KE and CPJ - [2006] WASAT 45

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: HUMAN RIGHTS

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION: KE and CPJ [2006] WASAT 45

MEMBER: MR J MANSVELD (MEMBER)
MR S JONGENELIS (SENIOR SESSIONAL MEMBER)
MS H LESLIE (SENIOR SESSIONAL MEMBER)

HEARD: 21 NOVEMBER 2005

DELIVERED : 24 FEBRUARY 2006

FILE NO/S: GAA 1616 of 2006

BETWEEN: KE
Applicant
AND
CPJ
Represented Person

Catchwords:

Guardianship and administration Person with multifaceted disabilities Needs of the represented person Need for a guardian Scope of guardianship Guardianship to include the concept of parental responsibility Guardianship to include advocacy and making representations on behalf of the represented person Treatment to include psychiatric treatment

Legislation:

Criminal Law (Mentally Impaired Accused) Act 1996 (WA)
Guardianship and Administration Act 1990 (WA) s 4, s 4(2)(c), s 4(2)(d), s 43, s 43(1)(a), s 43(1)(b), s 43(1)(c), s 44, s 44(5), s 45, s 45(1), s 51(2)(a), s 64(1)(b), s 84, s 119
Mental Health Act 1996 (WA)

Result:

The Public Advocate is appointed limited guardian

Category: B

Representation:

Counsel:

Applicant: Self-represented
Represented Person : Self-represented

Solicitors:

Applicant: Self-represented
Represented Person : Self-represented

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

AB [2005] WASAT 303
LGW [2004] WAGAB 4
NCK [2004] WAGAB 6
Review of Guardianship and Administration Orders in respect of MM (2001) 28 SR (WA)

Case(s) also cited:

BTO [2004] WAGAB 2
JB (unreported decision of the Full Board of the Guardianship and Administration Board (Ms P Eldred, Deputy President; Ms F Child, Member; Ms H Leslie, Member); 17 September 2002

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

The Tribunal appointed the Public Advocate as limited guardian under the Guardianship and Administration Act 1990 (WA) for a 23yearold man who had been the subject of a range of diagnoses including: borderline intellectual and social functioning, poor memory, a lack of selfcare, poor impulse control, post traumatic stress subsequent to sustained abuse as a child, limited ability to anticipate the consequence of his actions, impaired insight, poor judgment and antisocial personality traits.
The young man had recently been assisted with temporary accommodation in a mental health facility but up to that time had not had stable accommodation and had, in the past, approached hospital services to alleviate his homelessness. His complex needs and his difficult behaviours had meant that government agencies had found it difficult to provide consistent support over the years.
The young man had a history of making poor decisions about his accommodation and also had associated with people who presented a risk to the staff of the mental health facility in which he was staying.
Health professionals had assessed the young man to be at risk of ongoing harm in the community unless he received significant support. He had been recently allocated funding by mental health services to assist him obtain and preserve independent living in the community.
The Tribunal decided that the young man was incapable of making personal decisions in his own best interests. In particular, it was decided that he needed a guardian to decide where and with whom he should live, with whom he should have contact from time to time, and to what services he should have access.
The young man was being given psychiatric medications even though some of the medical opinion was that he only had a limited understanding of the role of the medications he was being prescribed. The young man was not an involuntary patient under the Mental Health Act 1996 (WA). The Tribunal decided, therefore, to give the guardian the authority to make medical treatment and health care decisions for him.
The Tribunal also decided that the young man would benefit from the guardian advocating and making representation to relevant agencies and government authorities regarding his eligibility for services. The Tribunal was of the view that this was an appropriate role for a guardian in addition to the decisionmaking role.

Background

These reasons relate to an application for guardianship for CPJ (the represented person) made by KE, social worker with the Alma Street Centre (the applicant).
The application was heard on 21 November 2005 and was attended by the represented person, the applicant, HB (former foster parent of the represented person), JVG (accommodation liaison officer at the Alma Street Centre) and NB and LLB from the Office of the Public Advocate (Public Advocate).

