| JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : HUMAN RIGHTS ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : DEPARTMENT OF CORRECTIVE SERVICES and AP [2011] WASAT 213 MEMBER : JUSTICE J A CHANEY (PRESIDENT) MS D TAYLOR (SENIOR MEMBER)
DR A GARTON (SENIOR SESSIONAL MEMBER)
HEARD : 31 AUGUST 2011 DELIVERED : 31 AUGUST 2011 PUBLISHED : 10 MAY 2012 FILE NO/S : GAA 2213 of 2011 BETWEEN : DEPARTMENT OF CORRECTIVE SERVICES Applicant
AND
AP
Represented Person
PUBLIC ADVOCATE
Other Party
Catchwords: Guardianship and administration Need for guardian for limited purposes Prisoner lacking capacity to make decisions
(Page 2)
Legislation: Dangerous Sexual Offenders Act 2006 (WA)
Guardianship and Administration Act 1990 (WA), s 4, s 43, s 43(1), s 43(1)(a), s 43(1)(b), s 43(1)(c), s 45, s 64, s 64(1)(a), s 64(1)(b), s 110ZD
State Administrative Tribunal Act 2004 (WA), s 78 Result: Public Advocate appointed limited guardian for a period of six months
Application for appointment of administrator dismissed Category: B
Representation: Counsel:
Applicant : Mr M Thompson (Acting as Agent)
Represented Person : Self-represented
Other Party : Mr CS Bydder
Solicitors:
Applicant : Department of Corrective Services
Represented Person : N/A
Other Party : State Solicitor's Office
Case(s) referred to in decision(s):
Nil
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REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision 1 Applications for the appointment of a guardian and an administrator were made concerning a 44yearold Aboriginal man serving a sentence of imprisonment for an offence of sexual penetration without consent, committed in 2007, because issues had arisen concerning his ability to understand and participate in proceedings concerning him, pending in the Western Australian Supreme Court under the Dangerous Sexual Offenders Act 2006 (WA). 2 The Tribunal accepted the medical evidence that the represented person suffered from cognitive impairment to a significant degree that displaced the presumption that he was capable of looking after his own health and safety, making reasonable judgments in respect of matters relating to his person and managing his financial affairs. 3 The Tribunal was satisfied that a number of decisions needed to be made now on behalf of the represented person because of the proceedings in the Supreme Court. It appointed the Public Advocate to be the represented person's limited guardian for six months, to make decisions on his behalf in connection with the proceedings in the Supreme Court and any related matters. The Public Advocate was asked to clarify the arrangements in place for treatment decisions to be made by, or on behalf of, the represented person and to revert to the Tribunal in the event that she found that they did not meet his needs. 4 The Tribunal was also satisfied that a number of decisions that might need to be made on behalf of the represented person, were he to be released from prison, did not need to be made for so long as he remained in custody, because decisions concerning his welfare generally would be taken by the Department for Corrective Services. It found that the represented person had no need for an administrator and dismissed the application for one to be appointed. 5 Brief oral reasons were given for the orders made at the conclusion of the hearing. Those reasons form the basis of these written reasons, which are provided in response to a request from the Public Advocate pursuant to the provisions of s 78 of the State Administrative Tribunal Act 2004 (WA). (Page 4)
The proceedings in the Supreme Court 6 On 12 October 2010, the Director of Public Prosecutions for Western Australia (DPP) made an application to the Supreme Court under the Dangerous Sexual Offenders Act 2006 (WA) (DSO Act) for orders authorising continued detention for the represented person (AP) in prison following the expiration of his current prison sentence in February 2011. The DPP alleged that AP posed a 'serious danger to the community'. He said that, because of the nature and extent of AP's past offending, there would be a high and unacceptable risk that he would commit a serious sexual offence if he were to be released into the community. 7 An application for a permanent stay of the proceedings was made on AP's behalf by his lawyers, the Aboriginal Legal Service (ALS). AP's lawyers considered him to be capable of instructing them in the most general terms only. Their experience of AP caused them to believe that he suffered from an intellectual disability that rendered him unable to comprehend the complexities of the issues and process. AP's lawyers found him to be incapable of providing them with clear or coherent instructions. 