GEG
[2022] WASAT 121
•27 OCTOBER 2022
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 in the GA Act jurisdiction of the Tribunal. In accordance with this, the practice is that reasons for decisions are anonymised so that the proposed or represented person and witnesses cannot be identified. As GEG's legal representative gave important background information which might be regarded as evidence, I have adopted this in respect of GEG's legal representative also.
Background
GEG is a 37-year-old indigenous woman who lives in a remote community with her mother and other family members, and at times in larger towns, in the north-west of Australia. She has two children both of whom are in alternative care having been removed from GEG's care by the Department of Communities (Child Protection).
An application was first made to the Tribunal in respect of GEG in 2009 by the Public Advocate following a referral to her office from the Magistrates Court in a regional town where GEG was facing criminal charges. Orders were sought for the appointment of a guardian to facilitate advocacy in respect of the charges GEG was facing and in relation to Care and Protection proceedings in the Children's Court in respect of her son. (GEG's elder child, a daughter, had reportedly been removed from her care some years before).[2]
[2] Report of the Public Advocate's investigator dated 17 October 2017.
GEG's older sister, Ms B, was appointed her guardian. Ms B's appointment was confirmed on review of the orders in 2010 and 2012. On 31 October 2017 that order was revoked following a further review and the Public Advocate appointed as GEG's limited guardian.[3] An administration order was made on 16 February 2018 appointing the Public Trustee as the plenary administrator of GEG's estate
[3] In the investigator's report prepared for that hearing GEG is reported not to support the continuation of her sister's appointment as guardian reportedly saying that she was 'getting too involved in her business'. The investigator reported being unable to contact Ms B in the lead up to the hearing to discuss the matters with her.
The guardianship orders of 31 October 2017 provided for the appointment of the Public Advocate as limited guardian with the following functions:
a)to determine the services to which the represented person should have access;
b)to seek legal advice on behalf of the represented person in relation to any action taken by the Department of Communities under the Children and Community Services Act 2004 (WA) in respect of the represented person's children [names suppressed];
c)to seek legal advice on behalf of the represented person in relation to any action taken by any person appointed as a special guardian under the Children and Community Services Act 2004 (WA) in respect of the represented person's child [name suppressed];
d)to bring and defend actions, suits or other legal proceedings in the name of the represented person in relation to orders (b) and (c) and related matters and, if appropriate to settle these matters;
e)to advocate for the represented person in respect of any other matters brought by the Department of Communities under the Children and Community Services Act 2004 (WA); and
f)to advocate for the represented person in respect of any other matter brought by any person appointed as a special guardian under the Children and Community Services Act 2004 (WA) including, but not limited to, any proceedings in the Family Court of Australia or the Family Court of Western Australia.
The orders were set for review by 31 October 2022. This is the order of which the guardian sought early review in November 2021.
The reviews
The review hearing was listed urgently at the request of the guardian as GEG was facing serious charges in the District Court with a hearing on 10 November 2021 to consider whether she was fit to stand trial.[4]
[4] Pursuant to the Criminal Law (Mentally Impaired Accused) Act 1996 (WA).
The initial review hearing was convened on 8 November 2021 (GAA 4752/2021). At the hearing the guardian explained that the additional functions sought were to enable representations to be made on GEG's behalf to the Court.
GEG did not attend the hearing despite notice being given to her[5] and assistance to enable her to participate by telephone being provided by her legal representative, and Ms H, a community liaison and education officer from a regional office of Legal Aid WA. Both GEG's legal representative and Ms H attended the hearing by telephone.
[5] Formal notice of the hearing was only given on the day of the review hearing with considerable assistance from GEG's legal representative and a paralegal from Legal Aid who served the notice. Time for the service of notice on GEG of the hearing of the review application was shortened pursuant to s 41(3)(a) of the GA Act to allow the hearing to proceed on 8 November 2021. This order was made because I was satisfied that the circumstances were exceptional, and it was in the best interests of GEG that the hearing proceed. Notice of the hearing was dispensed with to GEG's nearest relative pursuant to s 41(3)(b).
The guardian submitted that additional functions of accommodation decision-making should be included in the guardianship order as GEG had been transient and was extremely vulnerable in the community. It was submitted that this function might make it possible to secure further National Disability Insurance Scheme (NDIS) funding to access more services to provide greater protection for GEG. It was also said that GEG had been sexually assaulted the previous week and this too was a factor in bringing the urgent application for review.[6] Authority to make medical treatment decisions for GEG was not sought by the guardian.
[6] ts 5, 8 November 2021.
GEG's legal representative explained that the 10 November 2021 hearing was a fitness to plead hearing or fitness to stand trial hearing and that specialist reports had stated that GEG was not fit to stand trial and a hearing would determine whether GEG would face indefinite custody or a release without conditions, those two options being the only available to the Court. The additional functions in the guardianship order would enable submissions to be made that there were sufficient[7] protections in place to reduce the risk of further offending. The legal representative undertook to seek leave of the District Court to provide the specialist reports to the Tribunal.
[7] ts 6, 8 November 2021.
There was at the time no new medical evidence before the Tribunal for the review due to the urgency of listing the matter for hearing.
During the hearing GEG's legal representative advised that GEG had sent a text message stating that GEG 'wants to agree that [name of the Public Advocate's delegated guardian] have more ways to help her'. It was understood by this that GEG supported the inclusion of additional functions being included in the orders on review and the reappointment of the Public Advocate as her guardian.
I was satisfied that the presumption that GEG was capable of making reasonable judgments about her person was displaced relying on the evidence of the guardian and on historical reports of Dr B, a consultant psychiatrist of assessments of GEG held on the Tribunal's file. I will refer to that evidence in more detail later in these reasons.
I was also satisfied that GEG was in need of a guardian as there were no less restrictive means by which her needs could be met. Informal supports appeared to be lacking and GEG was facing serious charges. I accepted there was a need for additional functions to be included in the guardianship order to support any submissions to the Court which ultimately might be made on her behalf.
There being no one else proposed for appointment the Public Advocate was confirmed as GEG's guardian.[8] The proposed functions - to decide where and with whom GEG was to live, to seek legal advice and representation on her behalf and to advocate in relation to any police investigation, criminal charges or related proceedings - were included in the orders made on review together with the existing functions set out above.
Early review of the guardianship order
[8] Section 44(5), GA Act.
