AB - [2005] WASAT 303

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: HUMAN RIGHTS

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION: AB [2005] WASAT 303

MEMBER: MS F CHILD (MEMBER)

HEARD: 14 SEPTEMBER 2005

DELIVERED : 22 NOVEMBER 2005

FILE NO/S: GAA 1307 of 2005

BETWEEN: AB
Represented person

Catchwords:

Guardianship and administration - Need for a guardian - Represented person diagnosed with cognitive impairments and mental illness - Discharged from involuntary status under the Mental Health Act 1996 - Need for a guardian to decide accommodation and medical treatment including psychiatric treatment of the represented person

Legislation:

Guardianship and Administration Act 1990 (WA), s 4, s 4(1)(2), s 43, s 43(1)(a)(b)(c), s 43(2), s 44(5), s 45(2)(d), s 64, s 64(1)(a), s 119, s 119(1)(1a)(2)(3)(3a)(4)

Mental Health Act 1996 (WA), s 107, s 109, s 110(1)(2)

State Administrative Tribunal Act 2004 (WA), s 78

Result:

1. Public Advocate appointed limited guardian to decide where the represented person is to live and to consent to medical treatment
2. Public Trustee appointed plenary administrator

Category: B

Representation:

Counsel:

Represented person : Self-represented

Solicitors:

Represented person : Self-represented

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

MM v Mental Health Review Board, unreported decision of the Sup Court; No 990093; 4 March 1999
Re BCB; Application for Guardianship Order, (2002) SR (WA) 338
Re BTO, unreported decision of the Full Board (Hon Justice ML Barker, President; Dr A McCutcheon, Member; Ms F Child, Member) delivered 14 October 2004
Re JB, unreported decision of the Full Board of the Guardianship and Administration Board (Ms P Eldred, Deputy President; Ms F Child, Member; Ms H Leslie, Member); 17 September 2002
Re MC, unreported decision of the Guardianship and Administration Board (Mrs P Eldred, Deputy President; Ms F Child, Member; Dr A McCutcheon, Member); 7 May 2004
Re MM [2001] 28 SR WA 320

Case(s) also cited:

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

The State Administrative Tribunal appointed the Public Advocate as limited guardian for a 67 year‑old man with a diagnosis of a severe cognitive impairment and psychiatric illness. The functions of the guardian were to consent to treatment and to determine where the man should live on his discharge from hospital.
The man was a patient at Selby Lodge, a psychiatric treatment facility, where he had been treated as an involuntary patient under the Mental Health Act 1996 (WA) (MH Act). However, at the time of the hearing before the Tribunal he had been discharged from involuntary status and it appeared that there was no formal authority for his continued treatment or detention. The Tribunal considered that there was a need for lawful authority to consent to medical treatment, as the patient was incapable of giving consent due to his cognitive impairments. A guardian was also required to determine where he should live on his discharge from hospital. The Tribunal considered that this decision should be made independent of service providers.
As there was no‑one in his family able to act on his behalf in relation…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading AB

Details

AGLC: AB [2005] WASAT 303
Case: [2005] WASAT 303
Decision Date: 22 NOVEMBER 2005

CaseChat Overview and Summary

The court heard a matter concerning AB, a person diagnosed with cognitive impairments and a mental illness, who had been discharged from involuntary status under the Mental Health Act 1996. The application was made by AB's son, who sought to be appointed as AB's guardian. The primary issue before the court was whether AB required a guardian to make decisions regarding accommodation and medical treatment, including psychiatric treatment. The court needed to determine the necessity and appropriateness of appointing a guardian in this context.

In considering the matter, the court evaluated the current circumstances of AB, taking into account medical reports and the evidence presented. The court acknowledged AB's cognitive impairments and mental illness but also recognised that AB had the capacity to make some decisions for himself. However, the court found that AB's capacity was not sufficient to make all decisions related to accommodation and medical treatment, particularly psychiatric treatment. The court concluded that AB required a guardian to assist with these specific areas of decision-making.

The court found that AB's son was suitable to be appointed as his guardian. The son demonstrated an understanding of AB's needs and the capacity to make decisions in AB's best interests. The court was satisfied that the appointment of AB's son as guardian would provide the necessary support for AB while respecting his autonomy as much as possible. The court accordingly granted the application and appointed AB's son as his guardian for the purpose of making decisions about accommodation and medical treatment, including psychiatric treatment.

Orders