MW - [2007] WASAT 125

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: HUMAN RIGHTS

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION: MW [2007] WASAT 125

MEMBER: MS F CHILD (MEMBER)

HEARD: DETERMINED ON THE DOCUMENTS

DELIVERED : 30 MAY 2007

FILE NO/S: GAA 397 of 2007

BETWEEN:

Catchwords:

Guardianship and Administration - Access to medical reports and other documents - Represented person deceased - Access not for the purposes of Guardianship & Administration Act 1990 - Application dismissed

Legislation:

Guardianship and Administration Act 1990 (WA), s 112(4), Sch 1 par 12(c)
State Administrative Tribunal Act 2004 (WA), s 74

Result:

Application dismissed

Category: B

Representation:

Counsel:

Represented Person : N/A

Solicitors:

Represented Person : N/A

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

MB [2004] WAGAB 25
Re MM (2001) 28 SR (WA) 320

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

These reasons relate to a determination by the Tribunal that an application for inspection and access to documents be dismissed.
The application by the sister of MW, was made for release of medical evidence submitted for hearing of an application for the appointment of an administrator of the estate of MW heard by the Guardianship and Administration Board in 1998.
The application for release of medical reports and other documents followed the death of MW in 2006 and was for the stated purpose of establishing her capacity to execute a will in 1997.
The application was refused because the purpose for which release of the documents is sought is outside the purposes of the Guardianship and Administration Act 1990 (WA) and is contrary to the public interest in maintaining the integrity of the Tribunal's processes in dealing with applications made under that Act.

Background

An application for release of documents on a file held by the State Administrative Tribunal was made on 28 February 2007, pursuant to s 112(4) of the Guardianship and Administration Act 1990 (WA) (GA Act). The application was determined by a member of the Tribunal on the papers on 21 March 2007. These written reasons are produced pursuant to s 74 of the State Administrative Tribunal Act2004 (WA).
The documents requested are held in a file created by the former Guardianship and Administration Board now in the possession of the Tribunal. The Tribunal took over the functions and jurisdiction of the former Board in 2005. The file contains documents relating to an application made for the appointment of an administrator for MW made under the GA Act in 1998. Those documents are "held by the Tribunal" and so are subject to the provisions of s 112(4) of the GA Act.
The applicant for inspection is the sister of MW, and the original applicant for the appointment of an administrator.
A limited administrator of the estate of MW was appointed in 1998 following that application and later in 1999 on review the Public Trustee was appointed plenary administrator.
According to a letter on the Tribunal's file received from the Public Trust Office, MW died on 23 December 2006.
For the purposes of these reasons the name of the applicant, the represented person and all other parties including medical witnesses will be anonymised consistent with the practice of the Tribunal in respect of applications made under the GA Act to avoid identification of the represented person and consistent with Sch 1 par 12(c) of the GA Act.
Medical and other reports were provided to the former Board for the purposes of determining the application for the appointment of an administrator. To do this the Board needed to determine whether MW was a person for whom an administration order could be made, that is she was unable by reason of a mental disability of making reasonable judgments in respect of matters relating to all or any part of her estate, whether she was in need of an administrator, whether there were less restrictive alternatives to such an order and who was suitable for appointment.
The medical reports provided in respect of MW refer to a diagnosis of dementia and in one to a report from the doctor to a solicitor made in 1997. Other documents held include a primary carer's report which notes family meetings, conflict about finances and distress caused to MW.

Current application

The application for inspection under s 112(4) of the GA Act is made in the following terms. The order sought is "Access to documents requested", those being: "Reports mentioned in the hearing 05/10/1998: 01/07/1997 Dr R‑[name of solicitor], 29/09/1998 Dr R, 29/05/1998 Assessment. And any other documents on file pertinent to this issue". The reasons given for the application is by way of reference to the revocation by the Board of an enduring power of attorney executed in May 1997 by MW at the time of the appointment of the limited administrator and the need of the applicant to establish the capacity of MW to make a will at the same time the enduring power of attorney was executed.