Although it would be usual to bring the review of the order in line with review of the administration order which was due in October 2022, I set an early review of the guardianship order in January 2022.
A short review was to give a further opportunity of GEG to attend the hearing, and so that up-to-date capacity assessments could be obtained, given that Dr B's report was several years old.
More particularly I considered a short review should be held because matters had been raised in the hearing regarding the guardian's report of GEG's request for a tubal ligation as she had told her doctor she did not want to have more children. The guardian advised that GEG's doctor had subsequently contacted the guardian to discuss this.[9]
[9] ts 10, 8 November 2021 and ts 5, 17 June 2022.
Having regard to what was said in the hearing, there was an apparent uncertainty on the part of the guardian[10] as to whether the specific consent provisions in the GA Act in respect of consent to sterilisation applied to GEG as the functions of the Public Advocate as guardian did not include the function to make treatment decisions on GEG's behalf. The guardian advised she had given this information to the doctor who had contacted the guardian.[11]
[10] ts 10, 8 November 2021 and ts 5, 17 June 2022.
[11] ts 10, 8 November 2021.
The issue arose when the guardian was responding to the outline of Dr B's assessment and report of GEG's functioning in 2009[12] in which he said that GEG had 'significant difficulty initiating speech, in understanding matters, had problems with information processing and did not appear to appreciate the consequences of her actions'. The guardian said that GEG wanted to have a CT on her brain as she had said that her brain was 'not the same as other people and wanted to know what's wrong with it'.[13] The guardian went on to say:
She also is quite clear about the fact that she has had two children. They have both been removed. She doesn't want to have any more children and she would like to have a tubal ligation. This is what she told Dr P[ ]at [suppressed] Clinic. So Dr P[ ] rang me and we discussed the fact that the Public Advocate doesn't have medical authority, and that hasn't proceeded at this point in time, but it was - she appeared to really understand what she wanted and her reasons for it [.][14]
[12] Psychiatric Report to the Magistrates Court, dated 28 July 2009.
[13] ts 9, 8 November 2021.
[14] ts 10, 8 November 2021.
The guardian's own view expressed in the course of the hearing was that she did not believe GEG would fully comprehend a complex medical decision.[15]
[15] ts 6, 8 November 2021.
I considered there was a need for an early review of the guardianship order in two respects. The first was that a tubal ligation for the purpose of GEG not having more children was likely to be a 'procedure for sterilisation'[16] as defined in the GA Act and therefore subject to the specific provisions for consent in Div 3 Pt 5 of the GA Act. This Division requires the Full Tribunal[17] to determine any application made and provides for a specific consent regime.[18] Division 3 of the GA Act provides for possible criminal penalties for non-compliance with that consent regime.
[16] Tubal ligation for the purposes of not having any more children - to render sterile - is within the definition of a procedure for sterilisation referred to in EW [2021] WASAT 111, see s 56, GA Act.
[17] Section 56A, GA Act.
[18] Section 57, GA Act.
As noted, Div 3 of Pt 5 of the GA Act applies to a 'procedure for the sterilisation' of a 'represented person'. In this Division a 'represented person', is defined as 'a person in respect of whom a guardianship order is in force'.[19] Any procedure for sterilisation of a represented person so defined therefore requires the consent of the Full Tribunal pursuant to s 63 of the GA Act. This is the case for any represented person who is subject to a guardianship order whether or not the appointed guardian has the function to make treatment decisions for the represented person.
[19] Section 56, GA Act.
In respect of the question of consent to sterilisation of a represented person, a decision of the Full Tribunal in EW [2021] WASAT 11 (EW) sets out the statutory framework relevant to an application for consent:
13A plenary guardian has authority, and a guardian with limited functions may be authorised, to make decisions on behalf of a represented person in relation to medical treatment. However, a guardian is not permitted to consent to the sterilisation of a represented person except in accordance with Division 3 of Part 5 of the GA Act.
14The term 'sterilisation' is not defined in the GA Act. The meaning of the word 'sterilise' in relation to a person is 'to cause to be unfruitful; to destroy the fertility of' and 'to deprive of fecundity; to render incapable of producing offspring'.
15Under the GA Act, the term 'procedure for the sterilisation' is defined to not include a lawful procedure that is carried out for a lawful purpose other than sterilisation but that incidentally results or may result in sterilisation.
16No doubt because of the significant consequences of a procedure for the sterilisation of a person, the GA Act strictly regulates the circumstances in which the sterilisation of a represented person may take place, in a number of ways.
17First, the GA Act prohibits a person from carrying out or taking part in any procedure for the sterilisation of a represented person unless certain conditions are met. Those conditions are that both the guardian of the represented person, and the Tribunal, have consented in writing to the sterilisation; that all rights of appeal in respect of the Tribunal's grant of consent have lapsed or been exhausted; and that the sterilisation is carried out in accordance with any condition imposed under the GA Act.
18Secondly, a guardian is not entitled to consent to the sterilisation of a represented person unless the consent of the Tribunal has been first obtained.
19Thirdly, the Tribunal has jurisdiction to give or withhold consent to the sterilisation of persons in respect of whom guardianship orders are in force.
20A represented person, her guardian or the Public Advocate may apply to the Tribunal for its consent to the sterilisation.
21Applications for the Tribunal's consent to the sterilisation of a represented person fall within the Tribunal's original jurisdiction. Such applications must be determined by a Full Tribunal.
22The Tribunal may consent to the sterilisation of a represented person if it is satisfied that it is in the person's best interests.
23The term 'best interests' is not defined in the GA Act. Ascertaining what is in a person's best interests requires a judgment informed by all of the circumstances. Some insight into the variety of considerations which may inform that judgment can be discerned from s 51(2) of the GA Act, which describes how a guardian will act in the best interests of the represented person (as the guardian is obliged to do under s 51(1)). That section suggests that it will be in a represented person's best interests for them to live in the community and participate as much as possible in the life of the community; that to the greatest extent possible they are assisted to become capable of caring for themselves and making reasonable judgments in respect of personal matters; that they are protected from neglect, abuse or exploitation; that their wishes are taken into account as far as possible and their rights restricted to the least extent consistent with their proper protection; that their supportive relationships are maintained; and that their cultural, linguistic and religious environment is maintained.
