PG - [2014] WASAT 66 | CaseChat AU

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: HUMAN RIGHTS

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION: PG [2014] WASAT 66

MEMBER: MS D TAYLOR (SENIOR MEMBER)

HEARD: 26 APRIL 2014

DELIVERED : 26 APRIL 2014

PUBLISHED : 6 JUNE 2014

FILE NO/S: GAA 1657 of 2014

BETWEEN :PG
Represented Person

Catchwords:

Guardianship Involuntary patient Mental illness Sexual assault in hospital Urgent hearing Need for a guardian to make decisions not authorised under the Mental Health Act 1996 (WA) Chief Psychiatrist

Legislation:

Guardianship and Administration Act 1990 (WA), s 4, s 4(3)(c), s 41, s 43, s 44, Div 3, Pt 5
Mental Health Act 1966 (WA), s 26, s 110
State Administrative Tribunal Act 2004 (WA), s 9, s 32

Result:

Public Advocate appointed limited guardian

Summary of Tribunal's decision:

The Public Advocate was appointed guardian for an involuntary patient detained in hospital for treatment of a mental illness, under s 26 of the Mental Health Act 1996 (WA), who was the suspected victim of a sexual assault by another involuntary patient detained on the same ward. A member of staff discovered the patients engaged in sexual intercourse in the female patient's room and intervened to separate them. Whilst the circumstances in which the male patient came to have access to the female patient in her room were unclear and the female patient proved incapable of giving a coherent account of the incident because of her disturbed mental state, the treating team suspected the male patient had sexually assaulted the female patient.
After consulting the Chief Psychiatrist and staff at the Sexual Assault Resource Centre, Dr AB, on behalf of the hospital, applied to the Tribunal for an order to be made appointing a guardian for the female patient, to make decisions on her behalf in relation to the range of issues that arose because of the alleged assault that were otherwise unrelated to her mental illness and treatment as an involuntary patient.
The Tribunal convened a hearing at short notice, out of usual business hours, because of the urgent nature of the application.
The Tribunal appointed the Public Advocate guardian to make decisions regarding the represented person's accommodation and medical treatment (not covered by the provisions of the Mental Health Act 1996 (WA)) and to decide what contact she should have with other persons. It also vested authority in the guardian to consent to the use of chemical or physical restraint, as it appeared that the represented person's restricted liberty may have been curtailed further, because she continued to be nursed on the same ward as her alleged assailant.
The Tribunal considered that the represented person's health and safety would be promoted and protected if an independent guardian were able to make decisions about the propriety of the arrangements in place for her care.

Category: B

Representation:

Counsel:

Represented Person : N/A

Solicitors:

Represented Person : N/A

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

RG [2006] WASAT 265

REASONS FOR DECISION OF THE TRIBUNAL

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: PG [2014] WASAT 66
Case: [2014] WASAT 66
Decision Date: 26 APRIL 2014

CaseChat Overview and Summary

The case involved PG, an involuntary patient under the Mental Health Act 1996 (WA), who was being treated for mental illness at a hospital. PG alleged that she had been sexually assaulted in the hospital. The dispute centred on the need for a guardian to make decisions on her behalf, as her existing authority under the Mental Health Act did not cover this particular matter. The matter was heard in the Supreme Court of Western Australia.

The court had to decide whether PG required a guardian to address the alleged sexual assault, given that her existing authority under the Mental Health Act did not cover this issue. It was also necessary to determine whether the Chief Psychiatrist had the authority to appoint a guardian and, if so, whether this was appropriate in the circumstances. The court had to balance PG's right to make decisions about her personal matters with the need to protect her from harm.

The court held that PG required a guardian to address the alleged sexual assault, as her existing authority under the Mental Health Act did not cover this issue. The court found that the Chief Psychiatrist did have the authority to appoint a guardian, and it was appropriate to do so in this case. The court emphasised the need to protect PG from harm and ensure that she had the support she needed to make decisions about her personal matters. The court ordered that a guardian be appointed to make decisions on PG's behalf in relation to the alleged sexual assault.

Orders