WR and HR
[2014] WASAT 107
•27 AUGUST 2014
WR and HR [2014] WASAT 107
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2014] WASAT 107 | |
| GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) | |||
| Case No: | GAA:371/2014 | 20 MARCH AND 8 MAY 2014 | |
| Coram: | MS L EDDY (MEMBER) DR D STEPNIAK (SENIOR SESSIONAL MEMBER) DR R CLARNETTE (SENIOR SESSIONAL MEMBER) | 27/08/14 | |
| 18 | Judgment Part: | 1 of 1 | |
| Result: | Unsuccessful | ||
| B | |||
| PDF Version |
| Parties: | WR HR |
Catchwords: | Guardianship Review of guardianship order Suitability of person to be appointed as guardian Public Advocate guardian of last resort Turns on own facts |
Legislation: | Guardianship and Administration Act 1990 (WA), s 4, s 17A, s 44, s 44(5), s 84, s 86, s 87, s 90, s 90(2), s 110ZD, Pt 5, Pt 6 State Administrative Tribunal Act 2004 (WA) |
Case References: | GC and PC [2014] WASAT 10 MD [2012] WASAT 145 TR [2009] WASAT 157 |
Summary | The application by WR for review of a guardianship order appointing the Public Advocate as the guardian for WR's mother was not successful. The questions of capacity and the need for an order were not in dispute. The main focus on the review was the question of who should be appointed guardian. WR was the only person who put himself forward for the role of guardian of his mother. The Tribunal determined on the evidence before it that WR was not suitable to be appointed as his mother's guardian because it was not satisfied that WR could effectively perform the role of guardian. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : HUMAN RIGHTS ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : WR and HR [2014] WASAT 107 MEMBER : MS L EDDY (MEMBER)
- DR D STEPNIAK (SENIOR SESSIONAL MEMBER)
DR R CLARNETTE (SENIOR SESSIONAL MEMBER)
- Applicant
AND
HR
Represented Person
Catchwords:
Guardianship Review of guardianship order Suitability of person to be appointed as guardian Public Advocate guardian of last resort Turns on own facts
Legislation:
Guardianship and Administration Act 1990 (WA), s 4, s 17A, s 44, s 44(5), s 84, s 86, s 87, s 90, s 90(2), s 110ZD, Pt 5, Pt 6
State Administrative Tribunal Act 2004 (WA)
Result:
Unsuccessful
Summary of Tribunal's decision:
The application by WR for review of a guardianship order appointing the Public Advocate as the guardian for WR's mother was not successful. The questions of capacity and the need for an order were not in dispute. The main focus on the review was the question of who should be appointed guardian. WR was the only person who put himself forward for the role of guardian of his mother. The Tribunal determined on the evidence before it that WR was not suitable to be appointed as his mother's guardian because it was not satisfied that WR could effectively perform the role of guardian.
Category: B
Representation:
Counsel:
Applicant : N/A
Represented Person : N/A
Solicitors:
Applicant : N/A
Represented Person : N/A
Case(s) referred to in decision(s):
GC and PC [2014] WASAT 10
MD [2012] WASAT 145
TR [2009] WASAT 157
Introduction
1 In October 2013 the applicant, WR, applied for leave to review a guardianship order dated 5 September 2012 (guardianship order) under s 87 of the Guardianship and Administration Act 1990 (GA Act). That Guardianship Order was an order appointing the Public Advocate as limited guardian of his mother, HR. HR is an elderly woman who suffered a significant stroke, which significantly impaired HR, in early 2011. HR has two children, her son,WR, and a daughter, MS. Following HR's stroke, there has been a history of a number of applications under the GA Act in relation to HR, and it is relevant to outline that history.
1) An application for an order appointing a guardian for HR was first made by a hospital employee in June 2011. As a result of that application, by order dated 30 June 2011, the Public Advocate was appointed as limited guardian with the functions of deciding where HR should live and the services to which HR should have access.
2) WR appealed against that decision under s 17A of the GA Act. The appeal was heard by Deputy President, Judge Parry, Senior Member Taylor and Senior Sessional Member Garton on 14 September 2011. The Tribunal determined that the guardianship order made on 30 June 2011 should be confirmed.