24In JS and CS, the full Tribunal considered the operation of the provisions of Division 3 of Part 5 of the GA Act. We gratefully adopt the Tribunal's observations at [27] - [32]:
27The GA Act offers no specific guidance to the Tribunal when dealing with applications for sterilisation other than that it must be satisfied that the proposed procedure is in the best interests of the represented person.
28The meaning of 'best interests', in the context of sterilisation of a person with a disability, has been considered by the courts on a number of occasions.
29In Secretary, Department of Health and Community Services v JWB and SMB (Marion's case), the High Court said it is not possible to formulate a rule which would identify cases where sterilisation would be in a person's best interests. But it emphasised (at 259) that sterilisation is a 'step of last resort', meaning that alternative and less invasive procedures must have all failed or proven inadequate, and the court must be certain that no other procedure or treatment will work.
30The High Court said that sterilisation is a substantial invasion of a person's physical integrity and, in the case of a person with an intellectual disability who cannot herself consent to the procedure, it could never be authorised unless 'some compelling justification is identified and demonstrated': per Brennan J at 268. Similar principles were set out by the Full Court of the Family Court in Re Jane.
31The Tribunal is also guided by the Protocol for Special Medical Procedures (Sterilisation) adopted in September 2003 by the Australian Guardianship and Administration Committee (now Council) whose membership includes the various tribunals, boards and courts exercising guardianship jurisdiction across Australia.
32The principles set out in the Protocol reflect and expand on the principles applying to guardianship matters generally. Specifically, they recognise that every person has the same basic human rights regardless of their capacity; the right to respect for his or her human worth and dignity as an individual; and the right to participate, to the greatest extent practicable, in decisions affecting them. Sterilisation is an option of last resort and, if there is a choice between a more or less intrusive and permanent form of treatment, the less intrusive way should be adopted unless it is, or would be, unsatisfactory.
(Footnotes and citations omitted)
In addition to the clarification of the issue and the need for compliance with the relevant provisions of the GA Act, the second consideration for an early review was the question of whether GEG was, in fact, capable of making treatment decisions or whether she needed a guardian for this purpose.
Given what was argued as the urgent need for guardianship orders in other areas of her life, the option of discharging the guardianship orders so that GEG could herself consent to the tubal ligation did not appear to be an option.[20]
[20] Considered in EW.
At the review hearing on 11 February 2022 (GAA 5069/2021), only the guardian attended.[21] A report from Dr P, a general practitioner from a community clinic, had been received. However, the report of the neuropsychological assessment of GEG by Dr V was not yet available.
[21] Notice was given to GEG but not it appears to her legal representative.
As submitted by the guardian, that report was being prepared in respect of GEG's fitness to plead to the charges in the District Court and not in respect of her capacity to make decisions about medical treatment. Notwithstanding this, I considered that this report may be of assistance to me in determining the review of the guardianship order. The hearing was adjourned for that report to be considered, and to enable Dr P to be available to give evidence by telephone.
The review hearing was relisted to 17 June 2022. Again, despite notice being given to her, GEG did not attend the hearing. At that hearing I heard oral evidence from Dr P and from Mr F, a social worker and NDIS support coordinator, from the guardian and from GEG's legal representative on GEG's behalf.
The report of Dr V was still not available despite leave being granted by the District Court for that report to be provided to the Tribunal and to the NDIS (for reassessment of GEG's NDIS plan). I adjourned to enable those reports to be received and considered. I indicated that I would not reconvene the hearing but would determine the review of the guardianship order without further hearing.[22]
[22] See s 60(2), State Administrative Tribunal Act 2004 (WA).
Reports following assessments of GEG for the purposes of the Criminal Law (Mentally Impaired Accused) Act 1996 (WA) (Mentally Impaired Accused Act) were submitted to the Tribunal on 30 June 2022.
On 20 July 2022 I made orders reappointing the Public Advocate as limited guardian of GEG with the addition of the function to make treatment decisions for GEG, subject to Div 3 of Pt 5 of the GA Act.
A further statutory[23] review of both the guardianship and administration orders was heard on 27 October 2022. These orders confirmed the reappointment of both the Public Trustee and the Public Advocate as administrator and guardian respectively.
[23] Pursuant to s 84, GA Act
In respect of the review of the administration order I was satisfied on review that GEG remained a person for whom an administration order may be made. I was satisfied on all of the evidence that GEG has a mental disability, and she was unable by reason of that disability of making reasonable judgments in matters relating to all of her estate and she was in need of an administrator of her estate.[24]
[24] The need included the management of her pension income and to pursue possible compensation suffered by GEG from criminal injuries sustained in alleged sexual assaults on her.
Further functions were included in the guardianship orders reappointing the Public Advocate as limited guardian of GEG at the request of the guardian. The orders made in that most recent review are included at the conclusion of these reasons.
Evidence
The following medical reports are on the Tribunal's file.
In a report dated 6 July 2009 addressed to GEG's legal representative, GEG's solicitor then and now, Dr B, a consultant psychiatrist, reports on GEG's capacity to instruct and to sign orders made in respect of her child by the Department of Communities (Child Protection).[25]
[25] Report of Dr B prepared for the Magistrates Court.
Dr B reported that GEG seemed to have difficulty in processing information, with significant delays in addressing questions asked of her and articulating her responses. He said there appeared to be 'poverty of thought' as evidenced by lack of speech content and that GEG's silence did not appear to be culturally related as she was equally quiet and noncommunicative with the interpreter who was well known to her. The interpreter explained that GEG was usually like this and had been so since being a child. Dr B noted that when he observed GEG 'interacting with her parents at a later time, there was a similar level of detachment and lack of emotional connection'.
Dr B stated that GEG did not seem to appreciate the significance of the consequences of her actions. In his opinion there was no current psychiatric disorder evident, however it was possible that GEG may suffer from an underlying psychotic disorder in the context of alcohol abuse and that there was history of alcohol abuse to hazardous levels. Dr B's opinion was that GEG has an intellectual impairment of 'moderate degree'.[26]
[26] Which was defined as: 'an approximate IQ range of 35 to 49 in adults a mental age from 6 to under 9e years marked developmental delays in childhood but most can learn to develop some degree of independence in selfcare and require adequate communication and academic skills … adults will need varying degrees of support to live and work in the community'.
