G AND J
[2006] WASAT 324
•7 NOVEMBER 2006
G AND J [2006] WASAT 324
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2006] WASAT 324 | |
| GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) | |||
| Case No: | GAA:2204/2006 | 4 NOVEMBER 2006 | |
| Coram: | MS J TOOHEY (SENIOR MEMBER) | 7/11/06 | |
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Application withdrawn | ||
| B | |||
| PDF Version |
| Parties: | G J |
Catchwords: | Guardianship Consent to medical treatment – Operation of s 119 – Applicant the unpaid carer of the proposed represented person Authority to consent to medical treatment conferred by s 119 – Section 119 a less restrictive means of meeting the needs of the proposed represented person than a formal appointment – No need for a guardian to be appointed – Application withdrawn |
Legislation: | Guardianship and Administration Act 1990 (WA), s 3, s 4, s 119, s 119(3), s 41(3)(a), s 41(3)(b) State Administrative Tribunal Act 2004 (WA), s 44 |
Case References: | Nil Nil |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : HUMAN RIGHTS ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : G AND J [2006] WASAT 324 MEMBER : MS J TOOHEY (SENIOR MEMBER) HEARD : 4 NOVEMBER 2006 DELIVERED : 7 NOVEMBER 2006 FILE NO/S : GAA 2204 of 2006 BETWEEN : G
- Applicant
AND
J
Proposed represented person
Catchwords:
Guardianship - Consent to medical treatment – Operation of s 119 – Applicant the unpaid carer of the proposed represented person - Authority to consent to medical treatment conferred by s 119 – Section 119 a less restrictive means of meeting the needs of the proposed represented person than a formal appointment – No need for a guardian to be appointed – Application withdrawn
Legislation:
Guardianship and Administration Act 1990 (WA), s 3, s 4, s 119, s 119(3),
s 41(3)(a), s 41(3)(b)
State Administrative Tribunal Act 2004 (WA), s 44
(Page 2)
Result:
Application withdrawn
Category: B
Representation:
Counsel:
Applicant : Self-represented
Proposed represented person : Self-represented
Solicitors:
Applicant : Self-represented
Proposed represented person : Self-represented
Case(s) referred to in decision(s):
Nil
Case(s) also cited:
Nil
(Page 3)
Background
1 This is an application for the appointment of a guardian for J who is unconscious and in intensive care in hospital following a life-threatening injury. Decisions need to be made as to what treatment J should receive. In particular, a decision needs to be made as to whether she should receive palliative care only. J is not expected to recover consciousness before those decisions need to be made.
2 The Tribunal was notified of J's circumstances by a social worker at the hospital where J is being cared for, through the Office of the Public Advocate. The Tribunal convened a hearing at the hospital on the same afternoon. In attendance were J's sister and niece, her treating doctor, the social worker and a representative of the Public Advocate. One of J's adult sons was on his way to Perth by plane at the time of the hearing and the other adult son was in Perth but was not able to be present at the hearing.
3 J's sister has told the Tribunal that J has suffered physical and mental illnesses over many years. In that time J's sister has cared for her, including making decisions concerning her medical treatment, and in July 2005 she was appointed J's plenary administrator with authority to manage her financial affairs.
4 J's sister has told the Tribunal that she is willing, and wishes, to make decisions concerning her sister's treatment. The treating doctor understands their relationship and is willing to accept, and act on, decisions made by J's sister on her behalf. However, J's injuries occurred in circumstances in which it is possible there will be a coronial inquiry in the event of her death. Both the treating doctor and J's sister want to be sure they act lawfully in making any treatment decisions, and especially any decision to administer palliative care only.
The law
5 The Guardianship and Administration Act 1990 (WA) (the Act) provides that the Tribunal may appoint a guardian where it is satisfied, firstly, that the person for whom a guardian is sought is incapable of looking after her own health and safety, is unable to make reasonable judgments in respect of her person, or is in need of oversight, care or control in the interests of her own health and safety or for the safety of other person. However, merely being unable to make decisions does not
(Page 4)
- necessarily mean a guardian should be appointed: the Tribunal must also be satisfied that the person is in need of a guardian.