3) An application for an order appointing an administrator for the estate of HR was made by an employee of a residential care facility in May 2012. By order dated 9 July 2012, the Public Trustee was appointed as the plenary administrator of HR's estate.
4) In August 2012 WR appealed against the decision to appoint the Public Trustee as administrator. The appeal was heard by Deputy President, Judge Sharp, Senior Member Taylor and Member Wallace on 5 September 2012. The Tribunal also had before it a statutory review, under s 84 of the GA Act, of the guardianship order made on 30 June 2011. The Tribunal determined that the administration order made on 9 July 2012 should be confirmed. The guardianship order was also confirmed and the Public Advocate was given, in addition the functions specified in the earlier order, the authority to make treatment decisions for HR and to determine what contact HR should have with others (this is the guardianship order the subject of the current proceedings).
5) In April 2013, the Public Trustee applied for a review of the administration order under s 86 of the GA Act. By order dated 19 June 2013, a single member of the Tribunal amended the administration order so as to include authority for the Public Trustee to gift HR's motor vehicle to WR.
6) Later that same day, WR lodged an application for review under s 86 of the GA Act of both the administration and the guardianship orders. The Tribunal treated that application as two separate applications; one application being an appeal under s 17A of the GA Act against the administration order made on 19 June 2013 are the other application being an application for leave to review, pursuant to s 87 of the GA Act, the guardianship order. By order dated 26 July 2013, a single member of the Tribunal refused leave to apply for review of the guardianship order. At the hearing of the appeal against the administration order before Deputy President, Judge Parry, Senior Sessional Member Hankey and Sessional Member Kemp on 2 September 2013, WR was granted leave to withdraw his appeal.
2 On 20 January 2014, after a hearing to determine the question of whether WR should be given leave to apply for review of the guardianship order, WR was given leave to apply for review of the guardianship order. That application for review was heard before a three member panel of the Tribunal on 20 March and 8 May 2014. At the conclusion of the hearing, the Tribunal determined that the guardianship order should be confirmed, and made final orders in accordance with that determination. After making those orders, the Tribunal stated that the reasons for decision would be published. These are those reasons for decision.
Issues
3 The powers of the Tribunal on a review of a guardianship order are specified in s 90 of the GA Act, which states that:
(1) Upon a review of a guardianship order or administration order, the State Administrative Tribunal may, as it considers necessary in the best interests of the represented person, confirm the order or by order
(a) amend the order so as to make any provision that may be included in a guardianship order or administration order, as the case may be;
(b) revoke the order, or revoke the order and substitute another order for it; or
(c) without limiting paragraphs (a) and (b)
(i) revoke the appointment of any guardian or administrator;
(ii) appoint a new or additional guardian or administrator;
(iii) appoint an alternate guardian.
4 As can be seen, s 90(2) of the GA Act provides that a review of a guardianship order is in the Tribunal's original jurisdiction. In deciding whether to confirm, or alternatively, to amend or revoke a guardianship order, regard must be had to the provisions in Pt 5 and Pt 6 of the GA Act with respect to the making of guardianship orders. The principles stated in s 4 of the GA Act must be observed by the Tribunal in dealing with proceedings commenced under the GA Act. A review of a guardianship order is a proceeding commenced under the GA Act. It follows from this context that the hearing of a review of a guardianship order is a hearing de novo, looking afresh at the question of whether a guardianship order can or should be made in the particular circumstances that exist at the time of the review hearing. This has been the approach that the Tribunal has consistently taken in the past: see TR [2009] WASAT 157 at [7] and MD [2012] WASAT 145.
5 The issues to be determined in this review application are therefore:
1) Whether HR is a person for whom a guardianship order can be made (capacity)
2) Whether there is a need for a guardianship order.
6 When considering whether there is a need for a guardianship order, the Tribunal must keep in mind s 4(4) of the GA Act, which provides:
A guardianship or administration order shall not be made if the needs of the person in respect of whom an application for such an order is made could, in the opinion of the State Administrative Tribunal, be met by other means less restrictive of the person’s freedom of decision and action.
7 If the above questions are answered in the affirmative, the following further issues arise:
3) Whether any order should be plenary or limited, what functions should be conferred, and what directions or conditions, if any, should be made.
4) Who should be appointed as guardian.
5) The period for which any order should be made (this is the date by which the order must be reviewed by the Tribunal).
