JD and LD - [2012] WASAT 242

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: HUMAN RIGHTS

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION: JD and LD [2012] WASAT 242

MEMBER: MR J MANSVELD (MEMBER)

HEARD: 29 NOVEMBER 2012

DELIVERED : 13 DECEMBER 2012

FILE NO/S: GAA 3461 of 2012

BETWEEN: JD
Applicant
AND
LD
Represented Person

Catchwords:

Guardianship and administration Guardian to act in best interests of represented person Tribunal shall not appoint Public Advocate as guardian unless no other person suitable and willing to act

Legislation:

Guardianship and Administration Act 1990 (WA), s 4, s 43, s 44, s 84, s 86, Div 3, Pt 5
State Administrative Tribunal Act 2004(WA), s 74

Result:

Public Advocate reappointed as guardian

Summary of Tribunal's decision:

In 2007, the Public Advocate was appointed as guardian for a young man with a severe intellectual disability. Upon review of the order in 2009, the Public Advocate was reappointed as the young man's guardian.
In 2012, the brother of the young man applied to be appointed guardian because, in his view, the Public Advocate had not made decisions in the young man's best interests. In particular, the brother was concerned about a recent decision of the Public Advocate about the young man's accommodation.
The Tribunal decided that the Public Advocate should remain as the young man's guardian. The Tribunal was not convinced that the brother would act in the young man's best interests.

Category: B

Representation:

Counsel:

Applicant: N/A
Represented Person : N/A

Solicitors:

Applicant: N/A
Represented Person : N/A

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

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

LD (represented person) is a 23yearold man who has a severe intellectual disability. He requires 24 hour supervision and assistance with all his activities of daily living.
On 26 June 2007, the father of the represented person (MD) made applications for guardianship and administration orders under the Guardianship and Administration Act 1990 (WA) (GA Act).
On 20 August 200, the Public Advocate was appointed the represented person's guardian to:
•make decisions about where and with whom the represented person should live;
•determine the services to which the represented person should have access;
•determine the contact the represented person should have with others and the extent of that contact; and
•give consent to the represented person's treatment and health care.
The Public Trustee was appointed the represented person's plenary administrator.
The guardianship and administration orders were set for review in two years.
The brother of the represented person (JD) applied for review of the guardianship and administration orders in January 2009.
Upon review of the orders on 3 March 2009, the Public Advocate was reappointed as the represented person's guardian, with the additional function of acting as his next friend in any claim that might be made under the 'Redress' scheme initiated by the government of Western Australia.
The Public Trustee was reappointed the represented person's plenary administrator.
The guardianship and administration orders were set for review in five years.
On 19 September 2012, JD sought leave for review of the guardianship order made on 3 March 2009.
Leave was granted on 18 September 2012.
The matter was heard on 29 November 2012. The hearing was attended by:
•JD, the represented person's brother;
•MD, the represented person's father;
•RH, the represented person's delegated guardian (guardian); and
•TS, Local Area Coordinator for the Disability Services Commission.
The mother of the represented person (KB) did not attend, although she had attended previous hearings of the Tribunal.
The represented person was not required to attend the hearing as his disability meant that he could not contribute to the proceedings.

Decision of the Tribunal

At the hearing on 29 November 2012, the Public Advocate was reappointed as the represented person's limited guardian with the following functions:
•to decide where and with whom the represented person should live;
•to determine the services to which the represented person should have access;
•to determine the contact the represented person should have with others and the extent of that contact; and
•to give consent to the represented person's treatment and health care.
I said that I would provide written reasons for my decision pursuant to s 74 of the State Administrative Tribunal Act 2004 (WA).
What follows are my reasons.

