cut up." The fourth incident allegedly involved WE feeding his mother "red jelly, which she then had a large vomit [sic] and was quite unwell that evening with a temperature." On the 9 June the nursing home consulted a doctor. "She had some basal creps. He queried an upper respiratory tract infection and commenced her on antibiotics." She was not hospitalised on that occasion.
24 Since those incidents WE had signed an "acknowledgment of risk". This document was dated 20 August 2004. It stated:
"I acknowledge that my mother has a previously assessed swallowing deficit. She requires a lump-free pureed diet and level-3 thickened fluids. I acknowledge that in the event of any health care status related concerns with my mother, while she is in my care, I will phone a hospital and/or call 000 for an ambulance."
25 YS stated that since then:
(Page 7)
- "we've only had one occasion when a staff member was concerned when she returned, where it was observed that she still had some carrot in her mouth, however that is the only occasion since Walter has been taking her home and he has signed the acknowledgment of risk … "
26 WE denied that he ever fed his mother cut up orange, he fed his mother thickened fluids and the banana he gave her was mashed up. He contended that he was feeding his mother correctly. He blended her food and gave her thickened fluids. He thought that the fragment of carrot had come from grated carrot in soup. He saw no need for a guardian to be appointed and was opposed to such appointment.
27 VJE's daughter, JT, had observed her brother feeding his mother appropriately mashed and thickened food and fluids and had no problem with her brother's care of his mother in this, or any other respect. She stated that her brother "takes very good care of her. He puts her above himself, quite often to his own detriment … [and] he's very patient with her." AT saw no need for a guardian as she saw no risk in the care that her brother was providing to her mother.
28 LJ, advocate from the Office of the Public Advocate stated that she did not hold a concern for VJE's wellbeing because of any inappropriate care by WE. Her enquiries with the Department of Health and Ageing and with Advocare revealed that neither had any direct information to cause them any concern. There had been the one alleged incident with a piece of carrot in VJE's mouth but she had been unable to clarify with the applicant whether it had been pureed or mashed. LJ stated that:
"the important thing … is that there doesn't appear to have been any - there's been no health concerns for her since she's been going home and having the contact [at the son's home]."
- She advocated that the application be dismissed for lack of any need.
29 YS confirmed that over the last three months that WE had been having his mother at home on weekends that there hade not been any health incidents at all related to these food issues. She said:
"I can confirm that quite categorically. We have had no concerns at all with VJE's health and I did relay that to LJ."
(Page 8)
Findings
30 Having considered all of the evidence in this matter, the Board is satisfied that there is a no need for the Board to make a guardianship order for VJE.
31 Whereas some incidences did occur before 27 June 2004, the date from which WE was prohibited from entering the nursing home, all, including the applicant, agreed that there have been no incidences of concern since then, a period of some 3 months at the time of the hearing. OPA had satisfied itself that the Department of Health and Ageing and Advocare held no concerns.
Conclusion
32 The Board considered that there is currently no need for a guardianship order. The application is not, however, considered inappropriate, especially under enduring circumstances of difficult communication with WE. Also, the Board understands the nursing home management's need to be satisfied that all possible safeguards are explored in this matter. The concerns raised in the application are potentially serious but the Board believes that presently there is no evidence of any risk under the current circumstances. There are no parties, including the applicant, who currently hold concerns. WE's commitment to his mother is unquestionable and he appears to be well aware of his mother's needs with regard to appropriate food and drink. He has undertaken to be responsible in this regard. Should any concerns resurface, then the Board is confident that parties who are concerned with VJE's welfare will again apply to the Board.
33 Therefore the Board orders that YS's application for guardianship is dismissed.
I CERTIFY that this and the preceding eight pages comprise the reasons for decision of the members who heard this matter.
Mr E Leipoldt
Presiding member
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