Dr B concluded that GEG 'does appear to suffer with a mental impairment' for the purposes of the Mentally Impaired Accused Act related to intellectual disability and that the deficit was a static one and not likely to improve over time or with treatment. He reported that his was a provisional diagnosis and recommended further evaluation by a qualified psychologist to obtain a formal diagnosis and evaluate GEG's intellectual functioning.
A report from a general practitioner Dr D, dated 14 September 2009, reported that GEG had a mild intellectual impairment, which was diagnosed by a paediatrician when she was three years of age. Dr D gave the opinion that GEG was capable in the spheres of personal health care and living situation decision-making but was unsure regarding her capacity to make decisions about her financial affairs.
A copy of a paediatrician's review, dated 14 February 1995, was included and reported GEG's father's concern that she often wandered and did not seem to be able to care of herself appropriately. It is noted 'this would be in keeping with past encephalopathy and subsequent significant developmental delay'. The paediatrician noted that extra care would be needed by the community in terms of her well-being as a teenager, and there had been one episode already of her perhaps 'being interfered with'.
In a Doctor's Guide prepared for the Tribunal in 2010, consistent with his earlier report, Dr B, the consultant psychiatrist, describes GEG as having a diagnosis of 'moderate intellectual disability' which he stated was a static condition.[27] In respect of GEG's capacity to make reasonable decisions in respect of medical procedures and accommodation, Dr B stated, 'yes capable' 'at a superficial level' and incapable for financial decision-making. When asked for any other observations or comments about GEG's capacity, Dr B stated '[d]oes not have capacity - limited comprehension and impaired communication due to developmental delay'.
[27] Doctor's Guide of Dr B, consultant psychiatrist, dated 8 February 2010.
As referred to above, for the review of the guardianship order in February 2022, the Tribunal sought a report from Dr P, a general practitioner at the [name suppressed] Community Clinic. Dr P provided a report dated 11 January 2022 in which she said that she had seen GEG seven times in the previous 12 months, most often with her mother.[28]
[28] Dr P's Medical Report dated 11 January 2022.
Dr P's report noted an unclear diagnosis and referred to a psychiatry assessment in 2009 which documented moderate intellectual impairment - unclear aetiology. This was presumably Dr B's report referred to above. Dr P's opinion was that GEG's condition is a static one. Dr P stated she was unsure whether GEG was capable of making simple financial decisions but noted she appears 'unlikely capable from limited interactions and ability to plan/problem-solve'. In respect of complex financial decision-making, Dr P indicated her opinion was that GEG was incapable and stated, 'when organising travel and appointments has difficulty with organisation/sequencing'. Dr P reports that she is unsure whether GEG is capable for legal matters.
In respect of capacity to make reasonable decisions in relation to medical treatment and procedures Dr P opined that GEG 'was able to comprehend indications [and] implications of surgery and potential complications.' Dr P was unsure whether GEG was capable for accommodation decision-making and noted she was aware GEG required assistance from legal services in [name of town suppressed]. Dr P's opinion was that GEG is incapable of identifying and securing appropriate support services as she was 'unable to provide assistance/care/engage with support services for her mother who is unwell'. Dr P's opinion is that GEG is capable of giving an enduring power of guardianship.
In her oral evidence in the hearing on 17 June 2022, Dr P confirmed that the surgery to which she referred in her report was a tubal ligation. Dr P said that GEG had come to see her and requested a referral to a gynaecologist in the region. Dr P said that she felt that GEG had come in of her own accord requesting the procedure. Dr P stated she had consulted with the guardian to make them aware that the referral was being made, and had also made the surgeon aware that GEG was also under guardianship. Dr P confirmed that she was of the understanding at that time that GEG did not have a legal guardian who was required to make that decision for her and that she was, at that stage, able to make medical decisions for herself.[29]
[29] ts 4 and 5, 17 June 2022.
When the report and opinions of Dr B, and her own assessments of GEG's understanding of her mother's health conditions were put to Dr P as being 'quite child like'[30] she said:
I would agree with that, that - in regards to complex reasoning, complex procedure, that I would have concerns about her ability to fully grasp. I guess, I feel I do advocate for her in this regard - as everyone is doing here - that she's really showing her intentions and she - multiple times came to clinic to follow up on a referral on what she had requested. And I did feel she had an understanding of what she wanted to have done to her body.[31]
She understood the nature of the procedure, how it would be done, the consequences of having formal contraception and the potential consequence - potential complications of the procedure. And so I did refer her on to go and have an appointment with the gynaecologist to see if he could explain it further and whether he felt comfortable with her formal consent to do the procedure.[32]
[30] ts 15, 17 June 2022.
[31] ts 15, 17 June 2022.
[32] ts 4, 17 June 2022.
Dr P said that GEG has since sought out the opinion of another doctor in a regional town for further referral for a tubal ligation. Dr P referred to notes that recorded a consultation about alternative forms of contraception and reported that GEG had instead requested to pursue 'formal sterilisation - permanent contraception'.[33]
[33] ts 15, 17 June 2022.
When the historical opinions of Dr B were put to Dr P, she said in response that she 'could not negate any of that' in her limited interactions with GEG.[34] She said that most of the seven encounters cited in her report had been medical appointments with GEG's mother.
[34] ts 12, 17 June 2022.
Dr P explained GEG had demonstrated very limited understanding of how sick her mother was and continued to put her own needs above her mother's even when it appeared that her mother may die.[35]
[35] ts 13, 17 June 2022.
GEG's legal representative said that she had considered the issues of GEG's capacity in respect of her capacity to plead guilty to the serious charge she was facing and said in that regard GEG had impressed her with her level of understanding. She noted that GEG was better communicating in writing, but she was from a cognitive perspective 'very limited'.[36]
[36] ts 16, 17 June 2022.
GEG's legal representative reported that GEG could say what medications she was on and what her health issues were but had reservations about how well GEG understood these. She confirmed GEG's wish to have a tubal ligation. She went on to say:
But she often surprises me with the depth of her understanding of certain things. I suppose it is quite a simple understanding. But with this particular issue, I'm confident she does understand what tubal ligation means. She won't be able to have any more babies and that that's, clearly, very much what she wants.[37]
[37] ts 16, 17 June 2022.
The guardian confirmed that she had not been able to meet directly with GEG despite efforts to do so including going to the regional town on two occasions. From conversations she had had with Dr P she too was clear about GEG's wishes regarding the tubal ligation, that 'she had had two children' and 'didn't want to have any more'.[38]
[38] ts 16, 17 June 2022.