Decision

The Tribunal has decided to appoint the Public Advocate as the represented person's limited guardian with the following functions: to decide where and with whom he should live; to consent to his treatment and health care; to determine what contact he should have with others; and to determine the services to which he should have access, including the authority to advocate and to make representations to the relevant agencies and government authorities on his behalf regarding his eligibility for services.
The Tribunal will provide reasons for its determination by firstly stating the relevant legislation, then discussing the written material, both medical and other submissions, followed by a discussion of the oral submissions and, finally, analysing all the information against the legislation to come to its determination.

Relevant legislation

When considering guardianship, the Tribunal must be satisfied that the represented person is someone for whom a guardian could be appointed (the question of capacity) and if found incapable, whether the person should have a guardian appointed (the question of need). If a guardian is to be appointed, the final questions to be considered are what functions should be given to the guardian and who that guardian should be.
The relevant legislation is contained in s 4, s 43 and s 44 of the Guardianship and Administration Act 1990 (GA Act).
With regard to guardianship, the Tribunal needs to be satisfied that the person for whom an application has been made is incapable of looking after his or her own health and safety, or unable to make reasonable judgments in respect of matters relating to his or her person, or is in need of oversight, care or control in the interests of his or her own health and safety or for the protection of others, and is in need of a guardian (s 43).
The principles to be observed by the Tribunal when dealing with proceedings under the GA Act are set out in s 4. The primary concern of the Tribunal shall be the best interests of the person for whom the application has been made. The remaining principles are, firstly, that every person is presumed to be capable of looking after his or her own safety and health; of making reasonable judgments in respect of matters relating to his or her person; of managing his or her own affairs and of making reasonable judgments in respect of matters relating to his or her estate. Secondly, an order appointing a guardian or administrator shall not be made if the needs of the person concerned could be met by other means less restrictive of their personal freedom of decision and action. Thirdly, a plenary guardian shall not be appointed if the appointment of a limited guardian would be sufficient, in the opinion of the Tribunal, to meet the needs of the person concerned. Fourthly, an order appointing a limited guardian or an administrator shall be in terms that, in the opinion of the Tribunal, impose the least restrictions possible in the circumstances on the person's freedom of action and decision. Finally, the Tribunal shall, as far as possible, seek to ascertain the views and wishes of the person concerned.
The question of who should be appointed guardian is provided for in s 44 of the GA Act. The person must be at least 18 years of age, consent to the appointment and, in the opinion of the Tribunal, will act in the best interests of the person for whom the application has been made; not be in a position where their interests conflict or may conflict with the interests of that person, and is otherwise suitable to act as guardian for that person. When considering suitability, the Tribunal shall take into account as far as possible the desirability of preserving existing relationships within the family of the person for whom the application has been made; the compatibility of the proposed appointee with that person and with the administrator (if any); the wishes of that person and whether the proposed appointee will be able to perform the functions vested in them. A proposed appointee who is a relative of the person for whom the application has been made is not by virtue only of that fact taken to be in a position where their interests conflict with that person. An administrator is not disqualified from being appointed a guardian. Finally, except where appointed to act jointly with another person or 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.

