JD
[2007] WASAT 80
•5 APRIL 2007
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: HUMAN RIGHTS
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: JD [2007] WASAT 80
MEMBER: MS D DEAN (MEMBER)
HEARD: 23 JANUARY 2007
1 FEBRUARY 2007
DELIVERED : 5 APRIL 2007
FILE NO/S: GAA 2526 of 2006
BETWEEN: SB
Applicant
JD
Represented Person
Catchwords:
Need for guardian - Public Advocate appointed guardian as no other willing to be appointed - Functions of a guardian - Limited guardianship order required to act as next friend and make medical decisions
Legislation:
Guardianship and Administration Act 1990 (WA), s 4, s 4(2), s 43, s 44, s 44(5), s 45, s 45(2)(g), s 46, s 119, s 119(3), s 119(3)(d), Pt 5
State Administrative Tribunal Act 2004 (WA), s 78
Result:
The Public Advocate is appointed limited guardian as next friend and with the function of making decisions in respect of medical matters
The appointment is made for 6 months
Category: B
Representation:
Counsel:
Represented Person : Selfrepresented
Applicant: Selfrepresented
Solicitors:
Represented Person : Self-represented
Applicant: Self-represented
Case(s) referred to in decision(s):
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
The represented person, an 18‑year‑old severely disabled young man, was made a ward of the state as a baby and was raised by foster carers. He had little or no contact from this time with his birth family. On reaching the age of 18, the represented person's wardship expired. This precipitated an application to the Tribunal by the Department for Community Development for the appointment of a guardian.
The represented person was in receipt of funding to provide for the 24 hour care he required and would continue to require for the rest of his life. The funding was administered by the Disability Services Commission. The represented person's foster carers were keen to continue to care for him and to make any necessary decisions about his lifestyle and welfare. Unfortunately, DSC policy precluded them, as paid carers, from taking on the role of formally appointed guardians. At the time of the hearings, discussions were taking place between the several involved government departments with the view to changing the policy thus allowing paid carers to be appointed guardians in cases such as this.
The represented person had multiple medical problems which required ongoing treatment and monitoring. His health was so fragile that it was difficult to predict when he would next require hospitalisation and a medical procedure.
There were two criminal compensation actions in the courts when the matter was heard by the Tribunal. These matters had been briefed to the State Solicitors' Office on the represented person reaching 18 years and no longer a ward of the State.
The Tribunal found that the represented person was a person for whom an order could be made and that he was in need of a guardian. As there was no‑one willing to take on the role of guardian, the Tribunal appointed the Public Advocate limited guardian to make decisions in relation to medical matters and to act as next friend in respect of the outstanding criminal compensation actions. Given the fact that the ongoing discussions between government departments could result in the foster carers being eligible to take on the role of guardian in the foreseeable future, the Tribunal made a six month order.
Background
JD is a severely disabled young man who was a ward of the State from early childhood until he reached the age of 18. Over the years, he has had little or no contact with his birth parents or other family members. On reaching the age of 18, JD's wardship expired leaving him without a formally appointed decision‑maker. The Department for Community Development (the Department) made an application to the Tribunal for the appointment of a guardian to take on the role of decision‑maker.
JD is in receipt of significant funding to provide the care and services he requires. He lives with his foster carers who, with the help of the funding and other support services, provide the 24 hour care he requires.
Oral reasons for the decision of the Tribunal in respect of an application for guardianship made by the Department, were delivered at the conclusion of the hearing on 1 February 2007. These written reasons are provided at the request of the Office of the Public Advocate pursuant to s 78 of the State Administrative Tribunal Act 2004 (WA).
Legislation
The principles to be observed by the Tribunal when making determinations in relation to applications for a guardianship order are set out in s 4 of the Guardianship and Administration Act 1990 (WA) (GA Act).
These principles are:
•making the decision in the best interests of the person;
•every person is presumed to be capable of making reasonable judgments in respect of his or her person unless proven otherwise;
•an order appointing a guardian should only be made if the needs of the person concerned cannot be met by other means that are less restrictive of their personal freedom of decision and action;
•if an appointment is made, a plenary guardian should only be appointed if the needs of the person concerned cannot be met by a limited appointment; and
•the Tribunal should, as far as possible, ascertain the views and wishes of the person concerned.
Section 44 defines who may be appointed guardian. Section 44(5) reads:
"Except where he is appointed to act jointly with another person or other persons, the State Administrative Tribunal shall not appoint the Public Advocate as a guardian unless there is no other person who is suitable and willing to act."
Section 45 refers to the authority and functions of a guardian including making decisions in relation to "any treatment or health care of the represented person" and acting as next friend "to commence, conduct or settle any legal proceedings on behalf of the represented person, except proceedings relating to the estate of the represented person".
Section 46 provides that a person appointed limited guardian may have "such of the functions mentioned in s 45 as the State Administrative Tribunal vests in him in the guardianship order".
