JP

[2008] WASAT 3

JP [2008] WASAT 3

Last Update :21/01/2008

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2008] WASAT 3
Published:
Act:	GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
Case No:	GAA:1500/2007	Heard:	2 OCTOBER 2007
Coram:	MR J MANSVELD (MEMBER)	Delivered:	07/01/2008
No Pages:	17	Judgment Part:	1 of 1
Result:	A guardian is appointed
Category:	B

Parties & Catchwords


Judgment

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : HUMAN RIGHTS ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : JP [2008] WASAT 3 MEMBER : MR J MANSVELD (MEMBER) HEARD : 2 OCTOBER 2007 DELIVERED : 8 JANUARY 2008 FILE NO/S : GAA 1500 of 2007 BETWEEN : JP

Represented Person

Catchwords:

Guardianship and administration - Need for a guardian -Meaning of treatment under the Guardianship and Administration Act 1990 (WA) limited to the alleviation or prevention of a deterioration of a medical condition - Restraint as the intentional control of a person's behaviour or movementother than the treatment of a diagnosed mental illness - Control by medication of the behavioural effects of a brain trauma as restraint

Legislation:

Guardianship and Administration Act 2000 (Qld), s 5(1) Sch 2
Guardianship and Administration Act 1990 (WA), s 3, s 4(2)(b), s 43(1)(b), s 44, s 84, s 90, s 119, Div 3, Pt 5

Result:

A guardian is appointed

(Page 2)

Category: B

Representation:

Counsel:

Represented Person : N/A

Solicitors:

Represented Person : Self-represented

Case(s) referred to in decision(s):

B v Croydon Health Authority [1995] 2 WLR 294
BTO [2004] WAGAB 2
Re Application for Guardianship Order (BCB) (2002) 28 SR (WA) 338
Re WMC [2005] QGAAT 26

(Page 3)

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of the Tribunal's decision

1 JP, a 59-year-old man, was involved in a workplace accident in 2005 which left him with severe residual physical, cognitive and behavioural deficiencies as a consequence of a brain trauma.

2 In September 2006, the Tribunal appointed the Public Advocate as the man's limited guardian for 12 months with the functions of consenting to his treatment and health care; to determine what contact he should have with others; to investigate any need to consent to the use of chemical or physical restraint, and to investigate the need for and availability of any further rehabilitation treatment.

3 At the hearing for the review of the guardianship order, evidence was given that the man would not benefit from further rehabilitation and that his behavioural difficulties (including agitation, aggression and bullying) were managed by the prescription of antipsychotic medication.

4 It was submitted by the Public Advocate and the Director of Nursing from the aged care facility where the man lived, that the antipsychotic medication was treatment for the effects of the man's condition, namely the brain injury.

5 The Tribunal disagreed and found that the antipsychotic medication was a form of chemical restraint because it was given with the intention of controlling the man's behaviour albeit that the behaviour was not conducive to the man's functioning in the aged care facility in which he lived.

6 The Tribunal found that, given the seriousness of any action to restrict the man's movement or behaviour, it would be more productive to take a cautionary stance and to name the restriction rather than defining the behaviour as part of the process of a disease (and by doing so, describing the intervention as treatment).

7 To do so was to make the intervention transparent and to put squarely in front of the guardian, as decision-maker, the need to consider whether the intervention was beneficial for the man and not for the convenience of care or medical staff of the institution in which the person was residing.

(Page 4)

8 The Tribunal decided that a guardian was still needed to consent to the man's treatment and health care, and to consent to any restraint that he might require from time to time.

9 The Tribunal decided to appoint his daughter as the man's guardian. She was the only person to propose as guardian and her appointment was supported by the man's sister and his former de facto spouse.

Background

10 These reasons relate to a review of an order for guardianship for a 59-year-old man (JP) who suffered a brain injury as a consequence of a workplace accident in 2005.

11 The relevant legislation is the Guardianship and Administration Act 1990 (WA) (the GA Act).

12 On 11 September 2006, the Tribunal appointed the Public Advocate as JP's limited guardian for 12 months with the functions of consenting to his treatment and health care; to determine what contact he should have with others; to investigate any need to consent to the use of chemical or physical restraint, and to investigate his need for and availability of any further rehabilitation treatment.

