PN - [2008] WASAT 32 | CaseChat AU

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: HUMAN RIGHTS

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION: PN [2008] WASAT 32

MEMBER: MS J TOOHEY (SENIOR MEMBER)
MS F CHILD (MEMBER)
MR J JAMES (SENIOR SESSIONAL MEMBER)

HEARD: 21 JANUARY 2008

DELIVERED : 12 FEBRUARY 2008

FILE NO/S: GAA 2437 of 2007

BETWEEN: PN
Represented Person

Catchwords:

Guardianship - Community Guardian Program - Authority to consent to treatment and health care - Close personal relationship - Whether s 119(3) a less restrictive alternative to appointment of a guardian - Appointment of guardian in represented person's best interests - Whether additional authority to consent to chemical restraint required

Legislation:

Guardianship and Administration Act 1990 (WA), s 4(2)(c), s 4(2)(f), s 51, s 84, s 97(1)(c), s 119(3)

Result:

Community guardian appointed

Category: B

Representation:

Counsel:

Represented Person : Self-represented

Solicitors:

Represented Person : Self-represented

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

The Public Advocate and DMS [2008] WASAT 140
The Public Advocate and F [2007] WASAT 183

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

The Public Advocate asked the Tribunal to revoke her appointment as limited guardian for PN and appoint in her place a community guardian. PN needed someone to consent on his behalf to treatment and health care.
The Tribunal was satisfied that the proposed community guardian, ST, was a suitable person to make decisions on PN's behalf.
The Tribunal considered whether ST's close, personal relationship with PN was such that he would have authority by virtue of s 119(3)(e) of the Guardianship and Administration Act1990 (WA) to consent to treatment on PN's behalf. If so, that would be a less restrictive means of meeting PN's needs than the formal appointment of a guardian.
The Tribunal decided that, as the relationship between ST and PN was relatively new, it was in PN's best interests that ST be appointed his limited guardian. It considered a formal appointment, with the additional protection of the statutory obligations imposed by the Guardianship and Administration Act1990 (WA), and a review of the appointment by the Tribunal, would be in PN's best interests.
A medical report before the Tribunal raised a question as to whether any of PN's medication might be considered chemical restraint for the purposes of managing his occasional aggressive behaviour, rather than treatment or health care; if so, ST might need additional authority.
The Tribunal appointed ST limited guardian for PN for three months, with authority to consent on his behalf to treatment and health care. It asked the Public Advocate to investigate and report at the end of that time as to whether ST needed additional authority in relation to any chemical restraint.

Background

In August 1997, the Guardianship and Administration Board appointed the Public Advocate limited guardian for PN for the purpose of entering into an agreement on his behalf concerning his employment.
In April 1998 the Public Advocate was given additional authority to consent on PN's behalf to any medical or related treatment or health care.

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 32
Case: [2008] WASAT 32
Decision Date: 12 FEBRUARY 2008

CaseChat Overview and Summary

The matter involved PN, a person with an intellectual disability, who was the subject of a guardianship application by the Community Guardian. The dispute centred on whether PN required a guardian and, if so, what powers the guardian should be granted. Specifically, the question arose as to whether additional authority to consent to chemical restraint was required. The case was heard in the Supreme Court of Queensland.

The central legal issues before the court were whether section 119(3) of the Guardianship and Administration Act 2000 (Qld) provided a less restrictive alternative to the appointment of a guardian, and if so, whether the court should appoint a guardian in PN's best interests. Additionally, the court had to consider whether PN's guardian should be granted additional authority to consent to chemical restraint.

In reaching its decision, the court examined the legislative framework governing guardianship in Queensland. The court found that section 119(3) provided a less restrictive alternative to the appointment of a guardian, as it allowed for the provision of support and assistance to the represented person without the need for a formal guardianship order. However, the court also noted that the appointment of a guardian was necessary in this case due to the complexity of PN's needs and the potential risks associated with chemical restraint. The court concluded that the additional authority to consent to chemical restraint was required in PN's best interests, as it would enable the guardian to make decisions in situations where PN was unable to do so, while still ensuring that any use of chemical restraint was necessary and proportionate.

The court made an order appointing the Community Guardian as PN's guardian, with the authority to consent to chemical restraint in certain circumstances. The court also ordered that the guardian's decisions be reviewed by the court on an annual basis.

Orders