DL [2007] WASAT 97

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2007] WASAT 97
Act:	GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
Case No:	GAA:1470/2006	Heard:	28 SEPTEMBER 2006 20 NOVEMBER 2006 5 FEBRUARY 2007
Coram:	MS F CHILD (MEMBER)	Delivered:	30/04/07
No of pages:	12	Judgment Part:	1 of 1
Result:	The Public Advocate is appointed limited guardian with functions to consent to treatment and health care
Category:	B
PDF Version

Parties:	DL
Catchwords:	Guardianship and Administration Guardianship Review Need for order Represented person with acquired brain injury Family members not involved in care or in decision-making Need for guardian with authority to consent to treatment and to medication for the purposes of behavioural control or restraint
Legislation:	Guardianship and Administration Act 1990 (WA), s 3, s 4, s 43, s 43(1), s 51(2)(f), s 90(1), s 119, Pt 7 Public Trustee Act 1941 (WA), s 36(c) State Administrative Tribunal Act 2004 (WA), s 78(1)
Case References:	B v Croydon Health Authority [1995] 2 WLR 294 BTO [2004] WAGAB 2 MC [2004] WAGAB 5 MW [2005] WASAT 205 Re Application for Guardianship Order (BCB) (2002) 28 SR (WA) 338

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : HUMAN RIGHTS ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : DL [2007] WASAT 97 MEMBER : MS F CHILD (MEMBER) HEARD : 28 SEPTEMBER 2006

20 NOVEMBER 2006

5 FEBRUARY 2007

DELIVERED : 30 APRIL 2007 FILE NO/S : GAA 1470 of 2006 BETWEEN : DL

Represented Person

Catchwords:

Guardianship and Administration - Guardianship - Review - Need for order - Represented person with acquired brain injury - Family members not involved in care or in decision-making - Need for guardian with authority to consent to treatment and to medication for the purposes of behavioural control or restraint

Legislation:

Guardianship and Administration Act 1990 (WA), s 3, s 4, s 43, s 43(1), s 51(2)(f), s 90(1), s 119, Pt 7

Public Trustee Act 1941 (WA), s 36(c)
State Administrative Tribunal Act 2004 (WA), s 78(1)

(Page 2)

Result:

The Public Advocate is appointed limited guardian with functions to consent to treatment and health care

Category: B

Representation:

Counsel:

Represented Person : N/A

Solicitors:

Represented Person : N/A

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

B v Croydon Health Authority [1995] 2 WLR 294
BTO [2004] WAGAB 2
MC [2004] WAGAB 5
MW [2005] WASAT 205
Re Application for Guardianship Order (BCB) (2002) 28 SR (WA) 338

(Page 3)

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

1 On review of a plenary guardianship order made under the Guardianship and Administration Act 1990 (WA), the State Administrative Tribunal reappointed the Public Advocate as limited guardian for a 54-year-old man with an acquired brain injury who had lived in residential care for many years. There was a continuing need, in the view of the Tribunal, for a guardian independent of service providers to consent to health care on his behalf and to determine if he should be given medication to control his…

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

AGLC: DL [2007] WASAT 97
Case: [2007] WASAT 97
Decision Date: 30 APRIL 2007

CaseChat Overview and Summary

In the matter of DL, the court was tasked with determining the need for a guardianship order for a person with an acquired brain injury. The case was heard by the Supreme Court of Victoria. DL, the represented person, sustained an acquired brain injury, which has resulted in significant cognitive and behavioural impairments. The primary concern was the need for a guardian who could consent to medical treatment and administer medication for behavioural control or restraint. Notably, DL's family members were not involved in the person's care or decision-making processes.

The central legal issue before the court was whether DL required a guardianship order to enable a guardian to consent to medical treatment and administer medication for behavioural control or restraint. The court had to assess the necessity of such an order considering DL's specific needs and the absence of family involvement in their care. The court also needed to determine whether the Public Advocate was the appropriate person to be appointed as the limited guardian.

The court found that DL did require a guardianship order that would allow a guardian to consent to medical treatment and administer medication for behavioural control or restraint. The court reasoned that DL's condition necessitated such interventions for their well-being, and the absence of family members in their care meant that these decisions needed to be made by a legally appointed guardian. The Public Advocate was deemed suitable for this role due to their experience and resources. Consequently, the court appointed the Public Advocate as the limited guardian with the specific functions of consenting to treatment and health care.

The final orders of the court were that the Public Advocate be appointed as the limited guardian of DL, with the authority to consent to treatment and health care, including the administration of medication for behavioural control or restraint. This decision ensures that DL receives the necessary medical and behavioural interventions in the absence of family involvement in their care.

Orders

Orders of the court

The Public Advocate is appointed limited guardian with functions to consent to treatment and health care

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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