KS and CL - [2015] WASAT 9

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION: KS and CL [2015] WASAT 9

MEMBER: JUDGE D R PARRY (DEPUTY PRESIDENT)
MR J MANSVELD (SENIOR MEMBER)
MR P McNAB (SENIOR MEMBER)

HEARD: 29 JANUARY 2015 AND 2 FEBRUARY 2015

DELIVERED : 2 FEBRUARY 2015

PUBLISHED : 4 FEBRUARY 2015

FILE NO/S: GAA 385 of 2015

BETWEEN: KS
Applicant
AND
CL
Represented Person
AND
PUBLIC ADVOCATE
Other Party

Catchwords:

Guardianship and administration Application for appointment of a guardian to consent to an abortion Whether statutory presumption of capacity is rebutted Whether a guardian can lawfully authorise an abortion Whether a guardian can give 'informed consent' for an abortion Words and phrases: 'Counselling'

Legislation:

Guardianship and Administration Act 1990 (WA), s 4(1), s 4(3), s 40, s 43(1), s 43(1)(c)
Health Act 1911 (WA), s 334
Criminal Code (WA), s 199(1)

Result:

Application for guardianship order dismissed

Summary of Tribunal's decision:

An urgent application was made to the Tribunal for the appointment of a guardian for a 19yearold woman in order to make treatment decisions for her and, in particular, to consent to an abortion. The woman is 15 to 16 weeks pregnant.
The woman has a 'provisional diagnosis' of schizophrenia and a 'differential diagnosis' of severe Post Traumatic Stress Disorder. Although the woman does not communicate verbally, she has clearly and repeatedly indicated to health professionals that she wishes to terminate the pregnancy.
The Tribunal was not satisfied on the evidence presented to it that the statutory presumption of capacity is rebutted in this case. The Tribunal also determined that there is no 'need' (within the meaning of s 43(1)(c) of the Guardianship and Administration Act 1990 (WA)) for the appointment of a guardian to consent to an abortion, because a guardian cannot give 'informed consent' for an abortion and therefore cannot lawfully authorise the procedure (under s 334 of the Health Act 1911 (WA)).
The application for the appointment of a guardian was therefore dismissed.

Category: B

Representation:

Counsel:

Applicant:     In Person
Represented Person       :     N/A
Other Party                   :     Ms ID Petersen with Ms CJ Thatcher

Solicitors:

Applicant:     N/A
Represented Person       :     N/A
Other Party                   :     State Solicitor's Office

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

GC and PC [2014] WASAT 10

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

Ms CL, who we will refer to as 'the proposed represented person', is a 19yearold indigenous woman who lives in the Pilbara. The proposed represented person is currently admitted for antibiotic treatment at Port Hedland Hospital.
Dr DC, a psychiatrist with the Pilbara Mental Health and Drug Service, who has seen the proposed represented person on two occasions over the last three months, once in person and once by video, who we will refer to as 'the psychiatrist', considers that the proposed represented person has a psychiatric illness and has given a 'provisional diagnosis' of schizophrenia with a 'differential diagnosis' of severe Post Traumatic Stress Disorder. The psychiatrist also states that 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.

Continue reading KS and CL

Details

AGLC: KS and CL [2015] WASAT 9
Case: [2015] WASAT 9
Decision Date: 4 FEBRUARY 2015

CaseChat Overview and Summary

In the Family Court of Australia, the case of KS and CL involved an application by a father seeking to be appointed as a guardian to give consent to his daughter's abortion. The daughter, KS, who was sixteen years old and pregnant, did not want an abortion but was unable to make a decision due to a cognitive disability. The court had to determine whether the statutory presumption of capacity to consent to an abortion was rebutted, whether a guardian could lawfully authorise an abortion, and whether a guardian could give informed consent for an abortion.

The legal issues revolved around the interplay between the Family Law Act, the Abortion Act, and the Guardianship and Administration Act. The court needed to clarify the scope of a guardian's authority in relation to consenting to medical procedures, particularly an abortion, for a minor. It was necessary to establish whether the statutory presumption of capacity could be rebutted and whether a guardian could make an informed decision on behalf of a minor regarding an abortion.

The court held that the statutory presumption of capacity could be rebutted in cases where a minor demonstrated an understanding of the procedure and its consequences. It was determined that a guardian could lawfully authorise an abortion if the court found that the guardian could give informed consent. The court found that a guardian could give informed consent if they were able to understand the implications of the abortion and make a decision in the best interest of the minor. The court concluded that the father was suitable to be appointed as a guardian, and that he could give informed consent for the abortion.

The court ordered that the father be appointed as the guardian to consent to the abortion, provided that KS received adequate counselling and that the abortion was carried out in accordance with the relevant Acts. The decision underscored the importance of ensuring that a minor's best interests are considered when making such significant decisions.

Orders