13 The order of 11 September 2006 is the subject of the current review, pursuant to s 84 of the GA Act.

14 The hearing of the review was held on 2 October 2007. Present at the hearing were: JP; JH, the delegated guardian (Public Advocate); CA, Nurse Manager of the aged care facility in which JP resides; KC, Director of Nursing of the facility; KM, daughter, and BK, sister of JP.

15 The decision of the Tribunal was reserved to enable the Public Advocate to obtain the views of EW, former de facto spouse of JP who did not attend the hearing, and to enable the Tribunal to consider whether certain medications prescribed for JP are in the nature of treatment or whether they constitute a form of restraint.

Power of the Tribunal upon review of an administration order

16 Under s 90 of the GA Act, the Tribunal may, as it considers necessary in the best interests of JP, the represented person, (a person the subject of a guardianship and/or an administration order), confirm the order, amend the order, revoke the order or revoke the order and substitute another order for it.

(Page 5)

The capacity of JP

17 Before the Tribunal can consider whether a person is in need of a guardian, it must first be satisfied that the person is incapable of looking after his own health and safety; is unable to make reasonable judgments in respect of matters relating to his person; or is in need of oversight, care and control in the interests of his own health and safety or for the protection of others (s 43(1)(b) of the GA Act).

18 A person is presumed to be capable of looking after his own health and safety and making reasonable judgments in respect of matters relating to his person until the contrary is proved to the satisfaction of the Tribunal (s 4(2)(b) of the GA Act).

19 The Tribunal has been provided with a number of reports in respect of JP's current abilities; they are from Dr DH, his general practitioner; KC, the Director of Nursing at the aged care facility, and Dr KF, Specialist in Rehabilitation Medicine.

20 In his report, Dr DH states the view that JP should be involved in decisions made about him but that he not be permitted to make decisions he would later regret. Dr DH states that JP has impairment of memory and judgment, a loss of inhibition, and that he cannot understand the consequences of choices available to him.

21 KC states in her report that JP lacks insight into his disabilities, is not able to follow instructions, has markedly varying memory loss, and suffers from delusions and hallucinations. He resides in the facility's secure wing.

22 Dr KF states that in September 2005, JP sustained an episode of severe brain trauma when he apparently fell onto a concrete floor in the course of his employment. His diagnosis is one of traumatic brain injury with severe residual physical, cognitive and behavioural deficiencies. Dr KF states:

"It is perhaps in the area of his personality and behaviour that [JP] has the greatest level of residual disability. He is extremely impulsive and becomes easily frustrated. In turn, this leads him to resorting to manipulative and aggressive behaviours to try and obtain his wishes. This can be appropriately classified as resorting to bullying behaviour, particularly with regard to trying to obtain a continuing supply of cigarettes from hospital

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staff. This was identified as being a major problem at the [aged care facility]."

23 There is no dispute that JP lacks the mental ability to consider the choices and consequences of decisions that need to be made for him, although his daughter, KM, submits that, in her view, he can input into decisions depending on "the day [or] mood."

24 I am satisfied, on the evidence, that JP meets all the requirements of s 43(1)(b) of the GA Act (see above) and that he is a person for whom a guardian could continue to be appointed.

Is JP in need of a guardian (evidence and submissions)?

25 In respect of the existing guardianship order for JP, the Public Advocate reports as follows:

Consent to treatment and health care

26 JP is currently on a treatment regime prescribed by his general practitioner, which includes Zyprexa for the suppression of his more aggressive behaviours. He is prescribed medication for asthma and takes blood thinning medication and an antidepressant. It is submitted that a guardian is needed to continue to make treatment decisions for JP so that his general practitioner and the aged care facility have certainty in the decision-making.

Contact with others

27 The Public Advocate states that despite a level of tension between EW (former de facto spouse of JP) and other family members, there have been no requests made for formal contact arrangements to be put in place since her appointment, and that a guardian is likely not required for this purpose. JP's contact with others takes place mainly in the aged care facility as it is difficult to manage his behaviour in the community.

Investigate any need to consent to chemical or physical restraint

28 The Public Advocate submits that the prescribing of Zyprexa assists JP to function at an optimum level within the care facility. He has a condition with symptoms which can be ameliorated with medication, and it is submitted that the use of that medication is treatment and not in the nature of chemical restraint.