The written material

Included with the application is a "Social Work Report" dated 1 September 2005 by the applicant setting out in some detail the background to the represented person's current situation and why guardianship is proposed for him. The represented person is 23 years of age. The applicant states that as a child, the represented person was repeatedly sexually abused and removed from family care by the Department for Community Development (DCD). Up to the age of 18, DCD and the Disability Services Commission (DSC) supported him but in 2001, the latter terminated the represented person's provisional registration with that agency. Mental health services currently support the represented person.
The applicant states that the represented person does not have regular contact with his family of origin and since moving to Perth from a country town in 2005, he has not had stable accommodation and has approached hospital services to alleviate his homelessness.
The applicant states that the represented person has been variously diagnosed as suffering from: cognitive impairment (borderline IQ and poor impulse control); psychosis and simultaneous use of illicit substances; depression; Aspergers disorder; hebephrenic schizophrenia; polysubstance abuse and post traumatic stress disorder which is related to a significant history of childhood neglect and sexual abuse. As for the represented person's abilities, the applicant submits that he " … has a limited capacity to anticipate the consequences of his actions, which at times has led to inappropriate behaviour, such as inappropriate sexual advances and illicit drug use."
According to the applicant, "assessments by various agencies have consistently assessed [the represented person] as being at risk of further harm in the community unless he is supported." The represented person has recently stayed at an accommodation and rehabilitation service operated by mental health services and he has " … demonstrated capacity to respond to firm structure and limits within a controlled living environment … ". The represented person is reported to have stated that he would like to be given the opportunity to live in a home of his own. Currently mental health services are negotiating funding to assist the represented person to live independently in the community.
The applicant states in his report that guardianship is sought to assist with "housing and accommodation matters" and to " … advocate for [the represented person's] best interests to assist with the coordination of services to assist this young man to live independently in the community." In addition, the applicant proposes a guardian be appointed for the represented person to ensure others do not take advantage of his home environment. He states that the represented person is agreeable to the application.
The Public Advocate has provided a written report to the Tribunal. The report refers to a discussion with the represented person on 3 November 2005, where the represented person stated that he no longer wants the accommodation that the applicant had been attempting to secure through the public housing authority, Homeswest. He and his fiancé have decided they want to live in private rental in a particular suburb with which they will be assisted by his fiancé's parents.
As regards the represented person's capacity pursuant to s 43 of the GA Act, a number of reports have been provided to the Tribunal. They are:

Two assessments in 1999 by a clinical psychologist with DSC

The psychologist states that, in his opinion, the represented person is not intellectually disabled and is not autistic. Rather, he " … has a lifelong history of very poor developmental outcomes in his family and extended family contexts and during his period as a State Ward". And further, " … it is not possible to substantiate an argument for any other significant psychiatric condition that would account for his developmental deficits. His very poor history of nurturance and stability of lifestyle and relationships in addition to the known abuse and neglect can adequately explain these". It is the opinion of the psychologist that the represented person's deficits can be corrected.

A "Discharge Summary" from Graylands Hospital dated 15 August 2000 prepared by a consultant psychiatrist and a registrar in psychiatry

The represented person had been referred to the hospital under the then Criminal Law (Mentally Impaired Defendants) Act 1996 (WA) (now the Criminal Law (Mentally Impaired Accused) Act 1996) after he had been charged with a number of criminal offences. The represented person was diagnosed with antisocial personality traits, alcohol abuse and borderline intellectual function. He was commenced on antipsychotic medication.

A psychological assessment conducted by a senior clinical psychologist with the South West Mental Health Service in late 2002

The represented person was found to be functioning in the "intellectually disabled range (FSQ = 66)" which was one point above the cutoff criteria set by DSC for acceptance into its service. Given variations in test scores, however, the psychologist was of the view that the represented person was eligible for DSC services. The psychologist states that the represented person " … does not have the intellectual or social capacity to live independently. With respectful support, guidance and ongoing training [the represented person] may be able to maintain a degree of autonomy. However, it is likely that he may always require a mentor or close affiliate to advocate for him and to assist him to negotiate his way in society". The psychologist is concerned about the represented person's sexualised behaviour which, in her view, involves a degree of risk to others, particularly young children and young females.

A report by a medical officer at Graylands Hospital dated 16 April 2003

In this report, the diagnosis for the represented person is "mild mental retardation (IQ = 71)" and hebephrenic schizophrenia. It was assessed that the represented person is incapable of making reasonable decisions in relation to his personal health care, accommodation and financial affairs.

A report dated 16 April 2003 by a senior social worker at Graylands Hospital

The social worker there stated that the represented person has an erratic, intrusive behavioural pattern, is impulsive, easily manipulated and exploited by others.

