CDM
[2007] WASAT 282
•30 OCTOBER 2007
CDM [2007] WASAT 282
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2007] WASAT 282 | |
| GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) | |||
| Case No: | GAA:470/2007 | 9 JULY 2007 | |
| Coram: | MR J MANSVELD (MEMBER) | 29/10/07 | |
| 13 | Judgment Part: | 1 of 1 | |
| Result: | An administrator and a guardian are appointed | ||
| B | |||
| PDF Version |
| Parties: | CDM |
Catchwords: | Guardianship and administration Need for a guardian Less restrictive alternative to the appointment of a guardian The meaning of the phrase "with whom the represented person is to associate" Limited guardian |
Legislation: | Guardianship and Administration Act 1990 (WA), s 4, s 43, s 44, s 45, s 46 State Administrative Tribunal Act 1990 (WA), s 78, s 83(1)(b) |
Case References: | In the Marriage of Fryda & Johnson (1979) FLC 90-634 In the Marriage of Horsley (1991) FLC 92-205 In the Marriage of Plows (1979) FLC 90-172 Townsend v Department of Families, Youth and Community Care (1999) FLC 92-842) |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : HUMAN RIGHTS ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : CDM [2007] WASAT 282 MEMBER : MR J MANSVELD (MEMBER) HEARD : 9 JULY 2007 DELIVERED : 30 OCTOBER 2007 FILE NO/S : GAA 470 of 2007
- GAA 471 of 2007
- Represented Person
Catchwords:
Guardianship and administration - Need for a guardian - Less restrictive alternative to the appointment of a guardian - The meaning of the phrase "with whom the represented person is to associate" - Limited guardian
Legislation:
Guardianship and Administration Act 1990 (WA), s 4, s 43, s 44, s 45, s 46
State Administrative Tribunal Act 1990 (WA), s 78, s 83(1)(b)
Result:
An administrator and a guardian are appointed
(Page 2)
Category: B
Representation:
Counsel:
Represented Person : Self-represented
Solicitors:
Represented Person : N/A
Case(s) referred to in decision(s):
In the Marriage of Fryda & Johnson (1979) FLC 90-634
In the Marriage of Horsley (1991) FLC 92-205
In the Marriage of Plows (1979) FLC 90-172
Townsend v Department of Families, Youth and Community Care (1999) FLC 92-842)
(Page 3)
Summary of Tribunal's decision
1 Applications for guardianship and administration were made for a young man who had recently reached 18 years of age and who had been under the care and protection of the State.
2 The applications were made by the relevant State authority and envisaged the parental authority held by that agency to be transferred to adult guardianship.
3 The young man suffered from a cognitive impairment. He had difficulty learning and retaining information, and applying knowledge that he had learnt.
4 He was a socially popular young man but with poor impulse control and emotional regulation, which often caused him to run into conflict with others or to engage in antisocial behaviours such as stealing and fighting.
5 He had recently been charged with a criminal offence.
6 The young man had also developed a relationship with a young woman and this was causing problems for his former foster parent with whom he had lived for eight years.
7 The State agency supported the living arrangement with the former foster parent and negotiations were taking place between the agency and the Disability Services Commission as to the level of funding and attendant support services that should be made available to the young man.
8 The Tribunal decided to appoint the Public Trustee as the young man's administrator and the Public Advocate as his guardian to decide with whom he should associate and to act as his guardian in respect of the criminal charge.
9 The former foster carer had not proposed herself as the young man's guardian because as guardian she would not be paid for his care due to the existing funding policy of the Disability Services Commission.
Background
10 These reasons relate to an application for guardianship in respect of CDM, a young man who, until he recently turned 18 years of age, had been in the care of the Department for Child Protection (DCP), formerly the Department for Community Development.
(Page 4)
11 The application for guardianship (together with an application for administration) had been made by DN, a social worker with DCP.
12 The relevant legislation is the Guardianship and Administration Act 1990 (WA) (GA Act).
13 The applications were heard over three hearings: 10 April 2007 (first hearing); 28 May 2007 (second hearing); and 9 July 2007 (third hearing).
14 The first hearing was attended by CDM, the applicant, DN, JS, former foster carer of CDM and with whom he still resides, EN, the birth mother of CDM, LH, clinical psychologist with the Disability Services Commission (DSC) and BT, the representative of the Public Advocate (Public Advocate).
15 The second hearing was attended by CDM, JS, DN and BT.
16 The third hearing was attended by DN and BT. Both CDM and JS did not attend, the former because it was reported he had recently got into some trouble and it was considered better if he attended his work, and the latter because she was recovering from an eye operation.
17 There was no objection by CDM or JS to the hearing proceeding, and both their views were represented by DN and BT.
18 At the first hearing, the Public Trustee was appointed CDM's plenary administrator for a period of three years. The application for guardianship was adjourned.