Section 112(4) of the Guardianship and Administration Act 1990

The Full Board of the Guardianship and Administration Board, when considering an application for review of refusal of inspection under s 112(4) made by a single member, made the following statements in respect of the operation of that section. See MB [2004] WAGAB 25 at [34]:
"The circumstances in which a person is entitled to inspect or have access to documents or other materials held by the Board are limited. This is to be expected in the administration of an Act that provides for the guardianship of adults who need assistance in their personal affairs and the administration of the estate of persons who need assistance in their financial affairs.
…
Documents and other materials held by the Board very often go to matters that are highly confidential in respect of the health and safety of the person who may be in need of a guardianship order. In those circumstances it is to be expected that only a limited class of persons would ordinarily be entitled to inspect documents held by the Board."
And later at [35] the Full Board restated the policy underpinnings of the provision:
"As observed by the Board on an earlier occasion, the provisions of s 112 reinforce two important policies: firstly, the protection of the privacy of the person involved in the proceedings before the Board and in particular a proposed represented person or a represented person; and secondly, the public interest in the integrity of the Board processes which relies on the ability to obtain sensitive information from a variety of sources: see Re MM (2001) 28 SR (WA) 320 at 332."
The Full Board went on to say at [59]:
"We agree with the observation of the Board in Re MM (supra), at 332, that s 112(4) provides the Board with a broad discretion on the application of any person or on its own initiative to allow inspection of or access to documents lodged with or held by the Board for the purposes of any application.
We also agree with the further expression of opinion of the Board in Re MM, at 332, that s 112(4) is not limited in its terms and, in an appropriate case, may include inspection or access to relevant documents or materials for purposes other than proceedings before the Board, although the circumstances in which the Board would ordinarily consider exercising this power may be considered limited. As the Board said in Re MM, at 332:
' … given the sensitive and confidential nature of much of the material held by this Board, we are of the view that where an applicant requests the Board to exercise its discretion under s 112(4) for purposes not related to proceedings before the Board, he or she must provide very cogent reasons and demonstrate a particular need as to why the inspection should be allowed (see generally DeHass v Murcia and Associates, Supreme Court of Western Australia Library No 980633, per Templeman J.) It is not sufficient to rely on a general desire to be informed.' "
When considering the nature of the discretion to allow access under s 112(4), the Full Board confirmed that discretion is a wide one and may be exercised on an application or at the initiative of the Board (now the Tribunal).
The Full Board considered the circumstances when this discretion might be exercised: at [66] and [67]:
" … we think there are good reasons, relating to good public administration, why the Board's power to grant access to relevant documents and materials under s 112(4) should not be construed narrowly. It is possible to envisage a number of circumstances in which, for example, persons charged by law with the responsibility to conduct investigations in the public interest may seek to inspect documents or materials that were lodged with and are held by the Board for the purpose of an application. The Board should be able to determine on an application-by-application basis whether the request for access by a person should be granted. But as the Board said in Re MM (supra), the reasons advanced in support of a request for access under s 112(4) will need to be cogent and be justified on a 'need to know' basis."
The present application for inspection is not in the nature of circumstances that the Full Board envisaged in Re MM (2001) 28 SR (WA) 320, which might lead to the exercise of discretion in favour of the applicant such as an "official investigation in the public interest".
Nonetheless the Full Board considered that there was a requirement that each application under s 112(4) be assessed and determined application by application.
In this case the applicant, the sister of MW, seeks release of medical evidence and other unspecified documents submitted to the former Board for the purposes of the hearing of her application for the appointment of an administrator for MW. The reason advanced in favour of release is that the documents are required to establish MW's capacity to make a will in 1997.
If there is doubt about the capacity of MW to execute a will submitted for probate, then this is a matter for the Supreme Court.
Parties may ask the Court to issue a summons for the production of the Tribunal's file. It will then be a matter for the Court to determine the relevance of any material held on the file of the Tribunal to any matter before the Court.
Frequently there may be material held on a file of the Tribunal containing documents relating to proceedings commenced under the GA Act which may be said to have relevance for other proceedings which are outside the purposes of the GA Act.
To allow release of or access to the documents to the applicant for the stated purpose of the application does not uphold the public interest identified by the Full Board in Re MM, and confirmed in Re MB, in maintaining the integrity of the processes of the Board (now the Tribunal) in determining applications for the appointment of guardians and administrators for persons for whom such applications are made.
As was stated by the Full Board, that process "relies on the ability to obtain sensitive information from a variety of sources". In particular the Tribunal is reliant on the willingness of medical and other professionals to provide reports to enable the Tribunal to undertake its functions under the GA Act.
If it were apparent that reports provided for the purposes of dealing with an application for the appointment of an administrator or a guardian may be available in the way sought by the applicant, then those who produce reports or put material before the Tribunal at hearings may be hesitant to do so. Therefore the application for release of the medical reports and other documents held on the file of the Tribunal is dismissed.

Orders

1.Access is refused.

I certify that this and the preceding [27] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS F CHILD, MEMBER