KD [2005] WASAT 248

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2005] WASAT 248
Act:	GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
Case No:	GAA:548/2005	Heard:	17 JUNE 2005
Coram:	MS F CHILD (MEMBER)	Delivered:	14/09/05
No of pages:	15	Judgment Part:	1 of 1
Result:	Order confirmed
Category:	B
PDF Version

Parties:	KD
Catchwords:	Guardianship and administration Need for a guardian Represented person with acquired brain injury due to solvent use No family members involved in care Chronic health problems Need for lawful authority to give consent to medical treatment Consent not required for "urgent treatment" Role of a guardian to advocate for the best interests of the represented person
Legislation:	Guardianship and Administration Act 1990 (WA), s 3, s 4(2)(c), s 43(1)(b), s 43(1)(c), s 44(5), s 51(2)(a), s 84, s 119
Case References:	Re BCB; Application for Guardianship Order, (2002) SR (WA)338 (BCB) Re BTO (Unreported decision of the Full Board delivered 14 October 2004 (Hon Justice ML Barker, Presiding, Dr A McCutcheon, Member and Ms F Child, Member) Nil

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : HUMAN RIGHTS ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : KD [2005] WASAT 248 MEMBER : MS F CHILD (MEMBER) HEARD : 17 JUNE 2005 DELIVERED : 14 SEPTEMBER 2005 FILE NO/S : GAA 548 of 2005 BETWEEN : KD

Represented person

Catchwords:

Guardianship and administration - Need for a guardian - Represented person with acquired brain injury due to solvent use - No family members involved in care - Chronic health problems - Need for lawful authority to give consent to medical treatment - Consent not required for "urgent treatment" - Role of a guardian to advocate for the best interests of the represented person

Legislation:

Guardianship and Administration Act 1990 (WA), s 3, s 4(2)(c), s 43(1)(b), s 43(1)(c), s 44(5), s 51(2)(a), s 84, s 119

Result:

Order confirmed

(Page 2)

Category: B

Representation:

Counsel:

Represented person : No appearance

Solicitors:

Represented person : N/A

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

Re BCB; Application for Guardianship Order, (2002) SR (WA)338 (BCB)
Re BTO (Unreported decision of the Full Board delivered 14 October 2004 (Hon Justice ML Barker, Presiding, Dr A McCutcheon, Member and Ms F Child, Member)

Case(s) also cited:

Nil

(Page 3)

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of the Tribunal's decision

1 On periodic review of a guardianship order which appointed the Public Advocate as limited guardian with authority to consent to medical treatment for a 39 year old man with acquired brain injury following substance abuse, the State Administrative Tribunal (the Tribunal) confirmed the order.

2 Although the represented person was well cared for in a nursing home in which he lived, there remained a need for someone with lawful authority to give consent to medical treatment for him as he was unable to give that consent and was receiving medical treatment for a chronic lung condition and for epilepsy.

3 The Tribunal confirmed that "urgent treatment" as defined in the Guardianship and…

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: KD [2005] WASAT 248
Case: [2005] WASAT 248
Decision Date: 14 SEPTEMBER 2005

CaseChat Overview and Summary

The case of KD was heard in the Supreme Court of Victoria. The primary parties involved were KD, an individual with an acquired brain injury resulting from solvent use, and the Public Advocate, who was appointed as KD's guardian. The dispute centred around the necessity of appointing a guardian to manage KD's medical treatment and overall welfare, particularly in light of KD's chronic health issues and the absence of family members involved in their care. The court was tasked with determining whether KD required a lawful authority to provide consent for non-urgent medical treatment and whether the Public Advocate was best suited to advocate for KD's best interests.

The court examined the specific legal issues, including the definition of "urgent treatment" and the role of a guardian in consenting to medical treatment for a represented person. It was crucial to establish whether KD's condition necessitated the appointment of a guardian and if the Public Advocate's advocacy would align with KD's best interests. The court also had to consider the broader implications of KD's chronic health problems and the potential impact on their quality of life.

In its reasoning, the court found that KD's acquired brain injury and chronic health conditions required the appointment of a guardian to ensure that KD received appropriate medical treatment and care. The court emphasised that while consent for urgent treatment was not required, lawful authority was necessary for non-urgent medical interventions. The Public Advocate was deemed suitable to act as KD's guardian, given their role in advocating for KD's best interests and ensuring that medical decisions aligned with KD's needs. The court confirmed the order for the Public Advocate to act as KD's guardian, recognising the importance of having a lawful authority to consent to necessary medical treatment and support KD's overall welfare.

Orders

Orders of the court

Order confirmed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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