The Guardianship and Administration Act 1990 (WA)

Under s 90 of the Guardianship and Administration Act 1990 (WA) (GA Act), the Tribunal can, upon review of a guardianship order:
a) confirm the order;
b) amend the order;
c) revoke the order; or
d) revoke the order and substitute another order for it.
The making of a guardianship order is governed by s 43 and s 4 of the GA Act.
Under s 43(1)(b) of the GA Act, before a guardianship order can be considered, the Tribunal must first be satisfied, on all the evidence, that a person is either:
a)incapable of looking after his own health and safety;
b)unable to make reasonable judgments in respect of matters relating to his person; or
c)in need of oversight, care or control in the interests of his own health and safety or for the protection of others.
The starting point is that a person is presumed capable of looking after his own health and safety or making reasonable judgments about his person until the contrary is proved to the satisfaction of the Tribunal: see s 4(2)(b)(i) and s 4(s)(b)(iv) of the GA Act.
If it is determined that the presumption of capacity is displaced then before an order can be made, the Tribunal must further find that the person is in need of a guardian and that his needs cannot be met in a manner less restrictive of his freedom of decision and action: see s 43(1)(c) and s 4(2)(c) of the GA Act.
If it is determined that the person is in need of a guardian, a plenary appointment shall not be made if the appointment of a limited guardian is, in the opinion of the Tribunal, sufficient to meet the needs of the person: see s 4(2)(d) of the GA Act.
The appointment of a limited guardian shall, in its terms, impose the least restrictions possible on the person's freedom of decision and action: see s 4(2)(e) of the GA Act.
In considering any matter, the Tribunal shall, as far as possible, ascertain the views and wishes of the person to whom the application or order applies; however, the primary concern of the Tribunal shall be the best interests of the person: see s 4(2)(f) and s 4(2)(a) of the GA Act.
In appointing a guardian, the Tribunal must be satisfied that the proposed appointee will act in the person's best interests, not be in a position where his interests conflict, or may conflict, with the interests of the person and is otherwise suitable to act as guardian for the person. In determining whether a proposed appointee is 'otherwise suitable', the Tribunal shall take into account, as far as is possible, the desirability of preserving existing relationships within the family of the person, the compatibility of the proposed appointee with the person and his administrator (if any), the wishes of the person and whether the proposed appointee will be able to perform the functions vested in him: see s 44(1) and s 44(2) of the GA Act.
The fact that a proposed appointee is a relative of the person does not of itself mean that his interests conflict, or may conflict, with the person: see s 44(3) of the GA Act.
Except where she is appointed to act jointly with another person or other persons, the Tribunal shall not appoint the Public Advocate as a guardian unless there is no other person who is suitable and willing to act: see s 44(5) of the GA Act.

Background

The Tribunal has before it the reports of the Public Advocate filed on 15 August 2007 and 20 February 2009 in respect to the hearing of the original applications made by MD and the initial review applications made by JD.
Those reports refer to Family Court orders made in February 2007, giving sole parental responsibility to the represented person's then carer (former carer) with whom he resided after he had come to the attention of the Department for Child Protection.

The Family Court orders are said to have restrained KB from accessing medical equipment and funding for the represented person, prevented her from making changes to medical appointments or altering medical contact details, restrained her from examining the represented person for signs of physical abuse and stopped her from making complaints to government agencies or professional services without further order of the court.
The reports of the Public Advocate refer to an ongoing conflict between MD and KB, in particular as to what accommodation and care arrangements should be in place for the represented person. In the 2009 report, it is stated that KB was of the view that the represented person should live with her and JD, which was supported by JD, but not by MD.
The guardian had in place an arrangement that enabled KB and JD to have contact with the represented person without unwanted encounters between them and MB, and also as a consequence of altercations with the former carer that meant that KB and JD were not allowed on the former carer's property.
The guardian reports in these proceedings that due to the personal circumstances of the former carer, the represented person has recently begun to reside with another carer (current carer).

The current application by JD

In his application, JD states that the guardian has failed to ensure the safety of the represented person in the circumstances in which he left the care of the former carer.
The particular reason for the concern about the represented person's safety was not pursued by JD in the hearing. What is prominent in JD's submissions is his wish that the represented person's accommodation be certain and permanent. He states that the model of care he proposes means that the represented person will not be subject to the variable circumstances of any family with whom he might live. He is concerned that the represented person will be subject to further moves in his accommodation in the future.
JD proposes that the represented person live in Albany where he and other family members live and is close to where KB lives. He expects that the represented person will be able to obtain permanent housing with a coresident or residents, so that their pooled funds (it appears derived from the Disability Services Commission) would be sufficient to maintain 24 hour care from employed carers. JD states that he has had preliminary discussions with a community agency in Albany about possible housing opportunities for the represented person.
JD states that he has not put his proposal to the represented person's guardian.
JD states that he has not seen the represented person for over 12 months. He acknowledges some problems with the previous contact arrangements through Brightwater Care, but submits that he is now ready and suitable to play a significant role in the represented person's life.
JD proposes himself as the represented person's guardian. He says that he will undertake that role independent of his parents and their ongoing conflict.
JD has submitted character references that he says attest to his maturity.
In response to the evidence of MD that he has made threats of harm about others should he not be successful in his application, JD states that any such statement he made to MD was made in the heat of the moment and should not be taken seriously.

