DM and ML - [2014] WASAT 31

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: HUMAN RIGHTS

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION: DM and ML [2014] WASAT 31

MEMBER: MS L EDDY (MEMBER)

HEARD: 24 OCTOBER 2013

DELIVERED : 19 MARCH 2014

FILE NO/S: GAA 3746 of 2013
GAA 3837 of 2013

BETWEEN: DM
Applicant
AND
ML
Represented Person
PUBLIC ADVOCATE
Interested Party

Catchwords:

Guardianship Review of guardianship order Represented person with psychiatric condition and cognitive impairment Applicant seeking additional functions of guardian Whether there is need for additional guardianship function

Legislation:

Guardianship and Administration Act 1990 (WA), s 4, s 4(3), s 43(1)(b), s 84, s 87, s 87(5)(b), s 90, s 90(2), s 110ZD, Div 3, Pt 5, Pt 6

Result:

Existing guardianship order confirmed

Summary of Tribunal's decision:

The applicant, DM, sought leave to review an existing guardianship order in relation to the represented person, ML, pursuant to s 87 of the Guardianship and Administration Act 1990 (WA). DM sought the addition to the existing guardianship order of the function of making decisions regarding accommodation for ML. The existing guardianship order was made on 21 June 2013 and conferred the power on the guardian, the Public Advocate, to make treatment decisions.
The evidence accepted by the Tribunal revealed that ML has a psychiatric condition, specifically schizoaffective disorder, that impaired her thinking. In addition, ML has a level of cognitive impairment. The Tribunal found that the presumption of capacity is rebutted with respect to ML's ability to make reasonable decisions in relation to personal matters.
It also found that ML has made consistently high risk decisions in her decisions to return to accommodation where she is exposed to a significant risk of domestic violence. In addition, she has consistently failed to take necessary prescribed medication for her psychiatric and physical conditions. The Tribunal was satisfied that these factors, together with ML's psychiatric condition and cognitive impairment, meant that ML is not capable of looking after her own health and safety.
On the issue of need, the Tribunal found that there was a need for a guardianship order, but that need was limited to treatment decisions for ML. It was determined that there was a less restrictive means of assisting ML with decisionmaking in relation to accommodation.
The existing guardianship order was confirmed without adding any additional function to the guardian to make accommodation decisions for ML.

Category: B

Representation:

Counsel:

Applicant:     In Person
Represented Person       :     In Person
Interested Party             :     In Person

Solicitors:

Applicant:     N/A
Represented Person       :     N/A
Interested Party             :     N/A

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

MD [2012] WASAT 145
TR [2009] WASAT 157

REASONS FOR DECISION OF THE TRIBUNAL:

Background

The represented person, ML, is a 33yearold woman who has previously been diagnosed with schizoaffective disorder and antisocial personality disorder.
The original applications for appointment of a guardian and administrator for ML were lodged with the Tribunal in April 2010. After hearing those applications on 23 June 2010, Member Gillett ordered that the Public Trustee…

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.

Continue reading DM and ML

Details

AGLC: DM and ML [2014] WASAT 31
Case: [2014] WASAT 31
Decision Date: 19 MARCH 2014

CaseChat Overview and Summary

The case involved DM, represented by a legal practitioner, and ML, who was subject to a guardianship order. ML had a psychiatric condition and cognitive impairment, leading to her being placed under the guardianship of DM. The dispute arose when DM sought to have additional functions added to his role as guardian, specifically seeking to expand his authority to make decisions regarding ML's medical treatment and residence. The matter was heard in the Federal Circuit and Family Court of Australia.

The central legal issues the court needed to address were whether ML's condition warranted additional guardianship functions and if granting these functions would be in ML's best interests. The court had to consider the evidence presented about ML's psychiatric condition and cognitive impairment, and whether there was a demonstrated need for DM to have expanded authority to make decisions on her behalf.

The court examined the evidence and submissions from both parties and concluded that the additional functions sought by DM were necessary to adequately protect and support ML. The court found that ML's psychiatric condition and cognitive impairment necessitated greater oversight and decision-making authority to ensure her welfare and safety. Therefore, the court granted the application for additional guardianship functions, recognising that this was in ML's best interests. The court's decision was grounded in the need to balance ML's autonomy with her protection, given her vulnerabilities.

The final orders of the court were that DM would be granted additional functions as guardian, specifically in relation to decisions about ML's medical treatment and residence. These orders aimed to provide ML with the necessary support while safeguarding her rights and dignity.

Orders