A "Briefing re: [the represented person]" dated 27 November 2004 completed by the then acting clinical coordinator for the Upper South West Child and Adolescent Mental Health Service

He has attended to the represented person for four years and has " … never once been convinced as to the presence of any schizophrenic disorder." He is not convinced that the antipsychotic medication prescribed for the represented person is targeting any ongoing psychotic process. The psychiatrist is of the view that the represented person has almost no capacity to anticipate the consequences of his actions and that this is the "primary problem." The represented person's selfcare remains extremely poor and he accepts that he regularly "destroys"[ed] his supports by his "aberrant behaviour."

An occupational therapy assessment completed on 11 May 2005 at the Alma Street Centre whilst the represented person was an inpatient

It was assessed that the represented person has developed only limited independent living skills and that he would require further support and training before independent living could be considered an option for him.

A risk assessment dated 16 May 2005 to assist the Alma Street Centre in discharge planning, conducted by the State Forensic Mental Health Service

As to his mental state, the represented person was assessed as having " … confusion with regard to chronological history and some thought disorder. He was not floridly psychotic. He demonstrated impaired insight and poor judgment. His cognition, though grossly intact, continues to be impaired". The represented person is considered to have a high risk of reoffending in a minor manner in the future and is considered at risk of being a victim. He would benefit from appropriate accommodation and supervision and needs a " … concrete management plan through multi agencies where everyone agrees with the plan".

A "brief overview" dated 22 August 2005 of the represented person's stay at an accommodation and rehabilitation service operated by mental health services

The represented person had been admitted to the service on 30 May 2005 and he had stayed there at the time of the overview for twelve and a half weeks. He is stated to have poor memory retention, minimum impulse control and required daily prompting for showering, changing and laundry of clothes, and tidying his room. He is said to need escorts when shopping or attending appointments because of his poor memory and concentration. He is said to be unable to differentiate between those people who are safe friends and those who are unsafe.

Two reports from a consultant psychiatrist at the Alma Street Centre dated 12 September 2005 and 21 November 2005, the latter submitted at the hearing

The represented person is stated as having diagnoses of " … intellectual disability … probable Aspergers Syndrome and as an adult [he] has had a diagnosis of paranoid schizophrenia against a background of polysubstance abuse". As to his functional abilities, the psychiatrist states that the represented person's " … cognitive impairment is manifested as poor problem solving, poor social skills and levels of disorganisation, necessitating prompting with selfcare and supervision with finances, cooking and budgeting". The represented person is being prescribed depot Risperidone fortnightly, Olanzapine 10 mg at night and Valporate 500 mg twice daily. The psychiatrist is of the view that the represented person has only a limited understanding of the role of the medications and that he requires a high level of support to live in the community. The represented person has a forensic history.

A "to whom it may concern" note dated 5 September 2005 by HB, former foster parent for the represented person.

HB states her view that the represented person does not have a sense of "community living" and does not comprehend the consequences of his actions. If left to his own devices, he will not take his medications and will not look after his personal hygiene. She states he is "sexually inclined" and will put himself at risk because of this. HB is concerned that the represented person will return to the home of his birth mother. She states that guardianship will give him the "best quality of life" and will mean he can have contact with his family of origin. HB states she acts as the represented person's advocate.

Other written material provided to the Tribunal

The first is a "Decision Review Form" dated 22 September 2005 by the Department of Housing and Works which states that applications for priority housing and rent assistance have been declined on the basis that the represented person requires intensive support in the community, and the view that supported housing would be more appropriate for him. The second is a "Resource Briefing Note", undated and unsigned by the Office of Mental Health. It states that mental health services will continue to care for the represented person in the community, however it " … cannot provide the full range of daily care [the represented person] requires". A proposal for funded care in the community is mentioned and recommended.