The evidence and submissions of MD

As the father of the represented person, MD states that he has maintained contact with him and has recently visited him at his current accommodation. He is satisfied with the level of care the represented person is receiving with the current carer.
MD does not agree with the assertion of JD that there is uncertainty in the represented person's care arrangements. He states that the current accommodation is only the represented person's second placement since 2007. MD states that prior to the first placement, the represented person was living in chaotic circumstances.
MD submits that the application by JD is, in fact, as a mouthpiece for KB. He states that KB has demonstrated an inability to care for the represented person or work with agencies that provide him with care and support. MD states that he does not have contact with KB.

In respect to his relationship with JD, MD states in a submission dated 28 November 2012:
[JD] and myself had been estranged until two years ago over this matter … but because I will not support his wants on this matter with [the represented person] … we are once again estranged [irretrievably].

The evidence and submissions of the Local Area Coordinator of the Disability Services Commission (LAC)

The LAC states that she has known the represented person for 14 months.
The LAC says that the represented person's current carer has had many years' experience in caring for individuals with severe disabilities and is committed to the represented person's long term care. The LAC says that the represented person has settled with the current carer and appears to be 'extremely happy'.
The LAC disagrees with the assertion of JD that the model of care proposed by him is superior to the represented person's current care arrangements. The represented person lives with a family, and that type of environment is, in the opinion of the LAC, inherently better than the one suggested by JD in which the represented person would be living with other residents with disabilities in a group home setting supported by a number of carers.
The LAC also disagrees with JD's submission that the represented person's accommodation is uncertain. The LAC states that the represented person receives funding for 24 hour care, seven days per week, through the current carer, which is supplemented by occasional respite care. The represented person also has funding which provides him with access to activities in the community with the assistance of a specialist agency.
As a representative of the Disability Services Commission, the LAC supports the represented person's current accommodation. She also supports the appointment of the Public Advocate as the represented person's guardian rather than JD. She submits that there is unresolved conflict between JD and MD. She states that she is aware of past conflict between JD (and KB) and the former carer, and the respite care provider (Brightwater Care), such that Brightwater Care suspended contact for a time.

The evidence and submissions of the guardian

The guardian states that she consented to the represented person's current accommodation after a change in the circumstances of the former carer. The placement was initially temporary but has since been made permanent. A change to service provider was also made.
The guardian states that she has made treatment decisions for the represented person in an ongoing way, including consenting to the provision of medical tests and investigations and medications. She says that the represented person is in good health.
The guardian confirms the evidence of the LAC that KB and JD were banned from attending Brightwater Care in the middle of 2011 after some incidents, after which contact with the represented person only resumed when conditions for visiting were put in place. The guardian states that JD last attended a contact visit with the represented person in July 2011 and KB in May 2011.
The guardian says that there has been a history of family conflict and 'previous difficulties' between the represented person, his mother, KB, and his brother, JD. There is, however, an acceptance by the guardian that the represented person has a right to have contact with KB and JD, and, to that end, a 'structured contact plan' is being developed. The guardian expects the contact to be similar to previous arrangements, which will include supervised contact between the represented person and KB and JD.
The guardian states that an application was made under the 'Redress' scheme on behalf of the represented person; however, this was unsuccessful.
The guardian submits that the Public Advocate should be reappointed the represented person's guardian with the functions contained in the order made on 3 March 2009, except for the next friend function for which there is no further need.
The guardian submits that the represented person needs a guardian outside of his family because of the ongoing conflict and lack of communication between family members, and because there is a disagreement between MD and JD (and likely KB) about the preferred accommodation for the represented person.