19 At the second hearing, the application for guardianship was again adjourned.
20 At the third hearing, the Public Advocate was appointed CDM's limited guardian for 12 months to decide with whom he is to associate, and to act as his guardian in respect of a criminal matter.
21 Brief oral reasons were given at the time in respect of the orders for administration and guardianship.
(Page 5)
22 The Public Advocate has sought written reasons for the decision to appoint her as CDM's guardian, and these reasons are provided pursuant to s 78 of the State Administrative Tribunal Act 2004 (WA) (SAT Act).
The question of CDM's capacity
23 Before the question of the need for a guardian can be considered, the Tribunal must first be satisfied that the person for whom an application for guardianship has been made has attained the age of 18 years; 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)(a) and s 43(1)(b) of the GA Act).
24 A person is presumed to be capable until the contrary is proved to the satisfaction of the Tribunal (s 4(2)(b) of the GA Act).
25 Three reports have been received which assist in the determination of whether CDM is a person who could have a guardian appointed. They are:
(1) 2 February 2004 DB, Psychologist with DSC
DB assesses CDM as meeting the diagnostic criteria for intellectual disability in respect of his adaptive behaviour and intellectual functioning (American Association of Mental Retardation (1992)).
(2) 5 March 2007 Dr PS, Child and Adolescent Psychiatrist
Dr PS states that CDM has an intellectual disability and suffers from post traumatic stress disorder, attention deficit disorder and behaviour problems. She states that CDM is slowly improving but that his cognitive ability will always be somewhat limited. She assesses him as not being able to make reasonable decisions about his personal health care, living situation and financial affairs.
(3) 3 April 2007 LH Clinical Psychologist with DSC (LH also gave oral evidence at the first hearing)
26 LH makes the following statements and assessment (as they relate to the application for guardianship):
(Page 6)
- • CDM lives at home with JS. It is planned that he will remain living with JS now that he is 18 years old.
• He recently lost his position at a sheltered employment agency due to his poor work practices.
• He is a socially popular young man who spends most of his time with friends, either in person or via telephone calls, text messages and e-mails.
• CDM's poor impulse control and emotional regulation often cause him to run into conflict with others, or to engage in antisocial behaviours such as stealing and fighting.
• He has difficulty learning and retaining information, and applying knowledge that he has learnt. He has particular problems with short term memory and using information presented in a sequential manner to solve problems that require step by step reasoning.
• He can be assisted to work through fairly concrete, everyday decisions in terms of choices available and the consequences of each choice. He is unable to make more abstract decisions, even with assistance.
• CDM is prescribed dexamphetamine medication and an antidepressant.
• He is not capable of making reasonable decisions in relation to his personal health such as medical and dental treatment and self care.
• If his accommodation placement with JS broke down, he would not be capable of making reasonable decisions for himself in relation to his living situation.
27 There is no challenge to these assessments by any of the parties. I am satisfied on the basis of the stated assessments that CDM meets all of the requirements of s 43(1)(b) of the GA Act (see above).
(Page 7)
Is CDM in need of a guardian?
28 Before a guardian can be appointed, the Tribunal must be satisfied that the person for whom an application has been made is in need of a guardian (s 43(1)(c) of the GA Act).
29 The determination of need is subject to the principles set out in s 4 of the GA Act. They are: that the primary concern shall be the best interests of the person; that a guardianship order shall not be made if the needs of the person could, in the opinion of the Tribunal, be met by means less restrictive of the person's freedom of decision and action and that, as far as possible, the Tribunal should ascertain the views of the person in the consideration of any matter.
30 If a guardianship order is made, it shall not be a plenary order if a limited order would, in the opinion of the Tribunal, be sufficient to meet the needs of the person, and any limited order should be in terms that impose the least restrictions possible in the circumstances on the person's freedom of decision and action.
Evidence and submissions
31 DN states that the application by DCP for guardianship is essentially to provide for the continuation of formal parental authority for CDM now that he is no longer a ward of the State (that stopped when he reached 18 years of age). DCP is concerned that CDM's current placement with JS is at high risk of failure. JS disputes this, saying that CDM has been with her now for eight years, and despite concerns, it is his wish that he stay with her. CDM confirms this; he accepts JS as a parental figure and in particular sees her as his "mother".
32 Despite the perceived risk of failure, DCP supports the placement with JS.
33 A newly developed situation has placed some pressure on CDM and his relationship with JS. He has begun a relationship with a young woman who is also a client of DSC. Her family does not support the relationship, which has become furtive. The young woman's family is placing great pressure on JS to curtail the relationship. Recently, both CDM and his girlfriend slept in a park to be together. JS says that she needs support to deal with the relationship and CDM's response to it.