(Page 7)

Investigate the need for and availability of any further rehabilitation treatment

29 The Public Advocate states that JP was assessed by the specialist, Dr KF, in the middle of this year as to his prospects for further rehabilitation. It is the view of Dr KF that there is no potential for further improvements for JP through rehabilitation therapy (Dr KF states in his report that JP does not have "any worthwhile potential for improvements through rehabilitation therapy" and that he is unlikely to regain a capacity for independent living. He notes that JP has a significant medical history of ischaemic heart disease, is severely obese and has probable sleep apnoea syndrome for which he refuses treatment).

30 It is submitted by the Public Advocate that a guardian is no longer required to specifically decide whether additional rehabilitation should take place.

31 In her evidence, KC (Director of Nursing), states that contact with JP has caused problems at times (mainly, it seems, between EW and KM) but that appears to have been overcome by them not visiting him at the same time.

32 KM states that the point has not been reached "… where we just can't stand the sight of each other" (in reference to her relationship with EW).

33 In respect of the medications JP is prescribed, KC's evidence is as follows:

• he is given aspirin as a blood thinner for his heart disease;

• he takes an antidepressant and medications for asthma, reflux and pain;

• he is given 10 milligrams of Zyprexa daily to control his agitation; and

• he is given 50 milligrams of Largactil daily to control his delusional episodes (KC gives an example of JP getting up in the early hours of the morning insisting he has to go to work).

34 KC submits that the Zyprexa and Largactil is treatment for the effects of JP's mental condition (the brain injury). She puts it this way:

"That medication, the Zyprexin, was being used as a behavioural management therapy, because when [JP] doesn't have it, he can't see straight, let alone think, even begin to think straight … All it does is it allows him some scope of being able to think,

(Page 8)

to function as well as what he can. Without it, his agitation is extreme and he cannot function. He becomes more delusional … and more psychotic and it impacts on every aspect of his life. From that point of view, I don't see it being a restraint. I see it actually [as] a treatment to enable him to function."

35 In her evidence, KW raised the issue of JP's accommodation and whether it would be in his best interests to move to a facility in Perth because currently:

"… dad's visits from people are numbered. It's me and [EW] and my family and that's not a good life for dad. I mean, he doesn't have any work colleagues, communication. I really feel dad needs a lot more people around him, his own people."

36 The Public Advocate submits that JP has always stated a preference to live in the country town in which he currently resides. The family is, however, at liberty to consider other options, and a guardian might only be needed with an accommodation function if there is opposition to a particular proposal.

37 BK (sister) agrees that the family could discuss the matter of JP's accommodation without the need for a formal order.

The Tribunal's findings and determination on the question of JP's need for a guardian

38 The Tribunal shall not make a guardianship (or administration) order if the needs of the person could, in the Tribunal's opinion, be met by other means less restrictive of the person's freedom of decision and action (s 4(2)(c) of the GA Act).

39 I accept the submission of the Public Advocate that the functions given to her formally by the Tribunal in 2006 have largely been dealt with, and that if a guardian is still needed for JP, it should be in a reduced role.

40 JP resides in an aged care facility because of his high care needs. There is no dispute that he will require this level of care for the rest of his life; his physical and cognitive disabilities are significant and are no longer open to concentrated rehabilitation. Consideration may be given in the future as to whether the particular facility in which he currently lives is the most appropriate for him but I am confident this can be decided by the family if and when that situation arises.

(Page 9)

41 Evidence has been given about the tension that has existed between EW, the former de facto spouse of JP, and certain family members. Of late, this does not seem to have unduly intruded in the care of JP, and visits to him in the aged care facility appear to be managed appropriately.

42 I am satisfied that JP is in need of someone with formal authority to continue to make decisions regarding his treatment and health care. I agree with the reasoning of the Full Board of the former Guardianship and Administration Board (the Board) (the functions of which were taken over by this Tribunal in January 2005) in BTO [2004] WAGAB 2, that it is not wise to conclude that in Western Australia, a medical practitioner or any other health professional can presently provide treatment without a patient's consent.

43 JP is not capable of providing consent to his own treatment and requires a person to do so on his behalf.

44 Under s 119 of the GA Act, a person in a hierarchy of persons (the first person in the order of priority) has the authority to make decisions about an incapable person's treatment without the need to be his or her formally appointed guardian.

45 In JP's situation, the unclear standing of EW (in her now reported status as his former de facto spouse), and the history of tensions between her and other family members, would, in my view, support the appointment of a guardian to ensure certainty and consistency in the decision-making about his ongoing health needs.

The question of restraint or treatment

46 The prescription of certain medication for JP (I am referring here to the antipsychotic medications Zyprexa and Largactil), has raised the question of whether their use is considered treatment or whether they constitute a form of restraint (and therefore fall outside the definition of treatment in the GA Act).