6 In reaching its decision, the Tribunal must observe the principles set out in s 4 of the Act. The principles relevant in this case are:
· The Tribunal's primary concern must be the best interests of the person for whom a guardian is sought.
· Every person is presumed to be capable of looking after her own safety and health and of making reasonable judgments in respect of matters relating to her person.
· An order appointing a guardian shall not be made if the needs of the person concerned could be met by other means less restrictive of her personal freedom of decision and action.
· The Tribunal shall, as far as possible, seek to ascertain the views and wishes of the person concerned.
7 Section 119 of the Act provides that a doctor may, with the consent of a specified person, provide treatment if, in the doctor's opinion, a person is in need of treatment but is incapable of consenting to proposed treatment and is, at the time, a person for whom a guardian could be appointed under the Act. Where urgent treatment is needed, and it is not practicable to obtain the consent of the specified person, the doctor may provide treatment without obtaining consent.
8 The person who may consent to treatment in these circumstances is the first in order of priority of the following:
(a) a guardian of the person needing the treatment;
(b) the spouse or de facto partner of the person needing the treatment;
(c) a person who, on a regular basis, provides or arranges for domestic services and support to the person needing the treatment but does not receive remuneration for doing so;
(d) a person who is the nearest relative (other than the spouse or de facto partner) of the person needing the treatment and who maintains a close personal relationship with the person needing the treatment;
(Page 5)
- (e) any other person who maintains a close personal relationship with the person needing treatment; or
(f) a person prescribed in the regulations.
9 Section 119 is, in effect, a means of meeting a need for decisions to be made about medical treatment for persons who may need assistance in their personal affairs that is less restrictive than the formal appointment of a guardian.
Reasons for decision
10 J is unconscious and unable to provide consent to medical treatment. She appears to be a person for whom a guardian could be appointed. The nature of her injuries means that a decision about her treatment is needed.
11 J does not have a guardian appointed under the Act and she does not have a spouse or de facto partner. The Tribunal accepts that J's sister has been for many years her unpaid carer. In the absence of a formally appointed guardian, her sister is the first in order of priority of the persons specified in s 119(3) and, by virtue of that position, has authority to consent to medical treatment for her sister. J's treating doctor accepts the authority of J's sister pursuant to s 119 and is willing to accept, and act on, decisions made by J's sister on her behalf.
12 If J's sister was not her unpaid carer, J's elder adult son and, if he was not reasonably available at the time, her younger adult son, would have the authority as her nearest relative (as defined in s 3), to consent to treatment on her behalf.
13 J's sister and niece, and J's doctor and social worker, have all told the Tribunal that there is no disagreement between J's sister and her adult sons as to the course of treatment that should be provided to her. Even were there disagreement, J's sister would still have the authority to consent to her treatment. Occasionally, however, a doctor may be reluctant to provide treatment in the face of disagreement between close family members, despite the lawful authority conferred on one by the Act. In such cases a guardian may be formally appointed because of the need for a decision to be made and the doctor's need for clear authority before he or she feels able to act. In this case, no such need arises.
Conclusion
14 After discussing with all present the authority that J's sister has under s 119, J's sister has confirmed that she is willing, and wishes, to make
(Page 6)
- decisions for her sister, and the doctor has advised that he is willing to act on those decisions. There being no need for a formal appointment, J's sister has advised that she will withdraw her application.
15 The Tribunal must give leave for an application to be withdrawn: see s 44, State Administrative Tribunal Act 2004 (WA). Leave is granted and the application is withdrawn.
Orders
(i) The time for giving notice of the hearing is shortened pursuant to s 41(3)(a).
(ii) The requirement to give notice of the hearing is dispensed other than to the applicant, the proposed represented person and the Public Advocate pursuant to s 41(3)(b).
(iii) The applicant has leave to withdraw the application and the application is withdrawn.
I certify that this and the preceding [15] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS J TOOHEY, SENIOR MEMBER
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