Oral submissions (the hearing)

The represented person states that he is engaged to be married and hopes to get accommodation in the community in the near future. He states that he has been discussing with the applicant the possibility that his fiancé can live with him some months after he finds accommodation. He states that he needs a "little bit" of assistance, "not much though" to make decisions about his accommodation. He wants permanent accommodation with his fiancé.
HB states that she is still the advocate for the represented person as regards his family of origin. It is her view that children should always have contact with their family. She believes that the represented person has made wrong decisions, even though he knows what he wants. HB says she is concerned that the applicant, who has assisted the represented person significantly, will not be able to maintain the current level of input and that consistency is required in the represented person's life which would be achieved by guardianship and which he has not had in the past.
The applicant states that recurrent funding has been made available to the represented person through mental health services to support him to live in the community. It is anticipated that cluster or group home accommodation will be made available to the represented person in 2007 or 2008. This housing will have 24hour supervisor support. The recurrent funding will be available until the represented person can access the cluster home accommodation. Mental health services has arranged for a communitybased agency to manage the recurrent funding and to provide intensive support and skills development to the represented person.
The applicant submits that guardianship is needed for a number of reasons: to negotiate the terms of the service provision that will be offered to the represented person in his home; to ensure that the represented person cannot arbitrarily terminate services and to have some control over the people the represented person might associate with particularly those whom he might allow to stay at his home and who are a risk to his safety and the safety of others. It has been the case in the accommodation in which the represented person is currently staying that acquaintances of his have needed to be removed because of safety issues for staff.
The applicant submits that a guardian would provide an authority figure for the represented person and he would respond positively to such a person. The applicant states that he has observed this occurring with the Public Trustee as the represented person's administrator. Where negotiations between mental health staff and the represented person have failed on matters such as budget planning, staff has been able to turn to the administrator for a "final ruling" and this has progressed the negotiations. The applicant puts it this way:
"Is to have that advocacy that we can actually have a final point where [the represented person] is aware of his individual rights to try and negotiate, but if it doesn't work out, there's going to be an independent person that could still step in with the service provider and [the represented person] to work out a a way of working." (Page 22 of the transcript.)
The view of the applicant is that a limited guardianship order is sufficient. The functions of the guardian should be to decide accommodation, service provision and which persons the represented person can allow to stay in his home from time to time.
The applicant states that the represented person is not currently the subject of a Community Treatment Order under the Mental Health Act 1996. He is "receptive to treatment" from mental health services, however, the applicant states that " … I think informed consent would possibly be a difficult one to say in honesty, with [the represented person]. And further: "At the time when [the represented person] presents, he presents voluntarily. He has the choice to not turn up to the appointments." (Page 55 of the transcript.)
Both the applicant and HB state their concern that DSC has refused to provide services to the represented person. It is the understanding of HB that discussions have taken place at senior management levels of DSC and mental health services but that there have not been recent discussions at the level of government ministers. The applicant states that the funding provided by mental health services is, in his view, insufficient to meet all the represented person's needs. HB submits that the represented person requires 24-hour support and that the current funding will only allow six hours a day support.
JVG, the accommodation liaison officer with the Alma Street Centre, submits that the represented person has made remarkable progress while he has been staying in the accommodation and rehabilitation service operated by mental health services. With the support and direction provided to the represented person, he has been manageable and he has stayed in the accommodation. JVG is of the view that the proposed support of six hours a day will potentially work. JVG states that the Department of Housing and Works is open to providing accommodation for the represented person but initially there was concern that the represented person could not understand the terms of the tenancy agreement and also that he might not have the capacity to maintain the accommodation without someone representing his interests.
The Public Advocate submits that a guardian is not needed for the represented person. He will have ongoing case management support through the community-based agency employed to manage the mental health funding and also through the Alma Street Centre. The represented person has been compliant since he has been accommodated in a mental health service facility and there is no reason to suggest his approach to supported accommodation will change. If the represented person decided to walk away from his accommodation then a guardian, if appointed, would look to the case manager to persuade him to return. The guardian would not undertake this role. The Public Trustee as administrator and leaseholder of the represented person's future accommodation could have undesirable people removed from the accommodation by way of restraining orders, for example. Or the case manager could assist the represented person with the restraining order process.
The Public Advocate states that there will be further supervision through the Office of Mental Health monitoring the funding contract with the communitybased agency.
HB argues that if the communitybased agency found the represented person's circumstances too difficult, or if he disagreed with a particular aspect of service provision, then the agency would need to be able to contact someone with authority. If not then the support might break down. HB states that whilst she is willing to remain an advocate for the represented person with his family of origin, the overall responsibility for him should be with an appropriate agency or organisation.
The applicant submits that whilst the Alma Street Centre will remain involved with the represented person, with him no longer in the mental health facility and the recurrent funding in place, that input will be reduced to psychiatric assistance and social work or community mental health assistance each four to six weeks. If a problem arose, then the Alma Street Centre social work team might be requested to become involved but the extent of that would depend on the availability of a social worker. Whilst the Alma Street Centre team could assist with a restraining order it would only do so if the represented person agreed to it.

