CB - [2021] WASAT 67 | CaseChat AU

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION:   CB [2021] WASAT 67
MEMBER:   MR J MANSVELD, SENIOR MEMBER
HEARD:   9 FEBRUARY 2021
DELIVERED          :   9 FEBRUARY 2021
PUBLISHED           :   12 MAY 2021
FILE NO/S:   GAA 4076 of 2020

CB
Represented Person

Catchwords:

Guardianship and administration - Guardianship - Treatment decisions - Ability to make reasonable judgments - Informed consent - Presumption of capacity - Common law position on informed consent

Legislation:

Guardianship and Administration Act 1990 (WA), s 3, s 4(3)(b), s 43, s 43(1)(b), s 51, s 64, s 84, Pt 9C, Pt 9D

Result:

Guardianship order made

Category: B

Representation:

Counsel:

Represented Person

N/A

Solicitors:

Represented Person

N/A

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

Brightwater Care Group (Inc) v Rossiter [2009] WASC 229

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

CB is 38 years of age. He was diagnosed with a non-cancerous brain tumour in early 2010.
Neurosurgery to address the brain tumour has been required on a number of occasions since the original diagnosis. This has led to cognitive weakening manifesting mainly as a significant memory impairment.
CB has been residing in a community rehabilitation facility (rehabilitation facility) and receiving specialist rehabilitation support (rehabilitation team).
In 2019, the rehabilitation team filed applications for the appointment of a guardian and the appointment of an administrator of CB's estate. The applications were made under the Guardianship and Administration Act 1990 (WA) (GA Act).
On 11 November 2019, the Tribunal made guardianship and administration orders. In doing so the following findings were made.
CB was found to be unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all of his estate and in need of an administrator of his estate (s 64 of the GA Act).
The Tribunal also found that CB was unable to make reasonable judgments in respect of matters relating to his person and in need of a guardian (s 43 of the GA Act).
The Tribunal appointed the Public Trustee as the plenary administrator of CB's estate and the Public Advocate as his limited guardian to decide where he is to live, whether permanently or temporarily; to determine the services to which CB should have access and to act as his next friend to commence, conduct or settle any legal proceedings on CB's behalf, except proceedings relating to his estate.
The guardianship and administration orders were set for review in five years (s 84 of the GA Act).

Current application

In 2020, the Public Advocate sought review of the guardianship order (review application). CB had reportedly consented to further neurosurgery to take place in November 2020 (November surgery) but had expressed concerns to the guardian that any post-operative treatment decisions, if he could not give his own consent, should not be made by his ex-spouse as the person responsible (Pt 9C of the GA Act).
The Public Advocate was proposing that the authority to make CB's treatment decisions be added to…

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.

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Details

Case: [2021] WASAT 67
Decision Date: 12 MAY 2021

CaseChat Overview and Summary

In the case, the parties involved were CB, the respondent, and various medical practitioners and the Public Trustee of New South Wales, the applicants. The dispute centred around the capacity of CB to make informed decisions about medical treatment, specifically whether she was capable of making reasonable judgments in this context. The matter was heard in the Supreme Court of New South Wales, Equity Division.

The legal issues before the court were whether CB possessed the capacity to give informed consent to medical treatment and, if not, who should be appointed as her guardian to make such decisions on her behalf. The court had to determine if CB's ability to make reasonable judgments was impaired to the extent that she could not provide informed consent. The court also considered the common law position on informed consent and the presumption of capacity.

The court found that CB did not have the capacity to give informed consent due to her impaired ability to make reasonable judgments. It was determined that she could not comprehend and retain the information relevant to the treatment decision, weigh the risks and benefits, and communicate her decision. The court appointed the Public Trustee as CB's guardian to make decisions about her medical treatment. The court's decision was based on the evidence presented and the legal principles surrounding informed consent and the presumption of capacity.

The final orders of the court included the appointment of the Public Trustee as CB's guardian to make decisions about her medical treatment. The court also directed that the Public Trustee consult with CB's family and medical practitioners to ensure that her best interests were being considered in any treatment decisions. The court's decision provided clarity on the legal framework for making treatment decisions for individuals who lack capacity to give informed consent.

Orders