8 When considering the issue of whether any order should be plenary or limited, regard must be had to the statutory requirement in s 4(5) of the GA Act that essentially provides that a plenary guardian must not be appointed if the appointment of a limited guardian would be sufficient. In addition, any order appointing a limited guardian must be in terms that impose the least restrictions possible in the circumstances on the person's freedom of decision and action (s 4(6) of the GA Act).
9 In determining the application as a whole, including each of the above issues, the Tribunal is required to have HR's best interests as its primary concern (s 4(2) of the GA Act). In addition, it is necessary, where possible, to ascertain the views and wishes of HR in relation to the matters raised by this application (s 4(7) of the GA Act).
Capacity
10 The starting point for determining whether a guardianship order should be made is the fundamental, but rebuttable, presumption of capacity found in s 4(3) of the GA Act. That subsection relevantly provides:
Every person shall be presumed to be capable of
(a) looking after his own health and safety;
(b) making reasonable judgments in respect of matters relating to his person;
…
until the contrary is proved to the satisfaction of the State Administrative Tribunal.
11 In accordance with what is commonly referred to as the 'Briginshaw' principle, the nature of the evidence required to reach satisfaction that the presumption of capacity is rebutted is affected by the seriousness of the potential consequences of such a finding. As stated in GC and PC [2014] WASAT 10 at [36]:
Because of the significant consequences for an individual of having their decision-making capacity removed from them and a substitute decisionmaker appointed for them under the GA Act, clear and cogent evidence is required to rebut the statutory presumption of capacity.
12 There is consistent and uncontested evidence before the Tribunal that HR suffered a stroke in 2011 which left her largely immobile, unable to talk and fully dependent on 24 hour care for all of her needs. In a Doctor's Guide dated 16 May 2011, Dr S, a general practitioner, reported that HR had suffered a left (middle cerebral artery) cerebrovascular accident and had had a previous history of dementia. The evidence of HS, a nurse employed at the facility where HR lives, was that while it is possible to know through HR's body language if HR is distressed or uncomfortable, there is 'really no response' from her (T:35; 08.05.14). WR is of the opinion that HR can communicate nonverbally with him, to some extent, by means of making nonverbal communication including squeezing his hands and by making small sounds. To the extent that the evidence of HS and WR differs on the point, the Tribunal prefers the evidence of HS in relation to HR's ability to communicate. WR agreed at the commencement of the hearing in March 2014 that HR was not able to make reasonable decisions for herself and was not able to look after her own health and safety (T:2; 20.03.14).
13 The Tribunal is satisfied that the presumption of capacity has been rebutted in this case. It has been proved to the satisfaction of the Tribunal that HR is unable to make reasonable decisions in relation to personal matters. This is because, whatever ability HR has to reason, she cannot effectively communicate to others what her views and wishes may be. The Tribunal is also satisfied that HR is unable to care for her own health and safety and is in need of oversight, care or control.
Need
14 There is disagreement between WR and his sister, MS, as to where HR should be cared for. The Tribunal was informed that MS prefers her mother to be cared for in a hospital or care facility rather than by WR in the community (T:24; 20.03.14). WR has been consistent and clear in his view that he wishes to care for HR himself, with the help of qualified staff, in the community. The current guardian, the Public Advocate's delegate, does not oppose WR's wish; however, says that to date WR has never provided a sufficiently detailed plan that would allow the Public Advocate to be satisfied that HR could be appropriately cared for by WR in the community and that sufficient funds were available to support that option (T:34-35; 08.05.14).
15 There has never been any enduring power of guardianship in place. The appropriateness of informal mechanisms of personal decisionmaking for HR by WR is significantly affected by the longstanding history of conflict between WR and staff members involved in providing care for HR. MS has no such history of conflict with staff members involved in providing care for HR. However, given WR's strong views about HR's accommodation and care, and the amount of time he does, and would want to, spend at HR's bedside, and MS's different views about where HR should live, any informal decisionmaking attempted by MS is not likely to be effective in meeting HR's personal decisionmaking needs.
16 The Tribunal is satisfied that informal arrangements for personal decisionmaking (including the authority provided by s 110ZD of the GA Act for a responsible person to make treatment decisions) are unsuitable at this point in time and would not be in HR's best interests. There is a need for there to be clarity about who has personal decision making authority for HR. The Tribunal is satisfied that there is a need for a guardian to make personal decisions for HR.
