ADP

[2005] WASAT 131

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

STREAM:   HUMAN RIGHTS

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION:   ADP [2005] WASAT 131

MEMBER:   MR J MANSVELD (MEMBER)

HEARD:   19 APRIL 2005

DELIVERED          :   10 JUNE 2005

FILE NO/S:   GAA 303 of 2005

BETWEEN:   ADP

Applicant

Catchwords:

Guardianship - Need for a guardian - Needs of the person - Meaning of treatment - Consent to treatment - Restraint

Legislation:

Guardianship and Administration Act 1990 (WA), s 3, s 4, s 43, s 119

State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Act 2004 (WA)

Result:

The order for plenary guardianship made by the Guardianship and Administration Board on 6 March 2001 was revoked and a new order made for the Public Advocate to be limited guardian.

Category:    B

Representation:

Counsel:

Applicant:     Self represented

Solicitors:

Applicant:     Self-represented

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

Re Application for Guardianship Order (BCB) (2002) 28 SR (WA) 338

Re BTO, unreported decision of the Full Board of the Guardianship and Administration Board delivered 14 October 2004 (Hon Justice ML Barker, President, Dr A McCutcheon, Member and F Child, Member)

Review of Guardianship and Administration Orders in respect of MM (2001) 28 SR (WA) 320

RW, unreported decision of the Guardianship and Administration Board, No 020295, 19 December 2003

Case(s) also cited:

Secretary, Department of Health and Community Services v JWB (Marion's case) (1992) 175 CLR 218

MR J MANSVELD (MEMBER):

REASONS FOR DECISION

Background

1. On 11 March 2005, the Public Advocate filed an application for review of the guardianship order for ADP.

2. The Public Advocate is seeking revocation of the order appointing her as ADP's plenary guardian.  The Guardianship and Administration Board made that order on 6 March 2001 for five years.

3. The Tribunal is deciding this application because the State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Act2004 (WA) came into effect on 24 January 2005 and the functions of the Board were taken over by the Tribunal.

4. The Tribunal heard the application on 22 March 2005 and reserved its decision.

Capacity of ADP

1. When the guardianship order was made in 2001, the Board found ADP to lack capacity pursuant to s 43(1)(b) of the Guardianship and Administration Act1990 (WA) ("the Act").

2. Section 43(1)(b) provides:

   "43. Making of guardianship order

   (1)Subject to section 4, where the State Administrative Tribunal is satisfied that a person in respect of whom an application for a guardianship order is made under section 40 ‑

   (a)       … ,

   (b)       is –

   (i)incapable of looking after his own health and safety;

   (ii)unable to make reasonable judgments in respect of matters 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 …"

3. Section 4(2)(b), as one of the principles which the Tribunal shall observe in dealing with proceedings commenced under the Act, presumes a person to be competent unless the contrary is proved to the satisfaction of the Tribunal.

4. The Tribunal has…