8 On 24 February 2011, an interim detention order was made authorising AP's continued detention until further order. 9 On 17 June 2011, Dr SD, a consultant forensic psychiatrist, reported to the court following her assessment of AP. Her assessment included a review of the historical information about AP available in previous reports. She noted that AP had been seen by a mental health team visiting the Looma community in 2004 and had been diagnosed as suffering from 'an organic brain disorder with some cognitive impairment possibly related to a head injury in childhood'. She also noted that AP had been seen by a psychiatrist visiting Broome Prison in 2006, who had been asked to assess him in the context of 'his bizarre and largely mute behaviour following an alcoholic binge'. The report from 2006 concluded that AP had a complex set of behavioural and psychological problems that may approach psychotic depth during the withdrawal phase of his addiction cycle, and that he was likely to have mild cognitive impairment from years of alcohol, solvent and cannabis abuse. 10 Dr SD noted AP's extensive history of past offending, and that his current sentence of imprisonment was for a conviction for an offence of sexual penetration without consent committed in 2007. She concluded that AP is a person with cognitive impairment. Dr SD believes AP's cognitive deficits contribute to the risk he poses to others, because he has (Page 5)
poor impulse control and poor insight and judgment, especially when intoxicated. 11 Risk assessments of AP by other professionals independent of Dr SD found him to be at high risk of reoffending. 12 The conclusions reached by Dr SD about the nature and extent of AP's cognitive impairment provide evidence in support of the conclusions reached by AP's lawyers from their direct experience of trying to obtain instructions from him.
The proceedings in the Tribunal 13 Proceedings before the Tribunal were commenced after conferral between the DPP and the Public Advocate after receipt of Dr SD's report confirming AP's intellectual disability. 14 On 25 July 2011, the Department for Corrective Services (DCS) applied to the Tribunal for the appointment of a guardian and an administrator for AP. Whilst the application was made primarily because of AP's questionable capacity to participate in the proceedings in the Supreme Court, its ambit was expanded subsequently to include other decisions that might need to be made, in the event that AP were to be released from prison in the near future. These included complex issues relating to accommodation and contact with members of AP's family and community.
Issues arising under the Guardianship and Administration Act 1990 (WA) 15 The Tribunal considered that the following issues arose under the Guardianship and Administration Act 1990 (WA) (GA Act) concerning AP whilst he remained in prison: 1) Was AP able to make decisions about his personal wellbeing and about the proceedings that he is facing in court? 2) Did AP need assistance with his decisionmaking or someone to make decisions for him? 3) If AP needed assistance with his decisionmaking or someone to make decisions for him, in what areas was this assistance is required? (Page 6)
The submissions by DCS 16 The representative for DCS submitted that Dr SD's conclusions concerning AP's cognitive impairment, and information from the DPP (set out in a letter dated 21 July 2011), provided the evidence necessary to enable orders to be made. 17 He submitted further that AP's circumstances and future management were complex in the extreme because of his forensic history, and that a full exploration of possible alternatives to continued detention for AP was likely, which would include consideration of the possibility of his release into a community, with supervision. 18 The Tribunal was told that DCS officers had encountered obstacles already in trying to establish contact with people in the community who may need to be consulted or involved directly in any plans for AP's release from custody, because AP was unable or unwilling to consent to contact with relevant people being made and to an open conversation (about the risk he was likely to pose to the public on release). 19 The Tribunal was told that DCS was required to provide any prisoner in its care with the medical and health treatment he required.
