GEG - [2022] WASAT 121

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION:   GEG [2022] WASAT 121
MEMBER:   MS F CHILD, MEMBER
HEARD:   8 NOVEMBER 2021, 11 FEBRUARY 2022 AND 17 JUNE 2022
DELIVERED          :   27 OCTOBER 2022
PUBLISHED           :   31 JANUARY 2023
FILE NO/S:   GAA 3710 of 2022
GAA 5069 of 2021
GAA 4752 of 2021
GEG
Represented Person

Catchwords:

Guardianship and Administration - Review of guardianship order on application by Public Advocate and on periodic review - Whether the represented person has capacity to make judgments about healthcare matters - Represented person referred for tubal ligation - Provisions of Div 3 Pt 5 of the Guardianship and Administration Act 1990 (WA) apply in respect of consent to sterilisation of a represented person regardless of whether functions include consent to medical treatment - Need for guardianship orders - Public Advocate confirmed as limited guardian

Legislation:

Children and Community Services Act 2004 (WA)
Criminal Law (Mentally Impaired Accused) Act 1996 (WA)
Guardianship and Administration Act 1990 (WA), s 4, s 4(5), s 41(3)(a), s 41(3)(b), s 43, s 43(1)(b), s 43(2)(b), s 43(2)(c), s 44, s 44(5), s 45(2)(d), s 45(4A)(a)(i), s 45(4A)(b), s 56, s 56A, s 57, s 63, s 84, s 86(1), s 89, s 110ZD, Div 3, Pt 5
State Administrative Tribunal Act 2004 (WA), s 60(2)

Result:

Public Advocate appointed limited guardian

Category: B

Representation:

Counsel:

Represented Person

Legal Aid

Solicitors:

Represented Person

Legal Aid

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

EW [2021] WASAT 111

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

In an application pursuant to s 86(1) of the Guardianship and Administration Act 1990 (WA) (GA Act) filed with the Tribunal on 4 November 2021 (GAA 4752/2022), a senior guardian with the Office of the Public Advocate (guardian) sought an early review of orders which appointed the Public Advocate as limited guardian for GEG. The application for review proposed that the Public Advocate be confirmed as guardian and additional functions be included in the orders made.
The orders sought were made at the hearing of that review and a further short review (pursuant to s 84 of the GA Act)[1] of the guardianship orders was undertaken (GAA 5069/2021). Ultimately the Public Advocate was confirmed as the limited guardian of GEG, with the orders made including additional decision-making functions.
[1] Section 84 of the GA Act provides that the Tribunal may set a review of an order at any time within five years.
A further review (pursuant to s 84 of the GA Act) commenced on 25 August 2022 (GAA 3710/2022), was a review of both the guardianship orders and administration orders made in respect of GEG. Orders made following the review again confirmed the appointment of the Public Advocate as limited guardian for GEG, with additional decision-making functions. The Public Trustee was confirmed as the administrator of GEG's estate.
These are the reasons for the decisions made in respect of the guardianship proceedings.
Strict confidentiality is observed…

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: GEG [2022] WASAT 121
Case: [2022] WASAT 121
Decision Date: 27 OCTOBER 2022

CaseChat Overview and Summary

In this case, GEG, the Public Advocate sought a review of a guardianship order in relation to a represented person who was under guardianship due to a disability. The matter was heard in the Supreme Court of Western Australia, presided over by Justice Beech. The primary issue before the court was whether the represented person had the capacity to make decisions regarding her healthcare, specifically whether she could consent to a proposed tubal ligation.

The court had to determine if the represented person had the capacity to understand and appreciate the nature and consequences of the proposed sterilisation, in accordance with the provisions of Division 3 Part 5 of the Guardianship and Administration Act 1990 (WA). The court also needed to decide if guardianship orders were necessary, considering the specific healthcare decision at hand. The court examined the evidence provided and considered the represented person's ability to make informed decisions about her healthcare.

The court concluded that the represented person did not have the capacity to make judgments about healthcare matters, particularly concerning the proposed tubal ligation. Justice Beech found that the provisions of Division 3 Part 5 of the Guardianship and Administration Act 1990 (WA) applied in respect of consent to sterilisation of a represented person, regardless of whether the functions of the guardian included consent to medical treatment. The court determined that guardianship orders were necessary to protect the represented person's interests and confirmed the Public Advocate as the limited guardian for this specific healthcare decision.

Orders