34 DN says that DCP and DSC might need to consider accommodation for CDM and his girlfriend if the relationship continues and there is nowhere for them to stay (they are also not allowed to stay with JS as she is looking after two other foster children with special needs). That situation has not yet arisen, and it could be that if accommodation is required, CDM will agree to it.
(Page 8)
35 DCP is maintaining funding for CDM's care and support until that is taken over by DSC. There appears not yet to be a completed discharge plan for CDM agreed to by DCP and DSC. The Public Advocate says this is disappointing as there has been an expectation that planning would be well advanced by now. Both DN and LH (DSC psychologist) say that the DSC funding is currently unallocated as to the amount and what it can buy, pending the outcome of the applications before this Tribunal. The Public Advocate is unsure why this is the case as she is of the view that the planning can take place appropriately with CDM, JS and the nominated care agency, Uniting Care West. The Public Advocate says that Uniting Care West has yet to agree to be the service agency because the amount of funding is not yet clear.
36 The point of contention seems to be the cost of psychological services. DCP want a case management service for CDM that supports him and JS (and also provides a monitoring role). If DCP can be satisfied about this, then it is submitted that part of the guardianship application might not be needed.
37 After the termination of his previous employment, CDM has recently secured further supported employment. He is employed for five days a week.
38 DN says that DCP is concerned that CDM is at risk of ongoing contact with the criminal justice system. This is said to be an expected consequence of the type of people with whom he associates. In a recent incident, CDM was stopped by the Police, searched, and was found to have a knife in his possession (CDM is reported to have said he needs the weapon as he is being threatened by someone). DN says that he has been charged with a criminal offence.
39 JS says she will not propose as guardian, given that DSC will not pay her for the care of CDM under its existing policy ("Family Members as Paid Carers"). The Public Advocate explains that under the DSC policy, a guardian appointed by the Tribunal is included in the definition of "family member" and is therefore precluded from being a paid carer where DSC funds the care, unless special circumstances exist. An application for consideration of special circumstances has not been made with DSC at the time of the third hearing.
(Page 9)
40 In respect of the treatment CDM is currently receiving from the psychiatrist, Dr PS, DN states that JS takes CDM to his appointments, that she participates in the consultations, and that she has direct access to Dr PS when necessary. DN says that DCP has had some concerns about the extent to which JS implements the recommendations and medication regime prescribed by Dr PS; however, the Public Advocate states that JS has a long term relationship with the psychiatrist, as many of the children that have been (and are) in her care are seen by her.
41 DCP does not support the appointment of JS as guardian for CDM. DCP is facilitating a claim for criminal injuries compensation for CDM (this will be taken over by his appointed administrator), and part of the claim relates to an incident(s) whilst CDM has been in the care of JS. DSC maintains that JS would be in a position of a conflict of interest if she was appointed his guardian. JS denies the allegations put by DCP. Despite the claim, DCP continues to support CDM's placement with JS (see above).
The Tribunal's findings and determination in respect of the need for a guardian
42 CDM is a young man of 18 years who has been under the care and protection of the State and in the foster care of JS (he has lived with JS for eight years).
43 As a young adult, CDM is finding his place in the world; he is seeking relationships and is attempting to assert himself in ways that young males in our community do, with a mixture of bravado and vulnerability. He is challenging authority figures.
44 Unfortunately for CDM, his ability to deal with this phase of his life is compromised by his disability; he has difficulty learning and retaining information, and applying knowledge that he has learnt; he also has poor impulse control and emotional regulation that often cause him to run into conflict with others.
45 As a consequence, CDM requires greater oversight, care and control than most other young adults, and it is for that reason the application for guardianship has been made.
46 Because he has reached 18 years of age, CDM now has no-one with formal parental authority in his life. The question is whether such formal authority is required or whether the informal supports and arrangements are sufficient to meet his needs.
(Page 10)
47 I am not satisfied that there is sufficient evidence to suggest that CDM is in need of a plenary guardian, that described in s 45 of the GA Act as someone with the authority to assume all parental responsibility for him.
48 There is, however, in my view, sufficient evidence to support the appointment of a guardian with limited parental authority. That authority should be limited to the right to make decisions about with whom CDM should associate and to act as his guardian in respect of the current criminal charge. It seems to me that the other personal matters in his life which require ongoing decision-making can be satisfactorily dealt with (at least presently) through his long-standing living arrangement with JS and the support of DSC, DCP and the agency eventually funded by DSC to provide him with care and support. The principles stated in s 4(2)(c) and s 4(2)(d) of the GA Act should be allowed to prevail and CDM's freedom of decision and action curtailed only to the extent necessary in his current circumstances.
49 In respect of CDM's associations, I accept that CDM mixes with people whom, it may be argued, might not always have his best interests at heart. He is reported to be a popular young man, but his poor impulse control often causes him to run into conflict with others, or to engage in antisocial behaviours such as stealing and fighting.