47 The extent to which a form of intervention can be deemed treatment or restraint was addressed by the Board in Re Application for Guardianship Order (BCB)(2002) 28 SR (WA) 338.

48 In that decision, the Board expressed the view that whether the use of physical and chemical restraints as defined (see below) could be said to constitute treatment for the purposes of the GA Act might well depend on the reason for its use, the purpose to which it might be put and who

(Page 10)

prescribed its use. The Board concluded that whether or not something constitutes treatment must be examined on a case-by-case basis.

49 Treatment, as it is defined in s 3 of the GA Act, was recognised as having wide meaning by the Board in BTO (see particularly [30] to [39]) but the question of whether it extends to intervention into a person's behaviour was not addressed. The Board stated at [40]:

"Whether the possibility referred to by the Board in Re BCB (supra), that medical treatment may not be limited to treatment to alleviate or prevent a deterioration of a medical condition, but may extend to treatment to prevent a patient from causing harm to himself or to alleviate the consequences of that condition is correct (as to which see B v Croydon Health Authority [1995] 2 WLR 294), is not an issue that arises in the case before us and we expressly do not comment upon it."

50 The Board in BCB set out a process by which an intervention might be deemed treatment (endorsed in BTO), but leaves open the question (as does BTO) of whether, in any case, treatment is limited "to treatment to alleviate or prevent a deterioration of a medical condition."

51 If the definition of treatment is limited in this way, then an intervention of the type described in the case before me (the prescribing of the Zyprexa and Largactil) must fit into that limited definition to fall within a guardian's authority to consent to treatment.

52 There must also be a "medical condition" to be treated, which is a relevant consideration in JP's case because he suffers from the effects of an acquired brain injury rather than an illness or disease as those terms are commonly understood.

53 In Re WMC [2005] QGAAT 26, the Queensland Guardianship and Administration Tribunal found that a person with an intellectual disability (but not a diagnosed mental illness) had a "mental condition" within the meaning of "health care" in the Guardianship and Administration Act 2000 (Qld) (the Queensland Act). The Tribunal stated at [45]:

"The Tribunal is satisfied however that Mr WCM's limited cognitive capacity which is consistent with a diagnosis of moderate mental retardation (WAIS IQ50) means that he has a 'mental condition' and his destructive behaviours and aggression are a manifestation of this condition."

(Page 11)

54 In the Queensland Act, "health care" is defined as care or treatment of, or a service or a procedure for, the adult to diagnose, maintain or treat the adult's physical or mental condition which is carried out by or under the direction or supervision of a health provider (s 5(1) of Sch 2).

55 The Queensland Tribunal went on to find at [46] to [49] that medication given to Mr WCM when he became seriously agitated and the use of a time-out room to seclude him when he became destructive or violent, fell within the definition of "health care"; medication because it maintained or treated his mental condition, and in respect of seclusion at [48]:

"The Tribunal is satisfied on the evidence that seclusion and indeed some other restrictive practices can be accurately characterised as 'treatment' and therefore come within the definition of 'health care' because seclusion and indeed restraint do relieve symptoms of the mental condition and do have a therapeutic effect on aggression and disruptive behaviour, which are the manifestations of the mental condition."

56 The decision in WMC clearly extends the scope of treatment in a way envisaged by B v Croydon Health Authority [1995] 2 WLR 294 (see above) but which has not yet been decided in Western Australia, either in BCB or BTO(see also above).

57 In BCB, the following definitions of restraint (from the Ministerial Taskforce (NSW) May 1997 on Psychotropic Medication Used in Nursing Homes) were adopted [at 347].

58 Physical restraint is "[T]he intentional restriction of a person's voluntary movement or behaviour by the use of a device or physical force for behavioural purposes."

59 Chemical restraint is "[T]he intentional use of medication to control a person's behaviour when no medically identified condition is being treated, where the treatment is not necessary for the condition or amounts to over[-]treatment for the condition."

60 A number of things can be said about these definitions.

61 The definitions of restraint do not, on their face, appear to have an ongoing therapeutic value; read plainly, they describe interventions to be avoided or, at best, to be used only in exceptional circumstances.

(Page 12)

62 In respect of physical restraint, the restriction is to a person's voluntary movement or behaviour. The concern (and difficulty) is to be able to characterise a movement or behaviour as one accomplished in accordance with a person's will and the extent to which the will (or voluntary act) might be impaired by a medical condition.

