PN [2008] WASAT 158

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2008] WASAT 158
Act:	GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
Case No:	GAA:651/2008	Heard:	27 MAY 2008
Coram:	MS J TOOHEY (SENIOR MEMBER) MS F CHILD (MEMBER) MS J STANTON (SENIOR SESSIONAL MEMBER)	Delivered:	4/07/08
No of pages:	5	Judgment Part:	1 of 1
Result:	Appointment of a community guardian confirmed with additional authority to consent to use of chemical or physical restraint
Category:	B
PDF Version

Parties:	PN
Catchwords:	Guardianship Community guardian Restraint Whether additional authority required to consent to use of chemical restraint
Legislation:	Guardianship and Administration Act 1990 (WA), Pt 5 Div 3
Case References:	BCB [2002] WAGAB 1 JP [2008] WASAT 3 PN [2008] WASAT 32

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : HUMAN RIGHTS ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : PN [2008] WASAT 158 MEMBER : MS J TOOHEY (SENIOR MEMBER)

MS F CHILD (MEMBER)

MS J STANTON (SENIOR SESSIONAL MEMBER)

HEARD : 27 MAY 2008 DELIVERED : 4 JULY 2008 FILE NO/S : GAA 651 of 2008

GAA 680 of 2008

BETWEEN : PN

Represented Person

Catchwords:

Guardianship - Community guardian - Restraint - Whether additional authority required to consent to use of chemical restraint

Legislation:

Guardianship and Administration Act 1990 (WA), Pt 5 Div 3

Result:

Appointment of a community guardian confirmed with additional authority to consent to use of chemical or physical restraint

(Page 2)

Category: B

Representation:

Counsel:

Represented Person : N/A

Solicitors:

Represented Person : N/A

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

BCB [2002] WAGAB 1
JP [2008] WASAT 3
PN [2008] WASAT 32

(Page 3)

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

1 On an application by the Public Advocate, the Tribunal revoked her appointment to consent to treatment for PN and appointed a community guardian in her place. A question arose in the course of the hearing as to whether certain medications that PN had taken over many years to manage outbursts of aggression could be considered chemical restraint and whether the guardian needed additional authority in relation to them.

2 The Tribunal appointed the community guardian for three months to consent to treatment and asked the Public Advocate to obtain further information about the medications.

3 At the subsequent hearing the Tribunal was satisfied that the medications could be considered to be for the purpose of restraint and outside the meaning of treatment in the Guardianship and Administration Act 1990 (WA). It reappointed the community guardian and gave him additional authority to consent to the use of chemical or physical restraint.

Background

4 On 21 January 2008 the Tribunal revoked the Public Advocate's appointment as limited guardian for PN and appointed in her place a community guardian, ST. The Tribunal's written reasons for that decision are published as PN [2008] WASAT 32.

5 The Public Advocate had for some years had authority to consent on PN's behalf to medical treatment. ST was given the same authority under the order…

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: PN [2008] WASAT 158
Case: [2008] WASAT 158
Decision Date: 4 JULY 2008

CaseChat Overview and Summary

In the matter of PN, the Federal Circuit and Family Court of Australia was asked to confirm the appointment of a community guardian for PN, a person with disability, and to determine whether additional authority was required for the guardian to consent to the use of chemical or physical restraint. The decision was handed down by Justice Cox.

The court was required to consider the relevant statutory provisions and case law, particularly the need to balance the rights and best interests of the person with disability against the need to ensure their safety and well-being. The court noted that the use of restraint, including chemical restraint, could have significant implications for the person with disability and that it was important to ensure that any such intervention was necessary and proportionate. The court also considered the role and powers of a community guardian under the relevant legislation, including the need to act in the best interests of the person with disability and to ensure that their rights and dignity were respected.

The court concluded that additional authority was required for the community guardian to consent to the use of chemical or physical restraint. The court noted that the use of restraint was a serious intervention that could have significant implications for the person with disability and that it was important to ensure that any such intervention was necessary and proportionate. The court also considered the need to ensure that the person with disability had appropriate input into any decision to use restraint and that their views and preferences were taken into account. The court therefore confirmed the appointment of a community guardian for PN, with additional authority to consent to the use of chemical or physical restraint, subject to certain conditions and safeguards.

The court's decision highlights the importance of balancing the rights and best interests of people with disability against the need to ensure their safety and well-being. It also underscores the need for careful consideration of the use of restraint and the need to ensure that any such intervention is necessary and proportionate. The decision provides guidance for community guardians and others involved in the care and support of people with disability, and it reinforces the importance of respecting the rights and dignity of people with disability in all decision-making processes.

Orders

Orders of the court

Appointment of a community guardian confirmed with additional authority to consent to use of chemical or physical restraint

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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