The Tribunal’s decision

It is common ground that the represented person is a person for whom a guardianship order could continue to be made. His severe intellectual disability means that he is incapable of looking after his own health and safety and he is in need of constant oversight and care. His disability renders him unable to make reasonable judgments about any significant aspect of his personal life.
There is also no dispute amongst the parties that the represented person is in need of a guardian.
What has prompted the application for review of the guardianship order by JD is his contention that he should be the appointed guardian, because he contends that he can ensure the represented person's accommodation will be stable and consistent. JD refers the Tribunal's attention to s 44(5) of the GA Act (see above) and submits that he is suitable to act as the represented person's guardian and that, therefore, the Public Advocate should not be reappointed.
I do not agree with JD's submissions.
I find, on the evidence, that the accommodation decisions made by the guardian for the represented person have been made in his best interests.
It is my view that the represented person's accommodation in a family setting is preferable over a placement where he lives in a group setting. He is likely to receive more individual attention within a family, and the difficult task of finding other residents in group living who would be compatible with him is avoided.
Despite what JD asserts, there can be no guarantee that any accommodation will be permanent, given that the represented person's circumstances are subject to change, as they are for any person. The difference for the represented person is that he is very vulnerable and completely dependent on the actions of others. He cannot rely upon his own personal resources to consider alternatives or effect any change.
Because of his dependency, the represented person must have a decisionmaker who will dispassionately review the alternative accommodation arrangements available and judge each on their merits.

I am not satisfied that JD would act in this way. I find that his decisionmaking would be clouded by the relationship he has with his mother, KB, and father, MD. I am not convinced he would act independently of KB. In any case, he is now in dispute with MD about his proposal that the represented person should live in Albany.
I did not have the benefit of having KB's views on the matter, although I note MD's submission that JD and KB take the same position on where the represented person should live. I find that it is more likely than not that the views of JD about where the represented person should live continue to be in accord with the views of KB, as indicated in the Public Advocate reports of 2007 and 2009.
MD and KB do not communicate.
I am concerned that JD is proposing as the represented person's guardian when he has not had contact with the represented person for over 12 months, and he has not attempted to put his accommodation option to the guardian for consideration of its merits. On the evidence before the Tribunal, JD's accommodation proposal is, at best, at a preliminary stage of investigation.

I note that the guardian continues to decide that it is in the represented person's best interests that any contact he has with JD (and KB) requires a contact plan with conditions, given the history with the Brightwater Care arrangements. Other than an assertion by JD, there is no convincing evidence put by him to counter this judgment of the guardian.
Despite the character references submitted by JD, I note with concern his admission to the allegation put by MD that he has made threats of harm about others should he not be successful in his application.
For all of the above reasons, I find that JD would not act in the represented person's best interests and is not suitable to be his guardian.
It therefore remains in the represented person's best interests that the Public Advocate be appointed his guardian because there is no other person suitable or willing to act.
I agree with the Public Advocate that the order should be limited and that the functions given to her should be those contained in the order of 3 March 2009, except the function of next friend. That function is no longer needed because there is nothing further to do on the 'Redress' claim.
This means that the Public Advocate will continue to make decisions for the represented person about his accommodation, medical treatment, contact with others and access to services.
Given the represented person's disability, I see no need to make the term of the order any less than the maximum period available to me under s 84 of the GA Act, that being five years.

Order

On an application for review under s 86 of the Guardianship and Administration Act1990 of an order dated 3 March 2009 concerning the represented person heard before Member J Mansveld on 29 November 2012, it is ordered that:
1.The order is amended, so that it now reads:
The Public Advocate of Level 1, Hyatt Centre, 30 Terrace Road, East Perth, Western Australia be 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)Subject to Division 3 of Part 5 of the Guardianship and Administration Act 1990, to make treatment decisions for the represented person;
(d)To determine what contact, if any, the represented person should have with others and the extent of that contact; and
(e)To determine the services to which the represented person should have access.
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 29 November 2017.

I certify that this and the preceding [81] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR J MANSVELD, MEMBER

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Citations

JD and LD [2012] WASAT 242

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