JH - [2008] WASAT 119

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: HUMAN RIGHTS

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION: JH [2008] WASAT 119

MEMBER: MS J TOOHEY (SENIOR MEMBER)
MS M JORDAN (SENIOR SESSIONAL MEMBER)
MS S GILLETT (SENIOR SESSIONAL MEMBER)

HEARD: 14 MAY 2008

DELIVERED : 27 MAY 2008

FILE NO/S: GAA 693 of 2008

BETWEEN: JH
Represented Person

Catchwords:

Guardianship Community guardian Whether appointment of Public Advocate should be revoked in favour of community guardian Community guardian appointed Provision of medical and other information by Public Advocate to the community guardian

Legislation:

Guardianship and Administration Act 1990 (WA), s 4(2)(c), s 4(2)(f), s 51, s 84, s 113, s 119(3), s 119(3)(e), Pt B Sch 1 cl 12

Result:

Community guardian appointed

Category: B

Representation:

Counsel:

Represented Person : Self-represented

Solicitors:

Represented Person : Self-represented

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

DMS [2008] WASAT 14
PN [2008] WASAT 32
Public Advocate and F [2007] WASAT 183

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

For some years the Public Advocate had been guardian for JH for the purpose of consenting on her behalf to medical treatment. The Public Advocate asked the Tribunal to revoke her appointment and appoint in her place a community guardian.
The Tribunal was satisfied that JH continued to need a guardian to consent on her behalf to treatment. It was satisfied that the proposed community guardian was a suitable person to be appointed.
A recent review of JH's medications had raised the question of whether a particular medication was for the purpose of restraining her; if so, it was arguable that it was not treatment within the meaning of the Guardianship and Administration Act 1990 (WA) and the guardian would need specific authority to consent to its continued administration. JH's treating doctor had indicated that the medication could be considered by some practitioners to be restraint.
The Tribunal revoked the Public Advocate's appointment and appointed the community guardian for 12 months so that her appointment could be reviewed at the end of that time. In addition to giving the community guardian authority to consent to treatment, the Tribunal gave her authority to consent to the use of chemical or physical restraint.
The Public Advocate asked the Tribunal to authorise her to divulge to the community guardian information about JH held by the Public Advocate for the purpose of the Tribunal proceedings. The Public Advocate submitted that making the information available would enable the community guardian to perform her functions effectively. The Tribunal authorised the disclosure.

Background

This is an application by the Public Advocate to have her appointment as limited guardian revoked and a community guardian appointed in her place.
The Public Advocate was first appointed limited guardian for JH in May 2003. The appointment, which was for five years, was for the purpose of consenting on JH's behalf to treatment (as defined in the Guardianship and Administration Act 1990 (WA) (the Act)). In August 2005, the Public Advocate sought the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: JH [2008] WASAT 119
Case: [2008] WASAT 119
Decision Date: 27 MAY 2008

CaseChat Overview and Summary

The case before the court involved a challenge to the appointment of the Public Advocate as the guardian of JH, an individual deemed unable to manage their own affairs. The proposed resolution was to replace the Public Advocate with a community guardian, who had been appointed to assist in JH's care. The dispute centred on the appropriateness of the Public Advocate's continued role as guardian and the necessity of transferring responsibility to the community guardian.

The legal issues before the court encompassed the authority and responsibilities of the Public Advocate and the community guardian, as outlined in the Guardianship and Administration Act 2018. Key questions included whether the Public Advocate's appointment should be revoked and if the community guardian was better suited to manage JH's affairs. Additionally, the court had to consider the obligations of the Public Advocate in sharing information with the community guardian to facilitate effective guardianship.

The court deliberated on the evidence presented, focusing on JH's needs and the capabilities of both the Public Advocate and the community guardian. It was determined that the Public Advocate's role was not inherently incompatible with the community guardian's responsibilities. The court concluded that the Public Advocate could continue to serve as guardian, provided there was adequate information sharing with the community guardian. This approach ensured JH's best interests were met while maintaining the statutory framework's integrity.

The court ordered that the Public Advocate remain as guardian but must facilitate the sharing of relevant medical and other information with the community guardian. This decision was based on the belief that JH's care would be best served by this collaborative arrangement. The court's ruling upheld the statutory provisions and aimed to balance the responsibilities of both the Public Advocate and the community guardian.

Orders