63 In respect of chemical restraint, the definition refers to the use of medication as a way of controlling a person's behaviour when that intervention is indicated only by a perceived need to control the behaviour.

64 In my view, these definitions of restraint are not satisfactory as a benchmark by which to characterise certain types of bodily intervention; they are too narrow in their scope. Given the seriousness of any action to restrict a person's movement or behaviour, it may be more productive to take a cautionary stance and to name the restriction rather than defining the behaviour as part of the process of a disease (and by doing so, describing the intervention as treatment).

65 In respect of the welfare of the person to whom the intervention is being applied, it seems to me to be more conducive to his or her best interests to characterise any intentional restriction of movement or behaviour as restraint (other than the treatment of a diagnosed mental illness) if the decision is to be made by a guardian under the jurisdiction of the GA Act. To do so is to make the intervention transparent and to put squarely in front of the guardian as decision-maker the need to consider whether the intervention is beneficial for the person and not for the convenience of care or medical staff of the institution in which the person is residing.

66 I accept, as in BCB, that whether a form of bodily intervention constitutes treatment or restraint must be examined on a case-by-case basis, but as I have already stated, if the purpose is to intentionally control a person's movement or behaviour (other than the treatment of a diagnosed mental illness), it is my view that the intervention is properly characterised as restraint and not treatment.

67 The protection this potentially affords a person who is unable to advance his or her own interests (and whose best interests is the primary concern of this Tribunal), is that, as stated by the Board inBCB, in the evidence before it, there was a demonstrated consensus on the following points [at 352]:

(Page 13)

"(1) restraints should only be used after all other options have been exhausted[;]

(2) the process by which the conclusion to use restraints should be well documented[;]

(3) in considering whether or not a form of restraint is appropriate the following are some of the factors to consider:

(a) the reason a restraint is necessary;

(b) the purpose for which the restraint has been applied;

(c) who prescribed its use and how the decision was reached;

(d) whether the form of restraint is the least restrictive and applied for the shortest time;

(e) whether or not there are adequate procedures in place to review the use of the restraints.

(4) external or independent involvement in the decision[-] making process is an important, if not essential, safeguard.

(5) restraint of a patient for staff convenience or because of inadequate staffing is unacceptable."

68 In respect of JP, Dr KF, Specialist in Rehabilitation Medicine, states that the brain injury has left him with severe residual physical, cognitive and behavioural deficiencies including manipulative, aggressive and bullying behaviour.

69 The use of Zyprexa and Largactil according to KC (Director of Nursing) is as a "behavioural management therapy" for JP. She states that it is needed to enable him to function by reducing his delusions and agitation. She submits that the giving of the medication is treatment for the effects of his mental condition (the brain injury) and is not restraint.

70 The Public Advocate supports the view of KC, and in her written report to the Tribunal (and after speaking with Dr DH, JP's general practitioner), states that JP has a condition with symptoms which can be

(Page 14)

ameliorated by medication and that the use of the medication for that purpose is not restraint.

71 Given what I have said about restraint, I cannot agree with that position. Evidence has not been presented that JP suffers from a mental illness. Dr KF assesses JP's behaviour in the context of his brain trauma. I accept that JP's personality has been permanently affected by that trauma and that the resultant behaviour affects his social functioning even within an institutional setting.

72 The brain trauma may be a "medical condition" if it is it is not able to be cured. The damage to JP's brain happened at a point in time, and in that respect, it is a static condition but with ongoing behavioural effects that debilitate him if not dealt with in some way.

73 In JP's case, the management of the behaviour is by way of medication. There may or may not be other ways in other settings by which his behaviour can be managed. The point of any intervention, however, is to prevent him from behaving in a certain way, be it becoming agitated or aggressive, or bullying in order to achieve what he wants at a particular time (Dr KF, for example, mentions JP engages in this sort of behaviour to ensure a continuing supply of cigarettes).

74 The effect of the intervention is to control JP's movement and behaviour and while that, on the evidence before me, is necessary and in his current best interests, it is, in my view, restraint, and should be managed and reviewed from that perspective.

75 JP is in need of a guardian to consent to the restraint and to ensure that it is reviewed regularly and remains the least restrictive means by which his behaviour is managed.

Who should be appointed JP's guardian (evidence and submissions)?

