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,…

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.

Continue reading KE and CPJ

Details

AGLC: KE and CPJ [2006] WASAT 45
Case: [2006] WASAT 45
Decision Date: 24 FEBRUARY 2006

CaseChat Overview and Summary

KE and CPJ were involved in a legal matter that was heard by the Guardianship and Administration Board of Western Australia. The dispute centered around the guardianship and administration needs of an individual with multifaceted disabilities. The primary issue for the court was to determine whether there was a need for a guardian to be appointed for this individual and, if so, the scope of the guardianship order. Specifically, the court had to decide if the guardianship should include the concept of parental responsibility and whether it should also encompass advocacy and making representations on behalf of the represented person. Additionally, the court considered whether treatment, including psychiatric treatment, should be included in the guardianship arrangement.

The Full Board of the Guardianship and Administration Board provided significant guidance on the meaning of "is in need of a guardian," drawing on the case of Review of Guardianship and Administration Orders in respect of MM. The Board concluded that if the provisions of section 43(1)(b) of the Guardianship and Administration Act are met, it usually follows that there will be a need for a guardian as per section 43(1)(c). The court reasoned that unless a guardian or administrator is appointed, there would typically be no one with the legal authority to make decisions for the represented person, leading to a legal vacuum. However, the court also noted that there might not be a need for a guardian if there is another statutory provision that grants legal authority for the decision-making or if there is no live issue or foreseeable conflict in relation to the personal affairs of the represented person.

In considering whether the represented person's needs could be met through informal arrangements, the court determined that the individual was currently living in a mental health facility, where he had been for several months. The facility provided him with a structured environment and comprehensive support, which he appeared to benefit from. The evidence indicated that the level of support he currently enjoyed would be required on an ongoing basis if he was to live safely in the community. Although the current accommodation was not permanent, and there was pressure for him to move on, mental health services had made funds available to support him in the community. The court also noted that a community-based agency had been employed to manage the support the represented person would require.

The final orders of the court were not provided in the text. However, it can be inferred that the court would have made orders regarding the scope of the guardianship and whether it should include parental responsibility, advocacy, and the provision of treatment, including psychiatric treatment, based on the considerations outlined above.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

MR J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: MR J

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.