The guardian described GEG as 'so vulnerable' and that she had been sexually assaulted.[39] The guardian also reported that GEG was living a chaotic lifestyle and that further functional assessments were being undertaken to support claims to get additional funding from the NDIS.
[39] ts 16, 17 June 2022.
The guardian said that although accommodation had been found for GEG, she invariably stayed out at places that were very dangerous and appeared to choose these over the safe place in which she had been accommodated.
Mr F, the specialist support coordinator, confirmed this and reported that accommodation had been obtained for GEG in the context of an extremely difficult rental market in the regional town, but she had left the accommodation and slept rough with family or with people she knew in the community. He said this created more risk and it made service provision to GEG more difficult, because services providers did not know where she was. He also said it could also be risky for support workers to go out to try to find her in the community, particularly at night-time.
He reported that GEG had within a very short time been the victim of a number of quite serious assaults. He said she had also been charged following incidents in the community and was dealing with criminal matters herself which occurred when GEG was quite unsupported in the community. He said he considered GEG extremely vulnerable with very significant risks present for her.
The guardian said that it was thought that GEG might need some form of 24-hour care and noted that to need that level of care that this indicated that GEG was not able to make good choices in life and was making choices where she puts herself in vulnerable positions.[40]
[40] ts 17, 17 June 2022.
The guardian said that the whole picture led her to question if GEG was capable of making good medical decisions, particularly the tubal ligation which was a complex one.[41]
[41] ts 17, 17 June 2022.
In respect of her broader medical needs, Dr P confirmed that GEG was on a number of medications, which were Webster-packed; for cholesterol, three medications for diabetes as well as insulin which was not packed, a medication to protect her kidneys, eyedrops and a Ventolin inhaler.[42]
[42] ts 17-18, 17 June 2022.
GEG's legal representative said that although GEG's medications were Webster-packed there were several periods when it was reported that she did not take her prescribed medications. When living in [name suppressed] community GEG's medications were more closely monitored, because she regularly went into the clinic, daily at times. However, when away from her own community and not closely monitored, social workers had become aware of several periods when GEG was not taking her medications consistently. GEG had reportedly sometimes gone a week without taking her medications and was not taking the correct medication at the correct time.[43]
[43] ts 17-18, 17 June 2022.
GEG's legal representative said that when social workers had taken responsibility for this, they ensured that GEG's medications had been taken. When this occurred those in contact with GEG had observed a change in her behaviour and her emotional regulation.
GEG's legal representative questioned whether non-compliance with her prescribed medications gave rise to the need for a guardian for all of GEG's medical decisions or whether this was a social issue indicating a need for supports to ensure that GEG takes medication she requires at the right time and consistently.[44]
[44] ts 18, 17 June 2022.
Dr P said non-compliance with those prescribed medications would not greatly affect GEG's cognitive functioning. However, at the 'extremes of GEG's 'sugar levels' this could have an impact on her cognitive impairment due to fatigue on a daily basis which could impact on her capacity.[45]
[45] ts 19, 17 June 2022.
GEG's legal representative reported that GEG has had urinary tract infections (UTI). She had been hospitalised in November 2021 after a sexual assault and had a UTI and some issues with her heart.
Dr P confirmed that GEG was admitted to a regional hospital with para-nephritis, explaining that the infection had ascended to GEG's kidneys making her much more unwell than a simple UTI. She said that this degree of infection could, potentially, be spread by the blood and put GEG's heart at risk.
As noted above, reports prepared for the District Court for the purposes of assessing whether GEG was fit to stand trial were provided to the Tribunal with leave of the Court. Those reports are neuropsychological assessments of GEG by Dr V, dated 5 November 2021 and 14 April 2022, and psychiatric reports of Dr B, dated 10 March 2021 and 11 April 2022.[46] GEG's legal representative explained that the later reports were sought following consideration of whether GEG had capacity to enter a plea of guilty to a lesser charge.[47]
[46] GEG's legal representative explained that GEG had been found not fit to stand trial but would have been acquitted in relation to part of the allegations. Further consideration was given to whether GEG was capable of pleading guilty to a lesser charge. Significant capacity building was undertaken in the intervening months and GEG was reassessed and found to understand the nature of the charge and the requirement to plead to the charge. GEG's legal representative reported GEG was able to enter a plea and was convicted on her plea of guilty. Despite the very serious nature of the lesser charge a suspended sentence was imposed because the Court accepted that GEG's personal circumstances were exceptional.
[47] ts 9, 17 June 2022. The second reports by Drs V and B in each case were assessments of GEG's capacity to enter a plea of guilty after the downgrading of the initial charge and were more limited in scope.
In his report dated 10 March 2022, Dr B stated he was unable to obtain collateral information regarding GEG's current level of day-to-day functioning. He noted that he was unable to conduct cognitive testing due to the assessment being conducted by video link and that no interpreter was present for the interview.
Dr B referred to his earlier reports and his assessment with an interpreter years before and noted that GEG appears to have a mildtomoderate intellectual disability, which affects her speech, memory, judgment and planning solving skills. He recommended a neuropsychological assessment.
Dr B's opinion was that GEG did not appear to have the requisite cognitive capacities to plead and stand trial. He went on to say that GEG is 'vulnerable to coercion suggestibility and passively agreeing with whatever is put to her'. He concluded that GEG's fitness to plead will not improve as it is due to the underlying intellectual disability rather than a treatable mental disorder.
In her report dated 5 November 2021, Dr V stated that she had not had access to the report of Dr B, the report of the paediatrician or any reliable informants for collateral history. Based on the reviewed material available to her,[48] Dr V considered that GEG's history was suggestive of early life trauma, childhood epilepsy, mild intellectual disability (though Dr V notes it is not clear if this had ever been formally assessed) chronic alcohol abuse, Type II Diabetes mellitus, hypertension and hypercholesterolaemia.
[48] Dr V refers to the material provided to her including interviews, the assessment and departmental records material provided GEG's legal representative including medical reports, contact with the Office of the Public Advocate and medical information from the medical service.