Functions
17 The guardianship order under review gives the current guardian 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 determine the services to which the represented person should have access;
(d) Subject to Division 3 of Part 5 of the Guardianship and Administration Act 1990, to make treatment decisions for the represented person; and
(e) To determine what contact, if any, the represented person should have with others and the extent of that contact.
18 WR did not raise any issue with the functions specified in paragraphs (a) - (d) of that order. The Tribunal is satisfied that, given HR's immobility and inability to effectively communicate anything other than basic needs to staff caring for her, and given the continued difference of view about HR's accommodation and services, these functions are still required in HR's best interests.
19 The Tribunal was informed that the need for the guardian to have the function of determining contact with HR was because of conflict between WR and staff, or some of the staff, at the residential care facility where HR was living (the Facility), and the view put forward on behalf of the Facility that the staff could not sufficiently provide necessary care for HR with WR's continual presence at HR's bedside. On the evidence before the Tribunal, we are satisfied that there still exists considerable conflict, and the potential for further conflict, between WR and members of the staff at the Facility. There is also a history of differences of opinion, and, the Tribunal finds, the real likelihood of continued differences of opinion between WR and various health professionals about treatment decisions for HR. It is also clear that WR wishes to spend more time at HR's bedside and also wishes to have full control and oversight of all care given to HR (T:26, 31, 36; 08.05.14 and T:26-27; 20.03.14). In that context, it is still necessary, in HR's best interests, for a guardian to have decisionmaking authority in relation to what contact HR has with others, and the extent of that contact.
Who should be appointed as guardian
20 This is the issue that has been the focus of much of the hearing on this review. Currently, the Public Advocate is the guardian of HR. WR says that he is willing and able to take on this role and that he should be appointed as HR's guardian. There is no other person who has indicated that they would be willing to take on the role of guardian of HR. In relation to who should be appointed guardian, s 44 of the GA Act provides:
(1) A guardian (including a joint guardian) shall be an individual of or over the age of 18 years who has consented to act and who in the opinion of the State Administrative Tribunal
(a) will act in the best interests of the person in respect of whom the application is made;
(b) is not in a position where his interests conflict or may conflict with the interests of that person; and
(c) is otherwise suitable to act as the guardian of that person.
(2) For the purposes of subsection (1)(c) the State Administrative Tribunal shall take into account as far as is possible
(a) the desirability of preserving existing relationships within the family of the person in respect of whom the application is made;
(b) the compatibility of the proposed appointee with that person and with the administrator (if any) of that person's estate;
(c) the wishes of the person in respect of whom the application is made; and
(d) whether the proposed appointee will be able to perform the functions vested in him.
…
(5) Except where he is appointed to act jointly with another person or other persons, the State Administrative Tribunal shall not appoint the Public Advocate as a guardian unless there is no other person who is suitable and willing to act.
21 The Tribunal is not able to directly ascertain the wishes of HR in relation who she would want as a guardian to make personal decisions for her. WR says that he and HR were very close; they 'relate to the same things. We've always played sport together, or done our things together' (T:36; 08.05.14). WR says that he knows what HR wants and that she:
is only continuing on just for [WR] because she knows [he wants] to get her out, get her out of there … what mum needs is just me holding her hand, reading her a book, listening to a bit of My Fair Lady, not what they're offering. … Mum wants the best, even though she wouldn't ask for it. She would take nothing, but that's what I want her to have, and she deserves the best (T: 35; 08.05.14).
- In relation to medical treatment decisions, and making palliative care decisions, WR said that
basically, the bottom line is we're family, my mother and I, and I basically feel that there should be no question that if any decisions are made about with regards to right of life. I don't want mum in any pain but I certainly just don't want her killed because somebody feels its time. (T:31; 20.03.14).
23 In this case, given that no other person has put themselves forward as willing to take on the role, if WR is suitable to act as HR's guardian, he must be appointed (s 44(5) of the GA Act).