The Public Advocate's submissions 20 Counsel for the Public Advocate submitted that there was an overwhelming body of evidence pointing to AP being incapable of making decisions about anything of any substance because of his cognitive impairment. 21 Whilst the Public Advocate agreed that a full exploration of possible alternatives to detention for AP was likely, she thought the role of a guardian should be constrained to the DSO Act proceedings in the Supreme Court and to facilitating information gathered in that context initially, because of the principles set out in s 4 of the GA Act that required the Tribunal to limit the restrictions placed upon a person's freedom of decision and action. 22 Counsel drew the Tribunal's attention to a comment made in a medical report that suggested AP's mental state must have deteriorated over time. 23 Counsel also submitted that any suggestion that a guardian be appointed under the GA Act to act as AP's guardian ad litem in the criminal proceedings was misconceived, as the reference to (Page 7)
'guardian ad litem' in s 45 of the GA Act was, of necessity, a reference to civil proceedings and not to criminal proceedings. Counsel submitted that, whilst the GA Act did not define the term 'legal proceedings', the concepts of next friend and guardian ad litem operated only in the context of civil proceedings. 24 Counsel submitted that AP received a small allowance as a serving prisoner and that there was no need at present for an administrator to be appointed for him, as he had no estate.
Principles to be observed 25 Under s 4 of the GA Act, the Tribunal must observe the following principles: (1) In dealing with proceedings commenced under this Act the State Administrative Tribunal shall observe the principles set out in this section. (2) The primary concern of the State Administrative Tribunal shall be the best interests of any represented person, or of a person in respect of whom an application is made. (3) Every person shall be presumed to be capable of (a) looking after his own health and safety; (b) making reasonable judgments in respect of matters relating to his person; (c) managing his own affairs; and (d) making reasonable judgments in respect of matters relating to his estate, until the contrary is proved to the satisfaction of the State Administrative Tribunal. (4) A guardianship or administration order shall not be made if the needs of the person in respect of whom an application for such an order is made could, in the opinion of the State Administrative Tribunal, be met by other means less restrictive of the person's freedom of decision and action. (5) A plenary guardian shall not be appointed under section 43(1) or (2a) if the appointment of a limited guardian under that section would be sufficient, in the opinion of the State Administrative Tribunal, to meet the needs of the person in respect of whom the application is made. (Page 8)
(6) An order appointing a limited guardian or an administrator for a person shall be in terms that, in the opinion of the State Administrative Tribunal, impose the least restrictions possible in the circumstances on the person's freedom of decision and action. (7) In considering any matter relating to a represented person or a person in respect of whom an application is made the State Administrative Tribunal shall, as far as possible, seek to ascertain the views and wishes of the person concerned as expressed, in whatever manner, at the time, or as gathered from the person's previous actions.
The legal framework 26 Section 43(1) of the GA Act provides for the appointment of a guardian for a person who: (a) has attained the age of 18 years; (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 (c) is in need of a guardian 27 Section 64 of the GA Act provides for the appointment of an administrator for a person who: The Tribunal's findings 28 The Tribunal accepted the medical and other evidence that AP suffers from an intellectual disability. It was not possible for the Tribunal to draw any clear conclusion about the aetiology of the impairment or the likely date of onset. The Tribunal noted that the material put before it (Page 9)
arose in the context of, and for the purposes of, criminal proceedings past and present. 29 The Tribunal accepted the medical evidence that AP suffers from cognitive impairment to a significant degree that renders him incapable of making decisions about matters arising in the context of the DSO Act proceedings and many aspects of his life. It was satisfied that the presumption of capacity in s 4 of the GA Act was displaced as a result of the nature and extent of AP's mental disability. 30 The Tribunal found that AP's imprisonment meant that decisions that might otherwise need to be made for him did not arise, by virtue of his incarceration. It rejected any suggestion that a guardian would require plenary powers in order to ensure that AP's best interests were protected. It considered AP's interests to be best protected by the appointment of a limited guardian who would have authority to make specific decisions related to the DSO Act proceedings. 31 The Tribunal found that there was a patent need for the appointment of a guardian to assist in the process of providing consent, where necessary, and to otherwise assist AP's lawyers in ensuring that sufficient information was obtained to enable his legal rights to be fully asserted and all options considered by the court. 