MS

Case [2020] WASAT 146

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION:   MS [2020] WASAT 146

MEMBER:   PRESIDENT PRITCHARD

DR E MARILLIER, MEMBER

MR J MANSVELD, MEMBER

HEARD:   9 SEPTEMBER 2020

DELIVERED          :   25 NOVEMBER 2020

FILE NO/S:   GAA 2779 of 2020

MS

Represented Person


Catchwords:

Guardianship - Application pursuant to s 40(1) of the Guardianship and Administration Act 1990 (WA) - Where represented person over the age of 18 years and an NDIS recipient - Where represented person previously subject of informal arrangements that involved consent to the use of restrictive practices - Introduction of NDIS scheme in Western Australia and State policy to regulate the use of restrictive practices - Whether consent from a guardian to the use of restrictive practices on represented person is required in Western Australia in light of NDIS scheme and State policy - General observations on the nature of restrictive practices, the legal consequences of the use of restrictive practices, and the regulation of the use of restrictive practices in Western Australia - Whether criteria for appointment of a guardian are met and a guardian should be appointed - Whether legal authority of guardian extends to consenting to the use of restrictive practices - Whether a specific authority to consent to the use of restrictive practices is necessary

Legislation:

Age of Majority Act 1972 (WA), s 5(4), s 5(1)(a)
Criminal Code (WA), s 25
Family Court Act 1997 (WA), s 68, s 69(1), s 84(1), s 84(2), s 85
Family Law Act 1975 (Cth)
Guardianship and Administration Act 1990 (WA), s 3, s 4, s 40(1), s 43, s 44, s 45(1), s 45(2), s 46, Pt 9D, Div 2, s 110
National Disability Insurance Scheme (Incident Management and Reportable Incidents) Rules 2018 (Cth), s 16, r 9(2), r 10(2), r 15, r 20, r 20(1), r 20(2), r 22, r 24(1), r 26, Pt 4
National Disability Insurance Scheme (Provider Registration and Practice Standards) Rules 2018 (Cth), r 7, r 20
National Disability Insurance Scheme (Quality and Safeguards Commission and Other Measures) Transitional Rules 2018 (Cth)
National Disability Insurance Scheme (Restrictive Practices and Behaviour Support) Rules 2018 (Cth)
National Disability Insurance Scheme Act 2013 (Cth), s 10, s 10A, s 40, s 73E, s 73Z, s 181A(2), s 181(b), s 181H, s 181H(f)

Result:

Joint limited appointed guardians
Order to be reviewed by 3 April 2024

Category:    B

Representation:

Counsel:

Represented Person : No appearance
Applicants : In Person
First Interested Party : Ms J E Rhodes & Ms P Bagdonavicius
Second Interested Party : No appearance
Third Interested Party : In Person
Fourth Interested Party : Ms R Panetta
Department of Communities : Ms T Clark
Therapy Focus : Ms B Zanetti
Autism Association of Western Australia : Ms C Quirk & Ms J McKenna Kerr
NDIS Quality and Safeguards Commission : Mr A Corradan

Solicitors:

Represented Person : No appearance
Applicants : N/A
First Interested Party : State Solicitors Office
Second Interested Party : No appearance
Third Interested Party

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Details
AGLC
MS [2020] WASAT 146
Case
[2020] WASAT 146
Decision Date

CaseChat Overview and Summary

The matter before the court involved an application for guardianship of an individual, MS, under the Guardianship and Administration Act 1990 (WA). MS, who had reached the age of 18 and was a recipient of the National Disability Insurance Scheme (NDIS), had previously been subject to informal arrangements that allowed for the use of restrictive practices. The introduction of the NDIS in Western Australia, along with the State's policy regulating the use of restrictive practices, necessitated a determination of whether a guardian's consent was required for such practices in the context of NDIS recipients. The application for guardianship sought to clarify whether the criteria for appointing a guardian were met and if a guardian's authority extended to consenting to the use of restrictive practices.

