DL

[2023] WASAT 66

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION:   DL [2023] WASAT 66

MEMBER:   PRESIDENT PRITCHARD

MR R POVEY, MEMBER

MS C SADLEIR, MEMBER

HEARD:   29 JUNE 2023

DELIVERED          :   21 JULY 2023

FILE NO/S:   GAA 1718 of 2023

DL

Represented Person

DL

Applicant

Catchwords:

Guardianship and Administration Act 1990 (WA) s 17A review of decision by single member of Tribunal – Whether requirements for appointment of a guardian are met – Capacity to make decisions in relation to personal matters – Whether capacity assessed by reference to represented person's ability to make decisions independently of others – Whether there is a need for a guardian

Legislation:

Guardianship and Administration Act 1990 (WA), s 4(2), s 4(4), s 4(7), s 17A, s 43, s 43(1)(a), s 43(1)(b), s 43(1)(c), s 44, s 110ZD
State Administrative Tribunal Act 2004 (WA) s 27(1), s 27(2)

Result:

Private limited guardian appointed

Category:    B

Representation:

Counsel:

Represented Person	:	In Person
Applicant	:	In Person

Solicitors:

Represented Person	:	In Person
Applicant	:	In Person

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

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

(These reasons were delivered contemporaneously and have been edited from the transcript to correct grammatical errors or infelicity of expression)

1. This is an application brought by DL (Mr L), with the assistance of Ms D from Developmental Disability WA, for a review pursuant to s 17A of the Guardianship and Administration Act 1990 (WA) (GA Act) of a decision made on 27 March 2023 by a single Member of the Tribunal.  The Member appointed the Public Advocate of Western Australia as the limited guardian for Mr L, with authority to make decisions concerning medical treatment (treatment decisions) and the services to which Mr L should have access (services decisions); and gave the guardian authority to enquire of and obtain information from medical and allied health professionals.

2. The primary issue, and the focus of the hearing today, has been on whether Mr L meets the requirements of s 43 of the GA Act for the appointment of a guardian, and whether there is a need for a guardian.[1]  The subsidiary question that then follows from the outcome of the primary issue is who should be appointed a guardian, if one is to be appointed.[2] 

   [1] GA Act, s 43(1)(c).

   [2] GA Act, s 44.

3. For the reasons which follow we have concluded that the requirements of s 43 of the GA Act are satisfied and that Mr L does need a guardian, but that the only decision-making authority presently required is in relation to services decisions (and not treatment decisions).

4. We have also decided that Mr W should be appointed as Mr L's limited guardian in respect of the services decisions function.  Mr W is willing and able to perform that role.

Background

1. Mr L is a 59-year-old man who lives with an intellectual disability that he has had from birth.  He has been seen by a number of doctors to whose reports we will refer later in these reasons.

2. Mr L is currently living in accommodation with his brother, which he organised himself.

3. It was apparent at the hearing that Mr L has a lot of formal and informal supports in his life.  He has family; he has friends, like Mr W, who attended the hearing to give support to him; and he is assisted by service providers funded by the National Disability Insurance Scheme (NDIS).  The panel was grateful for the evidence that was given by Mr N, who is one of those service providers and who attended the hearing.

4. Mr L is also assisted by passionate advocates, like Ms D from Developmental Disability WA, who assisted Mr L to put his case to the Tribunal.  The panel was grateful for that contribution as well.

Nature of the review

1. This review is a complete review.[3]  We stand in the shoes of the decision-maker at first instance.  We do not have to find whether the Member made a mistake or an error. Instead, we have to decide what is the correct and preferable decision.[4] We do that by applying the requirements of the GA Act.

   [3] State Administrative Tribunal Act 2004 (WA) (SAT Act), s 27(1).

   [4] SAT Act, s 27(2).

2. In doing so, we have taken into account our primary concern under the GA Act namely, to act in the best interests of Mr L.[5] In applying the requirements of s 43 of the GA Act, we have also started with the presumption that Mr L has the capacity to make decisions about personal matters, and we must proceed on the basis of that presumption unless the contrary is proved to our satisfaction, on the evidence.[6]

   [5] GA Act, s 4(2).

   [6] GA Act, s 4(3).

Whether the requirements of s 43 of the GA Act have been met

1. The Tribunal can only make a guardianship order in respect of a person if satisfied that the person has attained the age of 18 years, (as Mr L clearly has)[7] and that the person is:[8] 

   (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.[9]

   [7] GA Act, s 43(1)(a).

   [8] GA Act, s 43(1)(b).

   [9] GA Act, s 43.

2. A large volume of medical evidence was before the Tribunal. We refer, in particular, to two medical reports provided by Dr J, one dated 15 August 2022 and an earlier one dated 11 February 2022.  There is no doubt about the fact that Mr L has an intellectual disability.  However, there was some uncertainty on Dr J's part in relation to Mr L's capacity to make decisions.  In his reports,[10] Dr J expressed some uncertainty about whether simpler kinds of decisions might be able to be made by Mr L, although he expressed no uncertainty about Mr L's incapacity to make more complicated decisions.