Dr V reported that she undertook a number of assessments including those which did not rely on verbal measures of reasoning, and which were less culturally biased or influenced by academic learning. On assessment GEG's performance fell within the very low range, reportedly an age equivalent of seven years and two months. On another assessment GEG's verbal comprehension index was reported as extremely low but might be underestimated given it was not administered in her primary language. GEG obtained an extremely low score on test of abstract reasoning. There were areas of strength reported including that GEG's non-verbal abilities were much stronger than her verbal abilities.
GEG's self-report indicated that it was harder to concentrate now 'than when she was a kid' and that she sometimes forgot things such as taking medication and felt this was harder than it used to be. However, Dr V noted it was hard to establish a clear timeline or natural history of her memory problems. GEG also reported she needed help with planning and organising though said she was able to problem-solve. GEG was reported to be unable to explain why she had a guardian and administrator in place. In respect of new learning and memory, although Dr V noted that GEG demonstrated preserved recognition for visually presented information, her verbal memory tasks appeared hesitant and overwhelmed.
In respect of whether GEG met the specific criteria under the Mentally Impaired Accused Act, Dr V reported GEG was unable to understand the purpose of a trial. Dr V went on to say, given GEG's verbal memory issues, it will be expected that her capacity to effectively acquire this information, even with repeated explanation, is significantly compromised and she is at risk of continuing to struggle to comprehend this information. In respect of the criteria to understand or exercise the right to challenge jurors, even when this was explained GEG appeared to have only momentary shallow comprehension. Dr V noted that in keeping with her demonstrated verbal memory retrieval impairments, GEG struggled to maintain this information even briefly. With respect to GEG's ability to follow the course of a trial, Dr V reported that in addition to her restricted English proficiency (and limited vocabulary) GEG's slowed information processing, limited verbal memory and pockets of executive dysfunction (cognitive, disinhibition, impaired mental flexibility, compromised verbal reasoning) would likely make it difficult for her to consistently and efficiently process, comprehend and retain complex and large amounts of verbal material, such as presented in a court hearing, particularly when these are presented in her second language. Dr V noted that it is clear from the current assessment findings that GEG struggles to retrieve verbal information from memory.
Dr V stated that her current findings did not support a definitive intellectual impairment, but that GEG was of limited cognitive reserve. Her current identified deficits and cognitive limitations, along with the information that suggested that she is not fully independent in her functioning (with respect to more complex or instrumental activities of daily living), she was of the opinion that GEG would likely fulfil DSMV[49] diagnostic criteria for Major Neurocognitive Disorder (mixed aetiology).
[49] Diagnostic and Statistical Manual of Mental Disorders.
Dr V noted that GEG's profile aligns with the types of deficits that can be seen in chronic alcohol abuse, although it was likely that there were multiple factors contributing. Dr V's conclusion was that the diagnosis of Major Neurocognitive Disorder met the requirements of the Mentally Impaired Accused Act and gave the opinion that GEG was presently unfit to stand trial.
In his further report dated 11 April 2022, Dr B accepted Dr V's diagnosis of GEG as having a neurocognitive disorder based on neuropsychological testing. He did consider however that GEG might have a mild intellectual disability as an alternative diagnostic possibility and that it was impossible to know either way. He noted that the specific diagnosis is less relevant for the legal issue at hand as the end result is the same. He concluded that GEG has cognitive problems that could be diagnosed as a neurocognitive disorder (acquired after a period of normal brain development) or mild intellectual disability (present from birth).
He noted Dr V's finding that GEG was thought to be 'reasonable' in terms of [her] adaptive functioning based on her self-report. However, Dr B stated that GEG's self-report is unreliable and that she has poor social cognition, poor academic functioning and lack of ability to manage money and self-care care which he stated was evident by the appointment of a guardian and administrator. He maintained his concern that GEG has an underlying intellectual disability. Further he suggested GEG may have a neurocognitive disorder superimposed on an intellectual disability. In respect of the question of fitness to plead guilty, Dr B noted GEG has a childlike understanding of her difficulties, given the level of intellectual disability or neurocognitive disorder, but overall was satisfied that GEG had sufficient capacity to understand her plea of guilty (to the lesser charge). Dr B recommended that GEG requires social and practical support in the community and care and protection due to her vulnerability. He noted that a guardian and administrator have been appointed and that NDIS funding could be sought for carers and support persons to keep GEG safe and assist with basic communication, self-care and to supervise contact with her child. Dr B suggested that if GEG has reporting requirements that carers and support persons should assist with this. Without such support Dr B suggests that GEG is at risk of forgetting or missing appointments and may be in breach of community-based orders and dispositions.
Legislation and principles to be observed
All guardianship and administration orders must be reviewed.[50] On review of an order the Tribunal may confirm, amend or revoke the order or substitute another order as it considers necessary in the best interests of the represented person.[51]
[50] Section 84, GA Act.
[51] Section 89, GA Act.
To appoint a guardian, on an original application or on review of any order, the Tribunal must make findings that any or all of the findings set out in s 43(1)(b) may be made in respect of the person concerned.
Section 43 of the GA Act provides:
(1)Subject to section 4, where the State Administrative Tribunal is satisfied that a person in respect of whom an application for a guardianship order is made under section 40 —
(a) has attained the age of 18 years;
(b)is —
(i)incapable of looking after his own health and safety;
(ii)unable to make reasonable judgments in respect of matters relating to his person; or
(iii)in need of oversight, care or control in the interests of his own health and safety or for the protection of others;
and
(c)is in need of a guardian.
As stated these provisions are subject to principles set out in s 4 of the GA Act which provide:
(1)In dealing with proceedings commenced under this Act the State Administrative Tribunal shall observe the principles set out in this section.
(2)The primary concern of the State Administrative Tribunal shall be the best interests of any represented person, or of a person in respect of whom an application is made.
(3)Every person shall be presumed to be capable of —
(a)looking after his own health and safety;
(b)making reasonable judgments in respect of matters relating to his person;
(c)managing his own affairs; and
(d)making reasonable judgments in respect of matters relating to his estate,
until the contrary is proved to the satisfaction of the State Administrative Tribunal.
(4)A guardianship or administration order shall not be made if the needs of the person in respect of whom an application for such an order is made could, in the opinion of the State Administrative Tribunal, be met by other means less restrictive of the person's freedom of decision and action.
(5)A plenary guardian shall not be appointed under section 43(1) or (2a) if the appointment of a limited guardian under that section would be sufficient, in the opinion of the State Administrative Tribunal, to meet the needs of the person in respect of whom the application is made.