Discussion of the submissions and findings of the Tribunal

Although the represented person has been the subject of various diagnoses since at least 1999 when he was 17 years of age, the medical and allied health reports describe a consistent set of problems and behaviours which affect his ability to look after his own health and safety and make reasonable judgments about matters relating to his person. These are, borderline intellectual and social functioning, poor memory, a lack of self-care, poor impulse control, post traumatic stress subsequent to sustained abuse as a child, limited ability to anticipate the consequences of his actions, impaired insight and poor judgment and antisocial personality traits.
Concern has also been raised about the represented person's overtly sexualised behaviour and how this might pose a risk to young children and young females.
The assessments and reports provided to the Tribunal show that that the represented person is in need of intensive support and skills development to enable him to live safely in the community. The reports and assessments also show that his disabilities prevent him from making reasonable judgments about his living conditions and the support he requires.
The Tribunal therefore finds that the represented person is someone for whom a guardian could be appointed and that he satisfies the provisions of s 43(1)(a) and (b) of the GA Act.
When a person is found to be incapable, pursuant to s 43(1)(b) of the GA Act, the question that next has to be considered is whether he "is in need of a guardian" pursuant to s 43(1)(c).
The meaning of "is in need of a guardian" was considered by the Full Board of the Guardianship and Administration Board in Review of Guardianship and Administration Orders in respect of MM (2001) 28 SR (WA) at 320 332.
" … it is apparent that where the provisions of s 43(1)(b) are met it will usually follow that there will be a need for a guardian as provided in s 43(1)(c). The same can also be said in relation to the need for an administrator under s 64(1)(b). This is so because unless a guardian or administrator is appointed there would in most cases be no one with legal authority to make decisions in respect of the represented person. There would in other words be a legal vacuum. Therefore the 'need' in those sections in our view means the 'need' for someone to have formal legal authority to make decisions on behalf of the represented person in order to resolve issues relating to the personal affairs of the represented person or to manage and protect the financial estate."
There may, however, not be a need for a guardian pursuant to s 43(1)(c) if for example, " … there is some other statutory provision which gives legal authority for the decisionmaking in question […] or if there is in fact no live issue or foreseeable conflict in relation to the personal affairs of the represented person so as to give rise to the need for this Board to intervene in the life of the represented person by making a formal order." (MM at 330).
The Tribunal must further determine "need" by taking into account the meaning of "needs of the person" in s 4(2)(c) of the GA Act which was also considered by the Full Board in MM (at 330):
" … the phrase 'needs of the person' … involves a different test. The 'needs' there described are of wide import and encompass all the wants and necessaries of the person. Thus, there is a twostep process. The Board must first determine whether there is a need for a guardian in s 43(1)(c) (or a need for an administrator in s 64(1)(b)) and then move on to the issue whether, notwithstanding the absence of any formal legal authority to deal with the affairs of the person, the needs of that person can nevertheless be met under informal arrangements which are less restrictive of the person's freedom of decision and action."
The represented person is currently living in a mental health facility and has done so for several months. That facility provides him with a structured environment and support from which he appears to have benefited. The support has been comprehensive. The evidence shows that the level of support he presently enjoys will be required in an ongoing way if he is to have a chance of living safely in the community. The current accommodation is not permanent, in fact the represented person has stayed longer than is generally allowed and there is pressure for him to move on. Mental health services have made funds available to support him in the community. The assistance from the Alma Street Centre staff will be reduced as the community option is progressed. A communitybased agency has been employed to manage the support the represented person will require.
Decisions must be made as to what type of accommodation and service support will best suit the represented person's needs. The represented person states simply that he wants permanent accommodation with his fiancé and that he requires a "little bit" of assistance with this. The evidence shows that he has not, in the past, made decisions about accommodation in his own best interests. In addition, the submission of the applicant from the represented person's stay at the mental health facility, is that at times he associates with people who pose a risk to him and others. HB has also raised the issue of contact with his family which she submits should occur. The represented person is also being prescribed anti-psychotic medication but the applicant is not convinced that he can give informed consent. This view is supported in the report of the consultant psychiatrist of 21 November 2005 which states that the represented person has only a limited understanding of the role of his medications. The represented person is not currently an involuntary patient under the Mental Health Act 1996.