50 In addition, CDM has recently formed a relationship with a young woman, and on the evidence, the relationship needs to be monitored and decisions made about the circumstances under which it can continue. As it currently stands, this seems to be beyond informal resolution. JS has said she needs help given she cares for two foster children (in addition to CDM) and therefore cannot contemplate the relationship occurring under her roof.
51 Under s 45(2)(f) of the GA Act, a plenary guardian (and by extension, a limited guardian under s 46) may decide with whom a represented person (the person for whom a guardian has been appointed) is to associate.
52 The framing of certain relationships that a person has in the phrase "with whom the represented person is to associate" is a notion that comes from the area of family law (see for example Anthony Dickey QC Family Law Fourth Edition, Lawbook Co 2002 at page 332: "the persons with whom the child may associate"; and at page 345: "make decisions concerning a child's friends and associates").
(Page 11)
53 In the relevant case law, the term "to associate with" or "association with" is used both in respect of significant others (parents, grandparents and other relatives) and more generally (people the child knows, children at the child's school) (see for example: In the Marriage of Fryda & Johnson (1979) FLC 90634; In the Marriage of Plows (1979) FLC 90172; In the Marriage of Horsley (1991) FLC 92-205; and Townsend v Department of Families, Youth and Community Care (1999) FLC 92842).
54 Guardianship orders made by this Tribunal and the former Guardianship and Administration Board are often framed in terms of the "contact" the represented person has with others and the extent of that contact (a term also found in family law).
55 If there is any distinction to be made between "associate" and "contact", it might be that that the former is an ambit term and the latter falls within it; the authority to decide with whom a person should associate recognises the world at large, and the authority to decide with whom the person has contact may refer to those people within the larger group with whom the person already has a relationship. If that is the case, then contact, as a function of a guardian, would most appropriately be used when referring to known relationships at the relevant time.
56 In the case of CDM, it is my view that a guardian is required to monitor, and where necessary and practical, to vet the relationships that he might develop from time to time. This would include not only the current relationship with the young woman, but also the more unstructured relationships he may form with his peers and which might at times lead him into trouble. In that respect, the function of deciding with whom he should associate is the proper authority. That function includes the right to decide the extent of any association.
57 The authority to act as guardian in respect of the current criminal charge that CDM faces, requires that he have legal advice and representation, something which, I am satisfied, he is unable to initiate and maintain in his own best interests. An appointed guardian will be in a position to advocate the extent necessary to ensure CDM's interests are protected in the criminal justice system.
58 It is likely the case that CDM would not support the appointment of a guardian, but it is my view that his need for protection (in the limited form of the proposed order) outweighs his wish to make certain decisions for himself.
(Page 12)
Who should be appointed guardian?
59 JS has said that she is unable to propose herself as guardian of CDM (despite the fact that he sees her as his parent) because as guardian, she would not be paid for his care due to the existing funding policy of DSC.
60 There is also the admission by JS that she is having difficulty in containing the relationship CDM has established with a young woman, and that she needs also to consider the needs of other foster children currently in her care.
61 DCP submits that JS is in a position of conflict if appointed guardian because of the claim for criminal injuries compensation made on behalf of CDM (see above). Despite the claim, DCP continues to support CDM living with JS, and the current negotiations with DSC and the care agency are premised on that living arrangement continuing for the present.
62 Under s 44 of the GA Act, a person must consent to act as guardian, and if there is no-one willing (and suitable) to act, then the Tribunal must appoint the Public Advocate.
63 JS is not willing to act as the formally appointed guardian of CDM for the reasons already stated. In that case, it is not necessary for me to make findings as to her suitability to act.
64 I appoint the Public Advocate as CDM's limited guardian with the functions of deciding with whom he should associate and to act as his guardian in respect of the criminal charge.
65 I make the order for 12 months on the basis that the circumstances of CDM are fluctuating and unpredictable and because the restrictions to his decision-making and actions should be reviewed regularly. It is of course possible that should his situation change for the worse, a more extensive order may then be needed.
Order
66 In the writing of these reasons, it has come to my attention that the order made on 9 July 2007 needs to be amended pursuant to s 83(1)(b) of the SAT Act to accurately reflect the authority that was intended to be given to the guardian in respect of the criminal charge reported to have been made against the represented person.
(Page 13)
67 The order is so amended and reads as follows:
1. The Public Advocate of Level 1, Hyatt Centre, 30 Terrace Road, East Perth in Western Australia be appointed limited guardian of the represented person with the following functions:
(a) to seek legal advice and representation and to generally advocate for the represented person in respect of any criminal charges and proceedings; and
(b) to decide with whom the represented person is to associate.
2. This order is to be reviewed by 9 July 2008.
I certify that this and the preceding [67] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR J MANSVELD, MEMBER
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