Section 119(3) of the GA Act provides the following hierarchy of persons who may consent to the medical and dental treatment of a person who is unable to consent on their own behalf.
"For the purposes of subsections (1) and (2), the person who may consent to treatment is the first in order of priority of the following persons ¾
(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;
(e)any other person who maintains a close personal relationship with the person needing treatment; or
(f)a person prescribed in the regulations."
Section 78 of the SAT Act provides that:
"78. Written reasons may be requested
(1)If the Tribunal makes a decision, whether or not a final decision, without having reserved its decision and does not give its reasons for the decision in writing, a party may, within the period of 28 days after the day on which the decision is given, request that the Tribunal give its reasons in writing.
(2)The Tribunal is to give written reasons that a party requests under subsection (1) within the period of 90 days after the day on which it receives the request or within an extension of that period given by the President."
Information before the Tribunal
Medical and other reports
The Tribunal received written reports from two of JD's treating endocrinologists and a paediatric neurologist. These reports are consistent in the information they provide and refer to JD's severe intellectual disability, cerebral palsy and seizures, blindness due to septo‑optic dysplasia, deficiencies of multiple pituitary hormones and growth hormone deficiency resulting in him being significantly smaller than normal for his age.
The medical reports are consistent in the assessment of JD as being totally dependant on others, both now and in the future, for all his activities of daily living. All agree that he does not have the cognitive capacity to make any reasonable decisions in respect of any major aspect of his life.
Information provided at the hearings
This matter was heard over two hearings the first of which was attended by the carers, LD and MD, the applicant representing the Department and JD, the represented person. The second hearing was attended by the foster mother/carer, LD, the applicant and BT, a representative from the Office of the Public Advocate (the Public Advocate). Neither the foster father nor JD attended the second hearing.
The first hearing was adjourned to enable the Public Advocate to attend and to provide a view about the application.
The Tribunal heard from the applicant and the carers that JD is registered with Disability Support Commission (DSC). JD is in receipt of funding which is managed by DSC. Currently the carers receive a carer payment from DSC. Perth Home Care Services provide much of the additional care required by JD. The foster carers informed the Tribunal that some of their carer allowance is used by them to subsidise JD's funding needs. The carer payment will be terminated by DSC if the foster carers are appointed JD's guardians.
JD was severely neglected while in the care of his birth parents. He was removed from his parents by the Department at approximately two years of age and was placed with his current carers, LD and MD. An action for compensation on behalf of JD in relation to the abuse he experienced while in the care of his parents is currently underway. Lawyers from the Department managed this matter until JD reached 18 years. From information provided at the hearing it appears that this matter has been, or is shortly to be, briefed to the State Solicitors Office leaving no‑one with the formal authority to instruct the solicitors acting for JD.
In addition, another action for compensation has been commenced in relation to a more recent incident which occurred in the school attended by JD. Alleged neglect on the part of the school resulted in JD suffering serious injuries including fractures which were undiagnosed until he returned home after completion of the school day. The Public Trustee is currently acting as next friend in respect to this matter.
There was lengthy discussion at both hearings in respect of the decision‑making functions that might be required by a guardian if appointed. The foster carers expressed concern that DSC might be in a position to make decisions about where JD is to live in the future and they fear that a decision of this sort might not be in accordance with their views or in what they believe are JD's best interests. The foster carers were reassured by the fact that if, and this was considered to be unlikely, DSC attempted to move JD to different accommodation, the foster carers could make an application to the Tribunal for a guardian to be appointed with the accommodation decision‑making function.
Similarly, possible future concerns about the services and service providers for JD can be managed by a later guardianship application if necessary and appropriate.
There was lengthy discussion at the second hearing about a guardian, if appointed taking on the role of next friend. BT, the representative from the Office of the Public Advocate, informed the Tribunal that this is not a function considered to be appropriate for the Public Advocate, if appointed guardian. It is the view of the Public Advocate that this is a function more appropriately vested in an administrator who would be more suitably resourced and skilled to exercise this function.
BT informed the Tribunal that discussions are occurring at the "highest level" between DSC, DCD and the Public Advocate looking at how to resolve the carer payments and guardianship issues. Depending on the outcome of these discussions DSC policy, which currently precludes paid carers from being appointed guardian, may change allowing for the foster carers in this case to be appointed guardians of JD. BT requested that a further adjournment occur while these talks continue and reach a resolution. BT was unable to give a clear timeframe in which any resolution might be reached.
The Tribunal was not willing to adjourn the matter as this would leave JD in a legal vacuum having reached 18 years of age, no longer under wardship and with no formally appointed guardian to make necessary decisions on his behalf.
In discussing the need for a guardian to be appointed to make decisions in respect of medical and health matters for JD, BT highlighted the fact that the carers want to make these decisions themselves. This prompted further discussion about s 119 of the GA Act which unfortunately does not provide the foster carers, because of their paid status, with legal decision‑making authority in respect of health care and treatment.