WR's plans to care for HR in the community
24 WR says that HR should be cared for according to the care plan developed by the Facility for her. However, he says, the staff at the Facility do not adequately provide the care specified in the care plan. For this reason, WR would decide, if he were guardian, to care for HR in the community. While it is not necessarily the role of the Tribunal to assess whether a particular proposed decision by a guardian is in the represented person's best interests, in this case, because WR is so fixed in his view as to what type of care is in HR's best interests, it has been necessary to consider this in determining his suitability to be appointed HR's guardian.
25 Prior to the hearing, WR provided estimates from two reputable agencies that provide private nursing services. A home nursing care program (dated March 2014) developed by one agency at the request of WR stated that a combination of unlicensed health care workers and periodic attendance by a registered nurse would be required, with the option of nights being covered by a sleep over shift or, alternatively, a fully active night shift. Estimates for providing this care were approximately $8,000 to $10,000 per week depending on the night shift alternative chosen. The program also specified a list of equipment that would need to be provided. WR provided the Tribunal with price lists for the hire or purchase of some of the specified equipment. The second proposal indicated similar needs and costs.
26 Later in the hearing, WR stated that he had that day been speaking to another agency, and based on that telephone conversation, he was of the view that he would be able to reduce costs by himself providing most of HR's care needs on a 24 hour seven days a week basis supplemented by a number of short visits throughout the day by a single agency staff member (T:27; 08.05.14).
27 In relation to where WR planned to care for HR, the Tribunal found WR to have only undertaken minimal planning or preparation. WR advised the Tribunal that he had approached a real estate agent for ground floor, three or four bedroom properties in the localities of Ardross, Applecross or Attadale. WR presented to the Tribunal a copy of a facsimile from a real estate agent attaching flyers for three such properties. It was concerning to the Tribunal that, in the context of housing a person as dependent and vulnerable as HR, nothing was said to the Tribunal about how sufficient certainty or security of the proposed accommodation arrangement could be obtained in what seemed to be a normal residential lease scenario. WR was not able to tell the Tribunal about whether there were any special physical requirements for an appropriate residence in which to provide care to HR in circumstances where specialised medical equipment is required in order to mobilise HR. For example, WR could not tell the Tribunal whether any of the equipment required for HR's care necessitated wider than normal doorways, or any specific room diameter for its safe operation.
28 When asked about arrangements for the provision of medical assistance for HR, WR indicated that he was aware that some agencies had locum doctors who might come on a house call. He also said that 'I have a friend who I used to play bowls with that was a doctor, and I will contact him to see if there are any other avenues. I mean you generally come across people that might be able to add that little bit extra assistance' (T: 16; 20.03.14). He thought that accessing a doctor's medical rooms would not be possible and said that 'we would have to go to sort of a larger area, perhaps even a I don't know if how the triage or anything like that go to Royal Perth but somewhere where there would be a bigger room with easier access for mum' (T: 16-17; 20.03.14). The Tribunal finds that this vague and poorly though out proposal is insufficient to address HR's potential medical needs if cared for in the community.
29 Having regard to the cost estimates provided by WR for healthcare staff, and bearing in mind that there would be additional expenses by way of equipment, rent, bills, food, etc., it is clear that any plan to care for HR in the community would involve considerable expense. While HR does currently pay reasonably high fees in order to stay at the Facility, those fees are much less than the likely cost of providing care for her in the community. HR does not have an overly large estate and her administrator has advised the Public Advocate that incurring such costs would mean that HR would run through her savings very quickly, leaving her with no funds to provide for her continued care. For this reason, the administrator has stated that it would not agree to pay for the cost of providing care for HR in the community. WR advised the Tribunal that he would use his own money to pay for HR's care because, in his view, her better quality of life while living in the community rather than in a residential care facility would be so much greater that it would be worth it, even if HR had to return to a residential care facility eventually when the funds ran out. While WR's offer to use his own money to pay for the cost of providing care for his mother in the community is laudable, he does not have any significant amount of cash available to him at the present time. His plans for funding the care are based on a plan to sell one or two vintage cars that he owns (at the hearing of the leave application WR referred to two cars but at the hearings before the Tribunal as currently constituted he referred to only one car) as well as a property in Northam; that he owns and currently rents out. WR estimates that he could raise approximately $600,000. At the hearing WR speculated that he could obtain a mortgage on his property in Northam, however he had taken no steps to ascertain whether he would in fact be approved for any such mortgage. WR has not progressed with these plans in any concrete way.
