EML
[2009] WASAT 191
•30 SEPTEMBER 2009
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: HUMAN RIGHTS
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: EML [2009] WASAT 191
MEMBER: MR J MANSVELD (MEMBER)
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 30 SEPTEMBER 2009
FILE NO/S: GAA 1828 of 2009
BETWEEN: EML
Former represented person
Catchwords:
Guardianship and administration - Inspection of documents - Legislative intent of Guardianship and Administration Act 1990 (WA) - Public policy underpinning inspection regime - Cogent reasons needed to inspect documents
Legislation:
Guardianship and Administration Act 1990 (WA), s 43, s 64, s 112(1), s 112(2), s 112(4), Sch 1 cl 12(1)
Result:
The application is refused
Category: B
Representation:
Counsel:
Former represented person : N/A
Solicitors:
Former represented person : N/A
Case(s) referred to in decision(s):
MB [2004] WAGAB 25
Re MM (2001) 28 SR (WA) 320
Re The Full Board of the Guardianship and Administration Board [2003] WASCA 268
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
An application for release of documents on a file held by the Tribunal was made pursuant to s 112(4) of the Guardianship and Administration Act 1990 (WA).
The application was made by the executrix of the last known will of a person who had, prior to her death, been the subject of an order for administration made under the Guardianship and Administration Act 1990 (WA).
The applicant had made the application because one of the beneficiaries of the deceased's estate was challenging the validity of the will on the basis of an allegation that the deceased did not have testamentary capacity to make a will.
The Tribunal decided not to allow the application as the applicant did not provide sufficiently cogent reasons to warrant the exercise of the discretion available under s 112(4).
The Guardianship and Administration Act 1990 (WA) was designed to protect people with disabilities which prevented them from making reasonable judgments about their personal life and financial estate. The legislation was not related to the administration of estates of deceased persons.
In proceedings before the Tribunal, information was generally provided by professionals and other people, including family and friends of a person with a disability, in a candid manner and which often contained sensitive material and contentious opinion.
The Tribunal considered it important to the integrity of the Tribunal's processes that the providers of information did so in the knowledge that it would only be used in other forums in limited circumstances.
Application
An application for release of documents on a file held by the Tribunal has been made pursuant to s 112(4) of the Guardianship and Administration Act 1990 (WA) (GA Act).
For the purposes of these reasons the name of the applicant and the former represented person will be anonymised, consistent with the practice of the Tribunal in respect of applications made under the GA Act, to avoid identification of parties to the proceedings (see Sch 1 cl 12(1) of the GA Act).
The application has been made by the executrix of the last known will of EML (now deceased) who was also a party to the proceedings under the GA Act when orders for administration were made for the estate of EML in 2005 and 2006.
The application is framed as follows:
The Applicant is the executrix of the last will of [EML] dated 13 December 2005. One of the beneficiaries of the deceased's estate is challenging the validity of the will on the basis of an allegation that the deceased did not have testamentary capacity to make a will. Lack of testamentary capacity is claimed because orders were made by the State Administrative Tribunal ('SAT') appointing [names deleted] as joint plenary administrators of the deceased on 11 November 2005 [reference number deleted].
However, on 31 March 2006 the orders of 11 November 2005 were revoked and a new plenary administrator was appointed by SAT being [name deleted] [reference number deleted].
Accordingly, it is important for the Applicant to obtain all opinions, reports and guides of doctors, social workers and carers relating to the appointment of the administrators and the transcripts of the above SAT proceedings to establish whether or not the deceased had testamentary capacity at the time the last will was signed.
The order sought by the applicant is:
That the applicant and the applicant's legal representative be authorised access, inspect, and take copies of all documents or materials (including without limitation, any opinions reports or guides of doctors, social workers or primary carers) on the SAT files for the above proceedings which are in relation to the testamentary capacity of the deceased, [EML].
Section 112(4) of the GA Act
The Full Board of the former Guardianship and Administration Board (Full Board), when it considered an application for review of a refusal of inspection under s 112(4), made the following statements in respect of the operation of that section. See MB [2004] WAGAB 25 at [34] (MB):
The circumstances in which a person is entitled to inspect or have access to documents or other materials held by the Board are limited. This is to be expected in the administration of an Act that provides for the guardianship of adults who need assistance in their personal affairs and the administration of the estate of persons who need assistance in their financial affairs. … Documents and other materials held by the Board very often go to matters that are highly confidential in respect of the health and safety of the person who may be in need of a guardianship order. In those circumstances it is to be expected that only a limited class of persons would ordinarily be entitled to inspect documents held by the Board.
Later, at [35], [59] and [60], the Full Board restated the policy underpinnings of the provision:
… As observed by the Board on an earlier occasion, the provisions of s 112 reinforce two important policies: firstly, the protection of the privacy of the person involved in the proceedings before the Board and in particular a proposed represented person or a represented person; and secondly, the public interest in the integrity of the Board processes which relies on the ability to obtain sensitive information from a variety of sources: see Re MM (2001) 28 SR (WA) 320 …
…
We agree with the observation of the Board in Re MM (supra), at 332, that s 112(4) provides the Board with a broad discretion on the application of any person or on its own initiative to allow inspection of or access to documents lodged with or held by the Board for the purposes of any application.