   [10] Hearing Book, pages 54 – 58, 65 – 70.

3. In evidence that was given by Dr J at the hearing before the Member on 14 February 2023, Dr J explained that he would, 'have some anxiety about [Mr L's] capacity for medical decisions, for example, without a lot more input and oversight'.[11] When that evidence was explored, it is apparent that his concern pertained to complex medical decisions rather than to simple decisions like taking medication for ordinary, everyday kinds of conditions.  For instance, Dr J said he would have 'misgivings'[12] about Mr L's capacity to make a decision about surgery and said that he did not think that Mr L had 'the capacity to understand a severe illness that would need detailed discussion'.[13]  It thus does not appear that Dr J's concern pertained to 'everyday' kinds of decisions. In short, Dr J's evidence supports the conclusion that Mr L may have some capacity to make decisions which are at the very simple end of the decision-making spectrum, but not in relation to complex personal decision-making.

   [11] ts 1 December 2022, page 13.

   [12] ts 1 December 2022, page 15.

   [13] ts 1 December 2022, page 15.

4. That is consistent with the evidence we heard from other witnesses.  For example, Mr N expressed the opinion that Mr L would have difficulty making decisions on his own, in relation to the more complicated demands of the NDIS system.  We think the same conclusion would follow in relation to complex medical treatment decisions.

5. Dr J's opinions are also consistent with the opinions set out in the reports of Mr L's occupational therapist, Ms G, who gave detailed consideration to Mr L's situation.  Those opinions are also consistent with the neuropsychological reports that have been provided to the Tribunal in the course of previous hearings concerning Mr L.

6. We turn, then, to make findings in relation to the question of Mr L's decision-making capacity.  We commence with the observation that there is no doubt that Mr L has lots of support from friends and from service providers. In relation to simple, everyday decisions, that support permits Mr L to have the fullest degree of autonomy that is possible.

7. However, the GA Act requires the Tribunal to consider a person's capacity to make decisions independently of others. That is not to deny that adults often seek input from others to make decisions, including in relation to personal matters. They may receive information from medical practitioners, or from experts in different areas. They may seek information from family or friends. But at the end of the day, the individual then makes the decision about personal matters themself. The question that the GA Act[14] requires the Tribunal to consider is whether Mr L is capable of making decisions about his own health and safety, or making reasonable judgments in respect of matters relating to his person, or is in need of oversight, care or control in the interests of his own health and safety. While he might be able to make simple kinds of decisions (particularly with assistance), we are satisfied that Mr L does not have capacity to make complex decisions of that kind. We consider that the presumption in respect of capacity for decision‑making has been displaced by the evidence to which we have referred and we are satisfied that the requirements of s 43(1)(b) are met.

   [14] GA Act, s 43(1)(b).

8. We turn, then, to the question of need.  On the evidence, there were two areas of decision-making where it appeared likely that more complex decisions might be required in relation to Mr L.  The first was in relation to medical treatment and the second in relation to services.  We note that Mr L does not need any decisions to be made in relation to accommodation because that issue has been resolved for the time being.

9. In considering the question of need, we have also borne in mind the requirement under the GA Act to consider the least restrictive options so as to provide the greatest freedom of decision‑making autonomy, where possible.[15]

   [15] GA Act, s 4(4).

10. In relation to the question of medical treatment, it is clear from the evidence that Mr L is able to get to the doctor.  On the evidence of Dr J, Mr L can listen to the advice of his medical practitioners in relation to simple kinds of conditions. As we have said, while Mr L may have capacity to make simple decisions of that kind, we are satisfied that he could not make more complex decisions in relation to medical treatment.

11. In that context, however, Ms D made the persuasive submission that there was no present need for a substitute decision-maker in relation to any kind of more complex treatment decisions.  We accept that submission.  There is no evidence that Mr L has any underlying medical conditions that are likely to require complex decisions to be made in the foreseeable future.  If, in the future, a more complex decision is required, then there might be a need for a different view to be taken. For the moment there is nothing in the evidence that provides any basis for concluding that there is likely to be a need for complex treatment decisions to be made. 

12. Having said that, in circumstances where there may not be a substitute decision-maker available for Mr L for the purposes of treatment decisions under s 110ZD of the GA Act (or where there may be doubts as to whether a substitute decision maker under that section would be available) we have some reservations about whether a finding that there is no need for a guardian to be appointed in relation to treatment decisions would be in Mr L's best interests. After all, circumstances requiring complex treatment decisions can sometimes arise unexpectedly. On the other hand, Ms D says, rightly, that the Tribunal can deal with urgent applications for orders under the GA Act.

13. Given Mr L's apparent present good health (other than for the need to control his weight), we have concluded that there is no basis for a finding that Mr L has a need for a guardian in relation to complex treatment decisions at this time.  If that situation changes, an application to the Tribunal may need to be made either by friends or by service providers who assist Mr L.