(6)An order appointing a limited guardian or an administrator for a person shall be in terms that, in the opinion of the State Administrative Tribunal, impose the least restrictions possible in the circumstances on the person's freedom of decision and action.
(7)In considering any matter relating to a represented person or a person in respect of whom an application is made the State Administrative Tribunal shall, as far as possible, seek to ascertain the views and wishes of the person concerned as expressed, in whatever manner, at the time, or as gathered from the person's previous actions.
Having regard to these provisions I must first be satisfied that the presumption that GEG is capable of making reasonable judgments about her person is displaced and I must then made specific findings as to which paragraph of s 43(1)(b) of the GA Act applies to GEG.[52] If I determine GEG is a person for whom a guardianship order may be made, I must then consider whether she is in need of a guardian.[53] If that is the case, then I must then consider who should be appointed[54] as guardian and the scope and the duration of any order made.
GEG is a person for whom a guardian may be appointed
[52] Section 43(2)(b), GA Act.
[53] Section 43(2)(c), GA Act.
[54] Section 44, GA Act.
Taking all of the professional reports and the evidence given in the hearings as a whole I am satisfied that the presumptions that GEG is capable of looking after her own health and safety and making reasonable judgments about her person are displaced.
Although the reports of Dr V and Dr B were prepared for a different purpose, I am satisfied on this evidence and the oral evidence given in the hearings that GEG has a significant cognitive impairment. Her impairment is either a mild-to-moderate intellectual disability or a neurocognitive disorder or according to Dr B possibly a combination of both. On the neuropsychological assessment GEG's performance was the age equivalent of seven years and two months and she reportedly scored in the extremely low range on a test of abstract reasoning. Although GEG's self-report indicated to Dr V that she was 'reasonable' in terms of her day-to-day functioning, Dr B considered this self-report unreliable and his recommendations for day-to-day supports are consistent with this. It is the case that GEG's assessment of her daytoday functioning is not congruent with the evidence given by the guardian, the NDIS support coordinator and GEG's legal representative of GEG's reliance on others in spheres of self-care such as medication management and decision-making regarding her personal safety and for assistance and advocacy.[55]
[55] Described in the hearings as including significant supports from Ms H of Legal Aid.
I consider it can be inferred from Dr P's evidence that GEG demonstrated limited understanding of her mother's serious condition, and that GEG has likely a limited understanding of her own health needs. Her non-compliance with prescribed medications in the context of her very significant health problems supports this. I accept the evidence that there is a need for supervision of these medications by others to ensure GEG's compliance with the medications as prescribed. This had only been achieved by others taking responsibility for storage and provision of the medications to her. Failure to comply with her medications in the past has reportedly impacted on GEG's presentation in the community and may, if it continues, have long-term health consequences.
I note the opinions of the general practitioners referred to above that GEG has capacity to make treatment decisions. However, in her oral evidence Dr P qualified her own report and accepted Dr B's assessment of GEG. Dr P reported GEG's difficulties with grasping complex procedures.
I also had regard to Dr B's expert psychiatric opinion that GEG's understanding in this sphere of decision-making is 'superficial' and to the assessment by Dr V of GEG's impaired cognition, particularly with impairments of memory. Although GEG may at times be able to make simple treatment decisions, having regard to the expert evidence of the extent of her cognitive impairment and having regard to the evidence given at the hearing of GEG's day-to-day functioning in respect of health care matters, I am satisfied and I find that the weight of the evidence is that GEG is more likely than not, unable to recall and analyse and make judgments about complex healthcare matters.
Dr P's opinion that GEG is incapable of identifying and securing appropriate support services is also illustrated by GEG reportedly choosing to sleep rough in extremely vulnerable circumstances despite safer accommodation having been secured for her. This choice must be seen in the context that GEG has already been subject to sexual assault many times.[56] The assessment of the guardian and Mr F, the NDIS coordinator, was that GEG was putting herself at greater risk but did not appear to appreciate this. Mr F considers that GEG's recent offending behaviour, including serious offences against the person, occurred when she was without supports in the community.
[56] ts 9, 17 June 2022.
Having regard to this evidence I am satisfied that all of the paragraphs in s 43 of the GA Act apply to GEG. I am satisfied and I find she is incapable of looking after her own health and safety, unable to make reasonable judgments about her person and is in need of oversight and care or control in the interests of her own health and safety and potentially for the protection of others.
GEG is in need of a guardian
Although in her report Dr P gave the opinion that GEG is capable of executing an enduring power of guardianship (EPG), it is unclear who could be appointed if GEG could in fact grant this authority.
In terms of informal decision-making, GEG appears to have limited if any family support currently available to her. In the past she reportedly opposed the continuation of her sister acting as her guardian. Her mother is reportedly gravely ill and there are references to a history of domestic violence from her father. Even if it could be executed by GEG, I do not consider that an EPG could meet GEG's needs.
There is no less restrictive alternative to the reappointment of a guardian for GEG. The original need for a guardian to be appointed was the need for a guardian to have formal legal authority to advocate on behalf of GEG in respect of criminal and other legal proceedings, including the giving of consent in respect of care and protection proceedings brought in relation to her son. The recent review was precipitated by further criminal charges GEG was facing. There is an ongoing need for the guardian to have the necessary standing in respect of any civil proceedings in which GEG may be a party, for example any application for or response to an application for a restraining order. There is also a need for a guardian to advocate and assist GEG in respect of any further criminal charges she may face in the future.
Even if GEG is at times able to consent to some forms of treatment in the setting of the [supressed community] Clinic where she is well known and has established relationships with doctors and staff, the evidence given in the hearings indicated that GEG has ongoing complex health conditions and significant vulnerability in the community. I consider that the risk of her being hospitalised again due to injury, or deterioration in her underlying medical conditions is possible. In these circumstances I consider that s 110ZD of the GA Act for consent for medical treatment to be provided by a nearest relative may not meet GEG's need for a substitute decision-maker. This is so particularly in light of her mother's own ill-health and the lack of any identified family supports who might easily be identified as the nearest relative under the relevant provision.
GEG is an NDIS participant and further funding supports are being sought to meet her need for a greater level of support and supervision. Potentially this includes accommodation with 24-hour supports to reduce risks to her (and others) in the community. The NDIS is a complex system which requires legal authority to make judgments about GEG's support needs and to endorse any plans developed to address those needs. GEG needs a guardian to consent to services on her behalf.