In these areas of the represented person's life, there is a vacuum in the decisionmaking which could be filled by the appointment of a guardian. In respect of the psychiatric treatment currently prescribed, the Tribunal agrees with the reasoning of the Tribunal in AB [2005] WASAT 303, and with reference to earlier decisions of the Full Board of the Guardianship and Administration Board in Re BTO [2004] WAGAB 2 and Re JB (unreported decision of the Full Board of the Guardianship and Administration Board (Ms P Eldred, Deputy President; Ms F Child, Member; Ms H Leslie, Member); 17 September 2002), that the definition of "treatment" in the GA Act does not preclude psychiatric treatment subject to the particular limitations stated in Re JB.
The Tribunal therefore finds that the represented person is in need of a guardian pursuant to s 43(1)(c) of the GA Act in the areas of decisionmaking mentioned, namely accommodation, service support, contact with others and medical treatment.
The Public Advocate submits that the informal arrangements currently in place obviate the need for a guardian and that the needs of the represented person can be met less restrictively than by the appointment of a guardian (s 4(2)(c) of the GA Act). It is argued that, as the represented person has been agreeable to the accommodation and support in the mental health facility, his compliance should continue with ongoing case management from the Alma Street Centre and the communitybased agency once he secures independent accommodation. As for the concern that the represented person might allow people to stay ay his home who pose a risk to him, the administrator, as lessee, has the authority to have those persons removed.
The Tribunal does not agree with the Public Advocate's submissions. The represented person is at a critical point in his young life where the opportunity exists for stable and consistent support with his accommodation in the community. His view of this opportunity is limited to the wish to have accommodation for himself and his fiancé but as the Public Advocate reports, the represented person has already stated that he does not want the public housing accommodation the applicant has been attempting to secure but wants private rental in a particular suburb. The crucial decisions that need to be made about accommodation and support cannot be left to the expectation that the represented person will be able to negotiate and reach agreement about what is best for him with mental health services and the community-based agency contracted to manage the support services. The Public Advocate's view is not supported by the history of the represented person or by his stated lack of capacity to plan and carry through with decisions that are in his best interests.
The same can be said for the represented person's choices in the type of people with whom he associates. The Tribunal is of the view that he will need protection from his acquaintances from time to time which he is unable to do for himself. In respect to the issue of contact with others, there is also a need to regulate contact with the represented person's family given the reported abuse in the early years of his life. The Tribunal finds that the represented person is not capable of making these decisions in his own best interests.
There is also no less restrictive alternative to the appointment of a guardian to make decisions about the represented person's medical treatment and health care. Section 119 of the GA Act is a statutory means by which treatment decisions can be made for an incapable person without the need to appoint a guardian. There is, however, no one available for the represented person, in the hierarchy of persons able to make treatment decisions under s 119 and who meets the requirements of that section.
The situation with the represented person is that he presents with multifaceted disabilities, which means that different agencies are involved or could become involved in his care. The fact that DSC has to date refused to provide services to the represented person is an example of the difficulties that are faced in pursuing services, coordinating the proposals for services and in choosing options that might be offered to the represented person from time to time. A legal guardian is charged with the responsibility of advocating in respect of the represented person and in his particular best interests (s 51(2)(a) of the GA Act). In this regard, the guardian legally stands in the shoes of the represented person and this sets the guardian apart from service providers generally. This, in the Tribunal's view, can only be of benefit to the represented person.
A question is raised before the Tribunal from time to time about the usefulness of a guardian in situations where the guardian has no legal authority to make decisions, or where, for other reasons, it is put that the guardianship order would not be workable because the person for whom the order has been made is able to act contrary to the guardian's decisions. It appears, from the information available to the Tribunal in the case of the represented person, that he has often gone against the useful advice provided by medical practitioners and allied health professionals and has regularly lost his supports by his problematic behaviour. The Tribunal accepts that this is a continuing issue for the represented person and those who attempt to assist him, however, it is not of itself an argument against the appointment of a guardian.
This issue was considered by the Full Board of the Guardianship and Administration Board in LGW [2004] WAGAB 4. In that case, the Board considered the scope of guardianship with reference to the descriptions of the functions of a guardian set out in s 45 of the GA Act. The Board stated at para 35:
"…It appears to us that the description of the functions in s 45(1) is clear in its terms. The references to the provisions of the Family Court Act in our view describe a bundle of responsibilities that often include decision-making but may also cover a range of other functions, duties and powers that attach whenever one has the equivalent of parental responsibility for the long-term and day-to-day care, welfare and development of a represented person. This includes acting to assert and protect the rights and interests of the child against third parties and making representations on behalf of a person."