We also agree with the further expression of opinion of the Board in Re MM, at 332, that s 112(4) is not limited in its terms and, in an appropriate case, may include inspection or access to relevant documents or materials for purposes other than proceedings before the Board, although the circumstances in which the Board would ordinarily consider exercising this power may be considered limited. As the Board said in Re MM, at 332:
'… given the sensitive and confidential nature of much of the material held by this Board, we are of the view that where an applicant requests the Board to exercise its discretion under s 112(4) for purposes not related to proceedings before the Board, he or she must provide very cogent reasons and demonstrate a particular need as to why the inspection should be allowed (see generally DeHass v Murcia and Associates, Supreme Court of Western Australia Library No 980633, per Templeman J.) It is not sufficient to rely on a general desire to be informed.'
When considering the nature of the discretion to allow access under s 112(4), the Full Board considered circumstances when this discretion might be exercised by the Board (and now the Tribunal) at [66]:
… we think there are good reasons, relating to good public administration, why the Board's power to grant access to relevant documents and materials under s 112(4) should not be construed narrowly. It is possible to envisage a number of circumstances in which, for example, persons charged by law with the responsibility to conduct investigations in the public interest may seek to inspect documents or materials that were lodged with and are held by the Board for the purpose of an application. The Board should be able to determine on an application-by-application basis whether the request for access by a person should be granted. But as the Board said in Re MM (supra), the reasons advanced in support of a request for access under s 112(4) will need to be cogent and be justified on a 'need to know' basis.
The Full Board considered that there is a requirement that each application under s 112(4) be assessed and determined application by application. I respectfully agree with the position adopted by the Full Board.
The Tribunal's decision and reasons
I have decided not to allow the application for the following reasons.
There are a number of issues that go to the heart of the inspection regime envisaged by the GA Act. They are: the legislative intent of the GA Act; the information that is provided to the Tribunal to assist in the achievement of the purpose of the legislation; the right to inspect documents and materials within that framework; and finally, the use of the discretion given in s 112(4).
EM Heenan J said in the decision of the Full Court of the Supreme Court in Re The Full Board of the Guardianship and Administration Board [2003] WASCA 268 at [43] and [44]:
… the Guardianship and Administration Act is intended to 'provide for the guardianship of adults who need assistance in their personal affairs, for the administration of the estates of persons who need assistance in their financial affairs ... and to make provision for a power of attorney to operate after the donor has ceased to have legal capacity, and for connected purposes' (see the long title to the Act). From this, and an examination of the entire Act, it is obvious that the legislation is designed for the protection of adult persons whose faculties may be impaired, for any reason, and who are therefore in need of protection and assistance so as to ensure that their financial affairs and other welfare is not jeopardised by improvident, or ill-considered personal decisions or action, or by unscrupulous or ill-advised influence of relatives, friends and others who may deliberately or inadvertently exploit the vulnerability of the person in need of assistance and protection.
… The emphasis is on conserving the property and financial resources of the disabled person to ensure that they are available for his or her own needs, welfare and enjoyment and are not dissipated. These seem to be the primary objectives of the legislation and all the provisions of the Act can be seen to have meaning and effect as leading towards the achievement of those purposes. …
The GA Act is not related to the administration of estates of deceased persons.
To fulfil the intention and objectives of the GA Act, the Tribunal relies upon the provision of information to it that is forthright and that will often contain sensitive material and contentious opinion. The information is provided by medical practitioners, allied health and other professionals, and family and friends of the person for whom an application for the appointment of a guardian or administrator has been made. The information is often provided in circumstances where the person for whom an application is made is unable, or only partially able, to contribute to the hearing process and give answer to the information made available to the Tribunal on their behalf.
The information is provided to enable the Tribunal to make a determination on an application that accords with the substantial merits of the question to be resolved, for example, whether it is in the best interests of the person that a guardian or administrator be appointed in respect to their personal and financial affairs.
When an application is being heard by the Tribunal, the inspection regime is covered by s 112(1) and s 112(2) of the GA Act. This allows for a limited number of people to inspect documents and materials held by the Tribunal in the context of submitting to the Tribunal information and opinion that will assist in the decision to be made on a particular application.
Once an application is decided by the Tribunal, a person who provided information would generally expect that information to be maintained within the boundaries of the application and hearing process, which would include a review or appeal of the Tribunal's determination. As identified in Re MM (2001) 28 SR (WA) 320 and confirmed in MB, this is important in maintaining the integrity of the processes of the Tribunal, to ensure that people continue to feel confident in providing candid information to the Tribunal without fear that the information will, as a matter of course, find its way into other forums.
It is not usual, for the above reasons, for the Tribunal to allow access to documents held on a former represented person's file when the application for access under s 112(4) of the GA Act is in respect of that person's will. The medical opinion and assessments held on file do not generally go directly to the question of a person's testamentary capacity as this is not the relevant test in the Tribunal's determination of whether a person is in need of a guardian and/or administrator (see s 43 and s 64 of the GA Act). Medical records of the person which relate to the diagnosis may be able to be obtained from the creators of those records through the appropriate processes of the courts.
In my view, the present application as it relates to the inspection of the file of EML does not provide sufficiently cogent reasons to satisfy me that the discretion available under s 112(4) of the GA Act should be exercised in the applicant's favour so as to displace the reasonable expectation of people who provide information to the Tribunal that it is to be used only in GA Act proceedings.
I am also of the view that the present application as it relates to access to the file of EML, is not in the nature of circumstances that the Full Board envisaged in MB which might lead to the exercise of the discretion in favour of the applicant, such as an 'official investigation in the public interest'.
Order
The application is refused.
I certify that this and the preceding [27] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR J MANSVELD, MEMBER
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