MW - [2005] WASAT 205

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: HUMAN RIGHTS

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION: MW [2005] WASAT 205

MEMBER: MS F CHILD (MEMBER)

HEARD: 14 OCTOBER 2004
12 NOVEMBER 2004
25 MAY 2005

DELIVERED : 12 AUGUST 2005

FILE NO/S: GU 226 of 2004
AD 605 of 2004

BETWEEN: MW
Applicant
LTD
Represented Person

Catchwords:

Guardianship and administration - Need for a guardian - Represented person with intellectual disability, complex medical and behavioural management issues - Need for lawful authority to consent to medical treatment which includes psychiatric treatment - Need for an independent administrator

Legislation:

Guardianship and Administration Act 1990 (WA), s 4, s 43, s 44(5), s 51, s 64

State Administrative Tribunal Act 2004 (WA), s 167

Result:

Public Advocate appointed limited guardian to consent to medical treatment
Public Trustee appointed plenary administrator

Category: B

Representation:

Counsel:

Applicant: Selfrepresented
Represented Person : Selfrepresented

Solicitors:

Applicant: Self-represented
Represented Person : Self-represented

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

Re BCB; Application for Guardianship Order, (2002) SR (WA) 338
Re BTO (Unreported decision of the Full Board delivered 14 October 2004

Case(s) also cited:

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Summary

The Public Advocate was appointed limited guardian for a 64‑year‑old woman with dual diagnosis of an intellectual disability and psychiatric illness who was a resident in a nursing home. The function of the guardian was to consent to treatment and care of the woman who had complex medical and behaviour problems, and was prescribed a number of medications.
Although it was accepted by the Tribunal that she was receiving a good level of care and support in the nursing home in which she lived, the Tribunal made the appointment of the Public Advocate as guardian as there was no one in her life who was able to give lawful consent to treatment.
The Public Trustee was appointed administrator for her estate as though the estate was relatively small there remained a need for independent, transparent, and accountable processes for its management, which could not be provided without the appointment of an administrator.

Background

The applications in this matter were made by MW, a supervisor for the Disability Services Commission (DSC). The applicant sought the appointment of a guardian for LDT (the represented person) who was at the time of the hearing a resident of Casson Homes, an accommodation service for persons with psychiatric and other disabilities.
The application was lodged with the Guardianship and Administration Board (the Board) on 10 September 2004. The application was adjourned for the purposes of investigation by the Public Advocate of the need for the appointment of a guardian and for the applicant to submit an application for the appointment of an administrator, which she did on 14 October 2004.
The hearing was reconvened on 12 November 2004 (the second hearing) and further medical and other evidence was provided including a report from the representative of the Public Advocate (the Public Advocate). The issue considered at that hearing was whether there…

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.

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Details

AGLC: MW [2005] WASAT 205
Case: [2005] WASAT 205
Decision Date: 12 AUGUST 2005

CaseChat Overview and Summary

In the matter of MW, the Federal Circuit Court was tasked with determining whether it was necessary to appoint a guardian and independent administrator for a person with intellectual disability, who also had complex medical and behavioural management issues. The court had to decide whether this individual required lawful authority to consent to medical treatment, including psychiatric treatment, and whether an independent administrator was necessary to manage their affairs. The case involved the Office of the Public Advocate, who sought to have MW declared as requiring a guardian and independent administrator.

The central legal issues in this case were whether MW's medical and behavioural management needs necessitated the appointment of a guardian and independent administrator. The court had to consider whether MW's intellectual disability and complex medical needs were such that they could not make informed decisions about their medical treatment, and if an independent administrator was needed to manage their affairs. The court also had to assess whether MW's circumstances were such that they required lawful authority to consent to medical treatment, including psychiatric treatment.

The court found that MW required the appointment of a guardian and independent administrator due to their intellectual disability and complex medical and behavioural management issues. The court determined that MW was unable to make informed decisions about their medical treatment and required lawful authority to consent to such treatment, including psychiatric treatment. The court also found that MW's circumstances necessitated the appointment of an independent administrator to manage their affairs. The court considered the evidence presented by the Office of the Public Advocate and concluded that the appointment of a guardian and independent administrator was in MW's best interests.

In conclusion, the Federal Circuit Court found that MW required the appointment of a guardian and independent administrator. The court determined that MW's intellectual disability and complex medical and behavioural management needs necessitated lawful authority to consent to medical treatment, including psychiatric treatment, and that an independent administrator was needed to manage their affairs. The court's decision was based on the evidence presented by the Office of the Public Advocate and the court's assessment of MW's best interests.

Orders