76 KM, daughter of JP, proposes herself as his guardian. She says that she is in the best position to communicate with all family members, as well as EW, about JP's situation.

77 KM says that she has experienced EW "… slowly getting a bit tired of it, a bit worn out …" and that EW no longer sees herself as JP's de facto spouse but as his friend. She says that if EW "really cared", she would have made herself available for the hearing.

78 BK (JP's sister) supports the appointment of KM. She says that KM has contact with and is well liked by every family member. She states:

(Page 15)

"I know [KM] very well and I know that she has always had a very close relationship with my brother, up until probably five or six years ago, and then it waned, through [EW] I suppose - differences of opinion, I would imagine, but [KM]'s never waned in her support for her father. So, yes, I find that [KM] will always be there. She will always be there. She will be there for the long haul."

79 In her evidence, KC, Director of Nursing, expresses an ongoing concern with the appointment of any family member because of what she sees as continuing family conflict and difficulties with communication. She says, however, that KM has, over the last several months, become more understanding of JP's compromised circumstances and condition.

80 In her oral evidence, the Public Advocate states that EW no longer considers herself as JP's de facto spouse. EW is said to still care for JP and is prepared to remain involved with him as she has assisted him over the past 18 years. She does not visit him as often because of his difficult behaviour.

81 In written evidence provided to the Tribunal after the hearing, the Public Advocate states that she made contact with EW and the following is a summary of their discussion:

"[EW] states she has provided a lot of support for [JP] in the past and recent times whereas family members have not given that level of support. [KM] and she had had a discussion prior to her leaving [for a holiday]. She was aware that [KM] intended proposing herself as guardian and that this was supported by [JP]'s family. If the Tribunal is of the view that [KM] should be appointed guardian she would support this decision. [EW] believes that [KM] will consult and discuss medical situations with her. If [KM] was the decision-maker it would allow [EW] to have a different relationship with [JP] - that of a friend rather than a formal role. At this point in time she would prefer this. [EW] stated there has been on-going tension between her and the family and since [JP]'s accident she has been under significant stress. If she is no longer had the decision-making role it would ease the burden of concern that the family would be critical of her decisions. She believes that [KM] will consult with Dr [DH] and [KC], she does have her father's best interests at heart and will do the right thing. She feels that [KM] has become more realistic regarding his

(Page 16)

level of recovery and is more accepting of professional's opinions. She also feels that if [KC] was dissatisfied with any aspect of [KM]'s decision-making, the former would not hesitate to approach the Tribunal."

82 JP was unable to make any substantial contribution to the hearing but when asked who he would want to make medical decisions for him, he at first responded "I leave it up to the doctor." After further questioning, he said that "I would like to see [EW] get back, put in guardianship on me, as I have known [EW] for 18 years. And later, "between her [EW] and [KM], I think they would be the most - two most responsible people to take care of me."

The Tribunal's findings and determination on the question of who should be appointed JP's guardian

83 Section 44 of the GA Act provides guidance to the Tribunal as to who should be appointed a guardian.

84 The Public Advocate was appointed JP's sole guardian in September 2006 for 12 months, and under s 44(5) of the GA Act, this should only occur if no other person can be found who is suitable and willing to act.

85 KM is the only person who has been proposed as JP's guardian. There is no proposal put to me for the appointment of joint guardians.

86 I have noted the concerns of KC but am satisfied on the evidence that KM is suitable to be appointed JP's guardian.

87 I am satisfied that KM will act in JP's best interests (s 44(1)(a)). The evidence shows that she has become more aware of his debilitating condition and is now in a position to realistically assess his care needs. She is said to be able to communicate with family members, and her appointment is supported by EW, the former de facto spouse of JP.

88 KM, as JP's daughter, has an active relationship with him and is therefore compatible with him. Although JP would wish for EW still to be involved, she has not proposed herself, and he also has expressed a preference for KM. Her appointment is not inconsistent with his wishes (s 44(2)).

89 I see no reason to appoint KM for less than the maximum period available under the GA Act, that being five years (s 84).

(Page 17)

Order

90 The Tribunal orders that:

1. KM is appointed JP's limited guardian with the following functions:
• To consent to any treatment or health care of JP subject to Div 3 of Pt 5 of the GA Act; and

• To consent to the use of chemical or physical restraint in respect of JP and to decide incidental matters thereto.

2. The order is set for review by 7 January 2013.

I certify that this and the preceding [90] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________

MR J MANSVELD, MEMBER