14. The position is different in relation to services.  The oral evidence of both Mr N, and of Ms M (from the Office of the Public Advocate), which we found very helpful, confirmed that navigating the NDIS system can be complex. Mr N's evidence was that if Mr L was starting out afresh, he could not make decisions in relation to the NDIS system himself.  That evidence was consistent with the complexity of the system described by Ms M.[16]

    [16] Hearing Book, page 185.

15. We appreciate that if we now decided not to appoint a guardian for Mr L at all, he would not be starting completely afresh because he is already provided with support from those around him.  Nevertheless, we are satisfied, on the evidence, that the NDIS system, from which Mr L receives funding, involves complex decision-making at times.  For example, it might involve complex decision-making in relation to the terms of agreements with service providers.  Alternatively, it may involve negotiating a replacement for a service coordinator if an existing coordinator steps aside for one reason or another.

16. We are satisfied, on the evidence, that there is a need for Mr L to have a decision-maker with authority to make decisions on his behalf in this context. Therefore, in relation to services decisions, we find that Mr L is in need of a guardian. 

Who should be appointed Mr L's guardian?

1. The question, then, is who should be appointed Mr L's guardian. The GA Act provides that the Tribunal can only appoint a guardian if the person is over the age of 18 years, has consented to act, and, in the Tribunal's opinion, will act in the best interests of the represented person; is not in a position where their interests conflict or may conflict with the interests of the represented person; and is otherwise suitable to act as guardian.

2. We are satisfied that Mr W is more than 18 years of age, and he stated that he is willing to act as Mr L's guardian.  He has known Mr L for about 20 years, has had some association with Mr L and his family, and knows of Mr L's relatives and of the friends who are present in his life at the moment.  It is clear to us that Mr W cares for Mr L as a friend and is willing to provide support to him. Mr W has provided guidance to Mr L in the past and he is willing to look after him when he might be vulnerable to risks from other people.

3. Having considered Mr W's position, we are satisfied that he is suitable to act as a guardian.  We found Mr W to be articulate and caring.  There was no evidence to suggest any conflict between his interests and those of Mr L. There were no competing demands on Mr W's time which might be thought to interfere with his ability to act as a guardian if a services decision is required to be made.  We are confident that Mr W would be able to navigate the potentially difficult services decisions which might be required, in discussion with Mr L.  The only concern we had pertained to how Mr W would be able to deal with possible disagreement from Mr L in relation to services decisions.  Mr W was confident that he would be able to deal with any differences of view with Mr L.

4. Taking all of these matters into account, we are satisfied that Mr W is suitable for appointment as the limited guardian for Mr L in relation to services decisions.  We want to emphasise, however, that if the circumstances change, or if, at any stage, Mr W feels that he is not able to continue as guardian, he is able to make an application to the Tribunal to have the guardianship order set aside and different orders can be considered at that point.  The same observation applies in respect of any of the service providers or other people providing support to Mr L.  That is, if circumstances arise whereby the Tribunal's order needs to be changed then an application can readily be made to the Tribunal.

Duration of the guardianship order

1. We turn, finally, to the duration of the order that should be made. The GA Act provides that the Tribunal can make an order for a maximum of five years. Ms D submitted that a short‑term order should be made, if an order was to be made at all, to see how Mr L fared.

2. We are, on the contrary, of the view that it would be in Mr L's best interests for an order of five years' duration to be made, simply because that will provide stability and certainty in the arrangements for Mr L.  If something changes, an application can be made, of course, within that timeframe.

Mr L's views

1. In considering each aspect of this review, at all times we have taken into account Mr L's very strongly put view, in his evidence before the Tribunal, and in the submissions Ms D made on his behalf, that he does not consider that he requires a guardian and that he does not consider that he needs any help in relation to decision-making.

2. While the GA Act requires the Tribunal to take into account Mr L's views,[17] and while we have done so, the GA Act does not compel the Tribunal to accept those views in circumstances where the evidence supports a contrary conclusion. That is the case here. We have not been able to accept Mr L's view that he does not require a guardian, having regard to the medical evidence as to his capacity, and having regard to the evidence we have discussed in relation to his need for a guardian.

   [17] GA Act, s 4(7).

Orders

1. In all of those circumstances, we will make the following orders:

   1.The orders made on 27 March 2023 are set aside and the following orders are made.

   2.The Tribunal declares that the represented person, Mr L, 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; and

   (d)in need of a guardian.

   3.Mr W is appointed limited guardian of the represented person with the following functions:

   (a)to determine the services to which the represented person should have access; and

   (b)the guardian is authorised to enquire of and obtain information from any medical practitioner and allied health professional in the conduct of the function granted in this order.

   4.The guardianship order is to be reviewed by 28 June 2028.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.

TH

Research Associate to the Honourable Justice Pritchard

20 JULY 2023