GF and MA
[2007] WASAT 28
•5 FEBRUARY 2007
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: HUMAN RIGHTS
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: GF and MA [2007] WASAT 28
MEMBER: MS F CHILD (MEMBER)
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 5 FEBRUARY 2007
FILE NO/S: GAA 2600 of 2006
BETWEEN: GF
Applicant
AND
MA
Represented Person
Catchwords:
Guardianship and administration - Request for access to medical reports - Represented person deceased - Access not for the purposes of Guardianship and Administration Act 1990 - Application dismissed
Legislation:
Guardianship and Administration Act 1990 (WA), s 43(1)(b), s 64(1)(a), s 112(4)
Result:
Application dismissed
Category: B
Representation:
Counsel:
Applicant: Self-represented
Represented Person : No appearance
Solicitors:
Applicant: Self-represented
Represented Person : No appearance
Case(s) referred to in decision(s):
Re MB [2004] WAGAB 25
Re MM (2001) 28 SR (WA) 320
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
These reasons relate to a determination by the State Administrative Tribunal that an application for inspection and access to documents held by the Tribunal be dismissed.
The application was for release of copies of medical reports submitted for hearing of applications in respect of MA (the represented person) for the appointment of a guardian and administrator heard by the Guardianship and Administration Board in September 2004.
The application for release of the documents was made by the daughter of MA following the death of the represented person. The applicant sought release to "prove [the represented person] did not have capacity at the time the new will was signed". The will was executed in 2004.
The application was refused because the purpose of the application for inspection is outside the purposes of the Guardianship and Administration Act 1990 (WA) and is contrary to the public interest in maintaining the integrity of the Tribunal's processes in dealing with applications made under that Act.
The application
For the purposes of these reasons, the name of the applicant, the represented person and other parties will be anonymised, consistent with the practice of the Tribunal in respect of applications made under the Guardianship and Administration Act 1990 (WA) (GA Act) to avoid identification of the represented person.
An application for release of documents held on a file of the former Guardianship and Administration Board (the Board), now in the possession of the State Administrative Tribunal, was made on 27 December 2006, pursuant to s 112(4) of the GA Act.
The application is made in the following terms. Access is sought to "a copy of the doctors [sic] reports to prove she did not have capacity at the time the new will was signed. These reports will prove invaluable to my case which will most certainly end up in court".
The file contains documents relating to applications made for the appointment of a guardian and an administrator for MA under the GA Act in 2004. The applicant is the daughter of MA.
The State Administrative Tribunal now exercises the jurisdiction exercised by the former Board.
The Public Trustee was appointed the plenary administrator of the estate of MA and the guardianship application was dismissed by orders of the Board dated 24 September 2004.
Medical and other professional reports were provided to the Board for the purposes of determining whether MA was a person for whom a guardianship and administration order could be made (s 43(1)(b) and s 64(1)(a) of the GA Act).
MA died on 4 December 2006, according to the application for inspection.
Section 112(4) of the Guardianship and Administration Act 1990
The Full Board of the Guardianship and Administration Board, when considering an application for review of refusal of inspection under s 112(4) made by a single member, made the following statements in respect of the operation of that section. See Re MB [2004] WAGAB 25 at [34]:
"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."
And later at [35] 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."
The Full Board went on to say:
"We agree with the observation of the Board in Re MM (2001) 28 SR (WA) 320, 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 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.'"
I adopt the reasoning of the Board; given the nature of the GA Act and its purposes, as the Board said in Re MM, the applicant's reasons for access under s 112(4) of the GA Act will need to be cogent and be justified on a "need to know" basis.
In this case the applicant, the daughter of MA, seeks release of medical reports submitted to the Board for the purposes of the hearing of the applications for guardianship and administration of her mother held on 24 September 2004 for "legal reasons" as set out in her application and expanded in her later letter to the Tribunal dated 2 January 2007. Those reasons involve her challenge to the validity of a will apparently executed by MA in July 2004.
It is not apparent whether an application has been made for probate of the will; however, based on the applicant's application it appears likely that the validity of the will may ultimately be dealt with by the Supreme Court.
The Court may consider in the appropriate case to ask that a file of the Tribunal be made available to the Court. It will then be a matter for the Court to determine the relevance of any material held on the file of the Tribunal to any matter before the Court. The Executive Officer of the Tribunal will be directed to write to the Principal Registrar to alert him to the existence of the file in the possession of the Tribunal.
Frequently there may be material held on a file of the Tribunal containing documents of proceedings commenced under the GA Act which may be said to have relevance for other proceedings which are outside the purposes of the GA Act.
To allow release of or access to the documents for the stated purpose of the application does not uphold the public interest identified by the Full Board in Re MM and confirmed in Re MB, and which I adopt, in maintaining the integrity of the processes of the Board (now the Tribunal) in dealing with applications for the appointment of guardians and administrators.
As was stated by the Full Board, that process "relies on the ability to obtain sensitive information from a variety of sources". In particular, the Tribunal is reliant on the willingness of medical and other professionals to provide reports to enable the Tribunal to undertake its functions under the GA Act.
If it were apparent that reports provided for the purposes of dealing with an application for the appointment of an administrator or a guardian may be available in the way sought by the applicant, then those who produce reports or put material before the Tribunal at hearings may be hesitant to do so. Therefore the application for release of the medical reports held on the file of the Tribunal is dismissed.
Orders
1.The application made under s 112(4) of the Guardianship and Administration Act 1990 (WA) is dismissed.
2.The Executive Officer of the State Administrative Tribunal is directed to write to the Principal Registrar of the Supreme Court to alert him to the existence of a file held by the Tribunal which may be relevant to matters before the Court.
I certify that this and the preceding [23] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS F CHILD, MEMBER
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