The primary legal issues before the court were whether the criteria for appointing a guardian were met, and if so, whether the legal authority of a guardian extended to consenting to the use of restrictive practices on the represented person. The court had to consider the nature of restrictive practices, their legal consequences, and the relevant regulation in Western Australia. Additionally, the court needed to determine if a specific authority to consent to the use of restrictive practices was necessary under the Guardianship and Administration Act 1990 (WA), given the individual's status as an NDIS recipient.

In addressing these issues, the court noted that the authority of MS's parents to make decisions on his behalf had ended once he turned 18, and thus, they no longer had the legal authority to consent to the use of restrictive practices. The court further examined the authority of a guardian appointed under the Guardianship and Administration Act 1990 (WA), concluding that a plenary guardian's authority did not extend to consenting to the use of restrictive practices, as this power was not vested in a person in whose favour a parenting order had been made. The court held that the authority of a plenary guardian was limited and did not include the right to consent to the use of restrictive practices, which required specific authorisation under the NDIS scheme and State policy.

The court ordered that a guardian be appointed for MS, but clarified that the guardian's authority did not extend to consenting to the use of restrictive practices. The court emphasised the need for specific authorisation for the use of restrictive practices, in accordance with the NDIS scheme and State policy. This decision ensures that the legal framework governing the use of restrictive practices is properly adhered to, protecting the rights and welfare of individuals receiving NDIS services.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

MR J

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Ratio Decidendi

Legal Principle Established

Established by: MR J

The same legal position, in the specific context of parental authority over children, is also established by the Family Court Act 1997 (WA) (FC Act). The FC Act provides that subject to any order of a court, each of the parents of a child who is under 18 years of age has 'parental responsibility' for the child.[67] 'Parental responsibility' is defined to mean 'all the duties, powers, responsibilities and authority which, by law, parents have in relation to children'.[68] Implicit in the conferral of parental responsibility on the parents of a child under 18 years of age is the recognition that such parental authority ends once the child reaches 18 years of age.[69] [67] FC Act s 69(1). [68] FC Act s 68. For a discussion of the comparable provisions of the Family Law Act 1975 (Cth), see B v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 173 FLR 360, 396-397 (Nicholson CJ and O'Ryan J)[69] Cf Secretary, Department of Health and Community Services v JWB and SMB (Marion's Case) [1992] HCA 15; (1992) 175 CLR 218, 237 (Mason CJ, Dawson, Toohey and Gaudron JJ). In short, because MS has attained 18 years of age, the authority his parents had to make decisions on his behalf when he was a child is no longer recognised by the law. (In some contexts, informal decision making arrangements may suffice, but the present case is not one of those.) Accordingly, TS and DS do not have authority, recognised by the law, to make decisions in relation to the use of restrictive practices in relation to MS, simply by virtue of being his parents. The next question which requires consideration is whether a guardian appointed under the GA Act has authority to give consent to the use of restrictive practices in respect of a represented person. Under the GA Act, the authority of a plenary guardian extends to exercising:[70][A]ll of the functions in respect of the represented person that are, under the Family Court Act 1997, vested in a person in whose favour has been made - (a)a parenting order which allocates parental responsibility for a child; and(b)a parenting order which provides that a person is to share parental responsibility for a child,as if the represented person were a child lacking in mature understanding, save that plenary guardians do not have the right to chastise or punish a represented person.[70] GA Act s 45(1). A parenting order[71] may deal with one or more of the following matters:[72][71] A parenting order is an order of the Family Court of Western Australia, by which some or all aspects of parental responsibility may be conferred on a child's parents, or other persons charged with the responsibility of maintaining the child: see FC Act 84(1), s 85.[72] FC Act s 84(2).(a)the person or persons with whom a child is to live;(b)the time a child is to spend with another person or other persons;(c)the allocation of parental responsibility for a child;(d)if 2 or more persons are to share parental responsibility for a child, the form of consultations those persons are to have with one another about decisions to be made in the exercise of that responsibility;(e)the communication a child is to have with another person or other persons;(f)maintenance of a child;……(i)any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child.