In accepting this reasoning the Full Board of the Guardianship and Administration Board in a later case, NCK [2004] WAGAB 6 at para 64, put the matter this way:
"It follows that whether a person is in need of a guardian is the ultimate touchstone in relation to which the Board must decide that the order should be made. The concept of need is not to be determined by reference to whether particular "authoritative" decisions are required on behalf of a person, but whether there is, or may be, a need for a guardian to intervene, in a more generalised sense, in the affairs of that person: see Re Review of Guardianship and Administration Orders in respect of MM (2001) 28 SR (WA) 320; Re LGW (supra) at pp 4 10."
This Tribunal agrees with the reasoning in LGW and NCK and, in the case of the represented person, is of the view that the appointment of a guardian for him should reflect the mix of decisionmaking that is required and has been earlier mentioned in these reasons, and also reflect another aspect of "parental responsibility", that of making representations on his behalf, and in his case, to relevant agencies and government authorities regarding his eligibility for services.
The Tribunal is not convinced that the represented person is currently in need of a guardian with plenary powers, and in keeping with the principle that a plenary guardian should not be appointed if a limited guardian is sufficient (s 4(2)(d)), appoints a guardian with the following functions: deciding where and with whom the represented person should live; consenting to his treatment and health care, deciding the contact he should have with others, determining the services to which he should have access and advocating and making representations to relevant agencies and government authorities regarding his eligibility for services.
No person has proposed themselves as guardian for the represented person, therefore pursuant to s 44(5) of the GA Act, the Public Advocate must be appointed. As to the length of the order, the Tribunal is of the view that the represented person will likely require the authority and advocacy of a guardian for the foreseeable future. The Tribunal will therefore make the order for maximum period allowed under GA Act, namely five years (s 84).

I certify that this and the preceding [71] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR J MANSVELD, MEMBER