Having regard to all the circumstances of GEG, I am satisfied that she is in need of a guardian with authority to make decisions in respect of her accommodation and services to address legal issues as they arise and to make treatment decisions on her behalf. I varied the order to include this function in addition to the existing functions in the orders under review.
Further functions to determine contact that GEG has with others and the extent of that contact and to consent or to withhold consent to restrictive practices under the NDIS provisions were included at the request of the guardian following the October 2022 review. I was satisfied that in the circumstances of GEG as an NDIS participant and the history as outlined, that the guardian may be called on to consider whether consent should be given to restrictive practices as defined under that scheme. Additionally, GEG remains very vulnerable in the community and lacks capacity make judgments about her personal safety and so the function to determine the contact GEG has with others and the extent of that contact was also included.
Wishes of GEG
Although GEG did not attend any of the hearings, I am satisfied that her views were conveyed to me such that I am able to ascertain her wishes. As noted above, GEG advised her legal representative by text message that she supported the reappointment of the delegated guardian of the Public Advocate to assist her.
As referred to above, the guardian, Dr P and GEG's legal representative all confirmed GEG's expressed wish that she undergo a tubal ligation. Dr P reported that GEG had also spoken to another doctor and the notes of that consultation refer to her preference of this procedure over less-permanent forms of contraception.
As set out above the authority to make treatment decisions in any guardianship order[57] is subject to s 45(4A)(b) of the GA Act which provides that a guardian cannot consent to the sterilisation of the represented person for any other purpose,[58] except in accordance with Div 3 Pt 5 of the GA Act.
[57] Section 45(2)(d), GA Act.
[58] Section 45(4A)(a)(i), GA Act prohibits consent by a guardian to the sterilisation of the represented person for medical research.
As noted in the hearing, GEG should have access to all forms of health care that are consistent with her wishes and in her best interests.
In respect of the request for a tubal ligation made by GEG, this has not proceeded despite, according to Dr P, two referrals being made by doctors to gynaecologists. As with other forms of health care it may be the case that GEG requires support and assistance to access this procedure if and when the necessary consents have been obtained.
Public Advocate confirmed as guardian
As there was no one else proposed for appointment as GEG's guardian the appointment of the Public Advocate as her limited guardian was confirmed.
I was satisfied that a limited order with these functions was sufficient to meet GEG's identified needs such that a plenary order was not required.[59]
[59] Section 4(5), GA Act.
Given the long-standing nature of GEG's disability and the lack of identified alternatives I am satisfied that the orders should be made for the maximum period of 5 years.
Orders
For the reasons given orders appointing the Public Advocate as limited guardian which included the function to make treatment decisions for the represented person were made on 20 July 2022 (GAA 5069/2021).
As noted above those orders on review (GAA 3710/2022) were amended on 27 October 2022 to include further functions allowing the Public Advocate to determine what contact the represented person should have with others and to decide whether to give or withhold consent to the use of restrictive practices under the NDIS scheme provisions. Those orders are as follows:
1.Time for service of the notice of hearing is shortened to less than 14 days to all parties pursuant to s 89(3)(a) of the Guardianship and Administration Act 1990 (WA), as the Tribunal has determined that exceptional circumstances exist.
2.Notice of the hearing to the nearest relative of the represented person, is dispensed with, pursuant to s 89(3)(b) of the Guardianship and Administration Act 1990 (WA), as the Tribunal has determined that exceptional circumstances exist.
The Tribunal declares that the represented person, GEG is:
(a)unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all of her estate;
(b)in need of an administrator of her estate;
(c)incapable of looking after her own health and safety;
(d)unable to make reasonable judgments in respect of matters relating to her person;
(e)in need of oversight, care or control in the interests of her own health and safety or for the protection of others; and
(f)in need of a guardian.
The Tribunal orders:
Administration
The administration order dated 16 February 2018 is confirmed as follows:
3.The Public Trustee of 553 Hay Street, Perth, Western Australia is appointed plenary administrator of the represented person's estate with all the powers and duties conferred by the Guardianship and Administration Act 1990 (WA).
4.The administration order is to be reviewed by 26 October 2027.
Guardianship
The guardianship order dated 20 July 2021 is amended so that it now reads:
5.The Public Advocate of David Malcolm Justice Centre, Level 23, 28 Barrack Street, Perth, Western Australia is appointed limited guardian of the represented person with the following functions:
(a)to decide where the represented person is to live, whether permanently or temporarily;
(b)to decide with whom the represented person is to live;
(c)to determine what contact, if any, the represented person should have with others and the extent of that contact;
(d)to make treatment decisions for the represented person, subject to Division 3 of Part 5 of the Guardianship and Administration Act 1990 (WA);
(e)to determine the services to which the represented person should have access;
(f)to seek legal advice on behalf of the represented person in relation to any action taken by the Department of Communities under the Children and Community Services Act 2004 (WA) in respect of the represented person's children, ON and JG;
(g)to seek legal advice on behalf of the represented person in relation to any action taken by any person appointed as a special guardian under the Children and Community Services Act 2004 (WA) in respect of the represented person's child ON;
(h)to bring and defend actions, suits and other legal proceedings in the name of the represented person in relation to orders (f) and (g) and related matters and, if appropriate, to settle these matters;
(i)to advocate for the represented person in respect to any other matter brought by the Department of Communities under the Children and Community Services Act 2004 (WA);
(j)to advocate for the represented person in respect to any other matter brought by any person appointed as a special guardian under the Children and Community Services Act 2004 (WA) including, but not limited to, any proceedings in the Family Court of Australia or the Family Court of Western Australia;
(k)to seek legal advice and representation on behalf of the represented person, and to advocate in relation to any police investigation, criminal charges or related proceedings; and
(l)to decide whether to give or withhold consent to the use of any restrictive practices proposed in any behaviour support plan developed from time to time for the represented person in compliance with the requirements of the National Disability Insurance Scheme (Restrictive Practices and Behaviour Support) Rules 2018.
6.The Tribunal approves delegation by the Public Advocate of her functions as guardian of the represented person to an officer or employee employed in the Office of the Public Advocate.
7.The guardianship order is to be reviewed by 26 October 2027.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS F CHILD, MEMBER
31 JANUARY 2023
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