Findings and reasons
In making a decision about whether a guardianship order can be made, the Tribunal must be satisfied that the requirements of s 43 of the GA Act are met. In this case it was clear, from the information provided in the written reports and at the hearing, that JD is incapable of looking after his own health and safety, is unable to make reasonable judgments in respect of matters relating to his person and is in need of oversight, care and control in the interests of his own health and safety. In other words, JD does not have the capacity to make reasonable decisions for himself about any aspect of his health or welfare. JD's treating specialists concur in their assessment that JD lacks the capacity to make decisions about, or to manage, any major aspect of his life.
In determining the need for an order and the extent of that order, the Tribunal was guided by the fact that JD is a young man with significant cognitive and physical impairments resulting in him being totally dependent on others for all his daily needs, both now and in the future. He is fortunate to have two devoted carers who are willing and able to continue to provide the 24 hour care he requires.
The security of JD's accommodation is not under threat neither are the services he currently receives. If in the future there are changes proposed in relation to these and these changes are not considered to be in JD's best interests, the foster carers will make application to the Tribunal for the appointment of a guardian with the necessary decision‑making functions to protect JD's interests.
As the foster carers are in receipt of a carer allowance, they are precluded from the provisions of s 119 of the GA Act which provides a less restrictive alternative to the making of a guardianship order. Section 119 provides a hierarchy of persons who may consent to treatment for a person who has been deemed incapable of doing so for themselves. The foster carers, if not in receipt of the carer allowance would have been able, in accordance with s 119(3)(d), to give consent to medical treatment for JD.
In making its decision about the functions required by the guardian, the Tribunal is guided by the principles stated in s 4 of the GA Act and finds that a limited order is sufficient to meet JD's needs. The overriding concern of the Tribunal is to make a decision in the best interests of the person. It is deemed to be in the best interests of the person that an order not be made if the needs of the person can be met by other means less restrictive of the person's freedom of decision and action. There is no doubt that most of JD's needs are being met without the need of an order. There are currently only two areas of his life which require the authority of an appointed guardian.
JD has multiple medical problems which require ongoing monitoring and treatment. He is on several different medications for his various medical conditions including medications to manage his seizures and hormone deficiencies. In addition, JD is likely to require surgery on his hips in the future. It is not clear when, or if, this surgery will be required but if so the procedure will be under a general anaesthetic and will require the consent of a guardian. In any case, JD's multiple medical problems and medications require ongoing oversight and monitoring.
With regard to the two actions for compensation currently underway, the Tribunal carefully considered the question as to whether the next friend function would be best vested in a guardian or an administrator. Section 45(2)(g) of the GA Act provides that a guardian may "as the next friend of the represented person, commence, conduct or settle any legal proceedings on behalf of the represented person, except proceedings relating to the estate of the represented person". The Tribunal considered the issue of whether the compensation actions could be considered "proceedings relating to the estate" and found that as these are legal actions without, at this point, a known outcome as such cannot be considered as relating to the estate. In addition, the action is for injuries to the person of JD and not in respect of any matter of his estate. Further, the Tribunal does not consider it is in JD's best interests, nor is there a need, to have an administrator appointed at this point as all JD's financial needs are being met and managed by other less restrictive means. If the compensation actions result in the payment of monies it will, at that point, be appropriate for consideration to be given to the appointment of an administrator to manage and invest those monies appropriately and in JD's best interests.
After due consideration, the Tribunal is satisfied that it is in JD's best interests and a less restrictive option for a guardian, who already has the function of making decisions about other aspects of JD's life, to have the function of next friend.
In deciding who to appoint as guardian the Tribunal was limited by the fact that the foster carers are not proposing themselves as guardians because the current policies of DCS, preclude them from taking on this role without the loss of the carer payment they now receive. This situation may change depending on the outcome of the discussions currently taking place between DSC and other involved government departments. There is no‑one else in JD's life who is willing or suitable to take on the role of guardian, leaving the Public Advocate the guardian of last resort.
Given the fact that discussions are taking place that may result in a change in DSC policy leaving the way clear for the carers to take on the role of guardian, the Tribunal decided that a short order is appropriate.
Decision and Order
On 2 February 2007, the Tribunal made the following order:
1.The Public Advocate be appointed limited guardian of the represented person with the following functions:
(a)Subject to Division 3 of Part 5 of the Guardianship and Administration Act 1990 (WA), to consent to any treatment or health care of the represented person; and
(b)As next friend of the represented person, commence, conduct or settle any legal proceedings on behalf of the represented person, excepting proceedings relating to the estate of the represented person.
2.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.
3.This order is to be reviewed by 1 August 2007.
I certify that this and the preceding [39] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS D DEAN, MEMBER
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