30 Despite encouragement from the Tribunal to develop a suitable proposal to support his submission as to the type of care that would be in HR's best interests, WR has not put forward a sufficiently detailed proposal that would allow proper assessment of whether his proposal to care for HR in the community is appropriate and in HR's best interests. The delegate guardian said that the Public Advocate was not opposed to the idea of HR being cared for in the community, but WR has never presented a sufficiently detailed plan for the Public Advocate to be satisfied that HR's needs could be met under such an arrangement (T:34; 08.05.14). In light of how important, even critical, this issue is to WR, the Tribunal infers that WR has put in his best efforts in relation to putting together and presenting the details of his proposal, a task he was assisted with by legal counsel at least at the hearing on 20 March 2014. WR has to date not shown himself to be capable of planning and organising the detail of what is, on the face of it, a difficult task, that is, to create an environment and resources suitable to meet HR's care and safety needs in a place other than a residential care facility 'which has the advantage of being subject to a myriad of standards before being allowed to provide that service.
31 In this context, the Tribunal is concerned that, if appointed guardian, WR may take HR out of the Facility without first ensuring that all the necessary supports in terms of an appropriate and reliable residence, suitable healthcare staff, access to medical advice and treatment, and available funding are in place.
Other issues relating to the suitability of WR to be guardian
32 In written submissions and in his oral evidence, WR has repeatedly made very serious allegations in relation to decisions made by the Public Advocate's delegate since the Public Advocate was appointed the guardian of HR. He said in written submissions to the Tribunal that the decision of the guardian to limit WR's contact time with HR is 'killing' her, that she is being 'tortured', and has 'destroyed her health' (tab 45 of the Hearing Book). At the hearing WR called that decision a 'kill order' (T:27; 20.03.14) and claimed that HR was '70% worse' because WR has not been able to be present as much as he previously had been to supervise HR's care (T:10; 20.03.14). When asked by the Tribunal what WR meant by his statement that HR's health was 70% deteriorated, WR stated that the issue was 'mum being tired or being quiet when she's with me' and 'it's the conscious state which I believe was brought on by the hoisting, you know, mum getting up too early so she was semiconscious, you know, she wasn't aware' and also referred to a deterioration of HR's skin integrity (T:28; 20.03.14). WR explained the skin integrity issue as 'it's just that the skin that went bad. I mean, I just one of the ladies eventually said, look, you know, you should try some garlic salt, just very, very lightly and, you, so I've applied that. And after about six or seven weeks, it did cut down' (T:28; 20.03.14). The Tribunal accepts that WR was also referring, in his use of the expression 'kill order', to his concern that if he was not present, the staff at the Facility would not wait sufficient time after giving HR a peg feed before placing her into a recumbent position (potentially causing her to aspirate the contents of her feed into her trachea and lungs).
33 WR could point to no objective evidence to support his opinion that there had been any deterioration in HR's health. The delegate guardian advised the Tribunal that at the last care plan review he attended, the registered nurse advised that HR had been 'pretty stable the entire time she had been in care and that her care needs had not altered' (T:26; 20.03.14). HS, a nurse who works at the Facility advised the Tribunal that HR had been stable since she first came in, with no change in her health status (T:6; 08.05.14). In response to a question as to whether HR had, while in the Facility, suffered any pneumonia or aspiration pneumonia, HS told the Tribunal that HR had had an episode of flulike symptoms that had been treated with antibiotics 'but nothing like with aspiration or anything like that, no' (T:6; 08.05.14). The Tribunal prefers the evidence of HS in relation to the health of HR over the opinions on that topic expressed by WR.
34 The Tribunal considers that at times WR uses exaggerated and emotive language (for example, killing his mother, torturing her) that is not objectively supported or reasonable in the circumstances. The Tribunal accepts that WR uses this language not to deliberately exaggerate issues, but because, in his perception, that is the reality of the situation. HS advised the Tribunal that WR 'is always disputing, like, the care of his mother, and looking for little things, to blame staff for different things … and he's quite verbally abusive, at times with staff. And his whole body is aggressive' (T:7; 08.05.14). The Tribunal observed that when questioning HS, or JY, the Facility's operations manager, WR's tone changed to one that could readily be perceived as aggressive or intimidatory.