32 Despite its conclusion that the evidence available currently justified a limited role for a guardian, the Tribunal was troubled by the possibility that a broader range of decisionmaking may be being overlooked, even in the present context, simply because there was noone to do it. It considered that AP might benefit from having somebody able to give a little more oversight generally to his circumstances. 33 The Tribunal considered whether AP required a guardian to make treatment decisions for him. It accepted the submission that a regime existed within the prison system that required serving prisoners to receive treatment as required, and had no reason to think AP would not receive appropriate treatment in prison. However, it wondered whether or not it would be in AP's best interests to have someone appointed who had a role in that regard, because the medical reports put before the Tribunal put in issue, at least at face value, the whole question of his fitness to stand trial in the first place. 34 The Tribunal accepted the submission that an application for a guardian ad litem under the GA Act to provide instructions in the criminal (Page 10)
proceedings is to be misconceived, for the reasons outlined by counsel for the Public Advocate. 35 The Tribunal was satisfied that AP needed a guardian for limited purposes only. AP required a guardian to seek legal advice and representation, and to advocate generally for him in respect of the present proceedings concerning him under the DSO Act. AP also required a guardian to consent to conversations about him taking place between DCS officers and people engaged in planning for his future in the event of his release into the community, and members of his family, community and other communities. 36 The Tribunal concluded that AP's best interests would be served if specific permission were given to enable discussions about him to take place to facilitate his defence of the application under the DSO Act and any other matter arising in the context of that application. 37 The Tribunal found that AP met the criteria for the appointment of a guardian to make decisions on his behalf required in s 43(1)(a), s 43(1)(b) and s 43(1)(c) of the GA Act. It was satisfied that AP is over 18 years of age, is incapable of looking after his own health and safety, is unable to make reasonable judgments in respect of the matters relating to his person, and is in need of oversight, care and control in the interests of his own health and safety and for the protection of others. 38 The Tribunal found that, whilst AP's cognitive impairment met the criteria for the appointment of an administrator required in s 64(1)(a) of the GA Act, the requirements of s 64(1)(b) of the Act were not met, as AP had no estate requiring administration.
Consent to medical treatment 39 The Tribunal accepted the submission made on behalf of the Public Advocate that there was no present need for a substitute decisionmaker to exercise this function because of all the statutory options available. It accepted that the statutory options had not been fully explored yet, not least because of AP's inability to provide consent to the disclosure of information about him to members of his family and community. The Tribunal accepted the position advanced by DCS and the Public Advocate that there appeared to be a willingness on the part of AP's family to take up the opportunity to make treatment decisions for him under the provisions of s 110ZD of the GA Act. (Page 11)
40 The Tribunal was told that a meeting would need to be convened with members of AP's family to discuss the means by which a family member might become the maker of treatment decisions for him, and that significant logistical problems involving people in remote communities in the NorthWest would need to be addressed, as these may make an informal decisionmaking arrangement impractical. The Public Advocate agreed to look into the adequacy of arrangements in place in relation to the provision of consent to treatment for AP, and agreed to come back to the Tribunal if her inquiry revealed a need for some other arrangement to be made. 41 The Tribunal considered AP's best interests would be served by making the order for a period of six months, given the limited nature of the appointment. It considered that a review of AP's position at that time would enable it to assess the situation as it then prevailed and determine if some alternative arrangement might be necessary in the circumstances.
Order 42 The Tribunal made the following order: 1. There is a declaration that the represented person is: (a) incapable of looking after his own health and safety; (b) unable to make reasonable judgments in respect of matters relating to his person; (c) in need of oversight, care or control in the interests of his own health and safety or for the protection of others; and (d) in need of a guardian. 2. The Public Advocate of Level 1, Hyatt Centre, 30 Terrace Road, East Perth, Western Australia, be appointed limited guardian of the represented person with the following functions: (a) To seek legal advice and representation on behalf of the represented person and to advocate generally for him in respect of the present proceedings concerning him under the Dangerous Sexual Offenders Act 2006 (WA) and to consent (Page 12)
(b) To enquire into the adequacy of present arrangements as to consent to medical treatment for the represented person. 3. This order is to be reviewed by 20 February 2012. |