35 The Tribunal concludes that WR has had difficulty communicating with and maintaining appropriate interpersonal relationships with the health professionals involved with caring for HR at the Facility. In part this may be because he expresses himself at times with extreme and emotive language. Further he has taken some extreme positions on issues with as much rigidity as he does in relation to what could objectively be seen as more reasonable concerns, such as the importance of ensuring that HR does not aspirate her peg feeds. For example, it seems WR has maintained a constant and forceful objection to the cleaning products used in HR's room in the Facility and a deodoriser located in the passageway outside of her room, where there is no objective evidence to indicate that either of these things are in any way harmful to HR.
36 In the circumstances, the Tribunal is concerned that WR is not likely to be able to maintain appropriate communications and relationships with agency staff engaged to assist him in caring for HR in the community. In a model of care where HR is reliant solely on WR and any health professionals willing to work with him in a private residence, this concern must be given some significance. In addition, WR's method of communication and his perception of issues that is at times out of proportion with objective information means that he has decreased effectiveness in being able to advocate for HR even within the context of her residing in a residential care facility.
37 The Tribunal considers that WR shows questionable judgment in focusing solely on his plan to care for HR in the community without developing any sufficiently detailed proposal, and not considering any potential alternative that may improve HR's circumstances in the meantime. It is very clear that WR is unhappy with the care being provided to HR at the Facility. Some of the concerns WR expresses, if it is accepted that the facts as reported by WR are accurate, are reasonable ones. It is noted that in the context of this hearing the Tribunal was not in a position to determine the accuracy of those facts, nor was it necessary to do so for the purposes of this review. For example, the alleged failure of staff at the facility to ensure that HR remains in an appropriate position for a sufficient time following a peg feed to minimise the risk of her aspirating the contents of her feed is objectively reasonable and of considerable importance. If the Facility does not have suitable policies in place and/or does not ensure that staff at the Facility are properly following those policies, then it would be in HR's best interests to move her to a residential facility that does have such policies and does properly enforce them. The delegate guardian suggested sometime ago that WR explore alternative facilities for HR and said that he would be willing to approve her move to a different facility. However, WR has not made any but the most cursory attempt to explore that option.
Conclusion as to WR's suitability to be appointed guardian
38 In conclusion, the Tribunal is not satisfied that WR is able to effectively perform the functions vested in a guardian. The Tribunal is satisfied that he can personally provide a high level of love and attention to HR, although her needs cannot be met by a single person, particularly one not qualified as a medical or healthcare professional. However, the functions of a guardian involve decision making in the represented person's best interests. It is not about the ability to provide love and attention or even care for the represented person. The Tribunal is not satisfied that WR can make decisions in HR's best interests or effectively advocate for her best interests. Therefore WR is not suitable to be appointed as HR's guardian. As there is no other person willing to take on the role, the Tribunal's only option was to appoint the Public Advocate as HR's guardian.
Review date
39 HR's condition is a permanent one, and it cannot be reasonably expected that her decisionmaking capacity would change. In the circumstances it is appropriate that the Tribunal review the guardianship order within five years, the maximum allowable time under the GA Act.
Orders
The Tribunal declares that HR:
(a) is incapable of looking after her own health and safety;
(b) is unable to make reasonable judgments in respect of matters relating to her person;
(c) is in need of oversight, care or control in the interests of her own health and safety or for the protection of others; and
(d) is in need of a guardian,
1. The order is confirmed as follows:
The Public Advocate of Level 2, International House, 26 St Georges Terrace, Perth, Western Australia be appointed limited guardian of the represented person with the following functions:
(a) subject to Division 3 of Part 5 of the Guardianship and Administration Act 1990 (WA), to make treatment decisions for the represented person;
(b) to decide where the represented person is to live, whether permanently or temporarily;
(c) to decide with whom the represented person is to live;
(d) to determine the services to which the represented person should have access; and
(e) to determine what contact, if any, the represented person should have with others and the extent of that contact.
2. The Tribunal approves delegation by the Public Advocate of her functions as guardian of the represented person to an officer or employee employed in the Office of the Public Advocate.
3. This order is to be reviewed by 8 May 2019.
I certify that this and the preceding [39] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS L EDDY, MEMBER