PR
[2021] WASAT 32
•11 MARCH 2021
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: PR [2021] WASAT 32
MEMBER: PRESIDENT PRITCHARD
MR D AITKEN, SENIOR MEMBER
DR E MARILLIER, MEMBER
HEARD: 19 NOVEMBER 2020
DELIVERED : Ex tempore
PUBLISHED : 11 MARCH 2021
FILE NO/S: GAA 3818 of 2020
PR
Represented Person
Catchwords:
Guardianship - Application pursuant to s 17A of the Guardianship and Administration Act 1990 (WA) - Review by Full Tribunal of determination of single member to revoke guardianship order - Where represented person transient, does not engage with services, and has a lengthy history of involvement with the criminal justice system - Where represented person diagnosed with chronic paranoid schizophrenia - Whether represented person is incapable of looking after his own health and safety, or unable to make reasonable judgments in respect of matters relating to his person, or in need of care, oversight or control in the interests of his own health and safety - Whether represented person 'needs' guardian - Consideration of whether, in light of the represented person's interaction with the mental health system, there is a 'need' to appoint a guardian - What authority, if any, should be conferred upon a guardian for the represented person
Legislation:
Guardianship and Administration Act 1990 (WA), s 3, s 4, s 17A, s 43, s 84
Result:
Application allowed
Category: B
Representation:
Counsel:
| Represented Person | : | No Appearance |
Solicitors:
| Represented Person | : | No Appearance |
Case(s) referred to in decision(s):
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
(These reasons were delivered orally at the conclusion of the hearing. They have been edited to correct matters of grammar and infelicity of expression.)
Introduction
A senior social worker at the State Forensic Mental Health Service (Applicant) has applied pursuant to s 17A of the Guardianship and Administration Act 1990 (WA) (GA Act) for a review of a decision made by a single member of the Tribunal on 17 August 2020 (Review Application).
In that decision the learned Member declared that the circumstances for the appointment of an administrator in respect of PR's estate were met and that an administrator should be appointed. Relevantly for present purposes, the learned Member also revoked a guardianship order that had been made in respect of PR on 3 July 2019.
The only aspect of the orders made on 17 August 2020 which is the subject of the present Review Application is the decision to revoke the guardianship order.
PR did not attend the hearing of the Review Application. Consequently, the Tribunal has not had the benefit of his views in respect of whether a guardianship order can and should be made. However, we are satisfied that PR has been served with notice of the proceedings, that service having taken place recently while he was incarcerated.
For the reasons which follow, we have concluded that a guardianship order should be made and that the Public Advocate should be appointed the limited guardian in respect of PR. The functions which will be given to the guardian are outlined later in these reasons.
Factual background
PR is a 45yearold Aboriginal man. He is from remote Western Australia.
Very little information was available to the Tribunal in relation to PR's early life history. The information that is before the Tribunal is that PR has had little schooling and minimal employment. He has a history of drug use from a young age, including methamphetamine and cannabis, and, most significantly for present purposes, he has a long-standing and chronic mental illness. PR was first admitted to the Frankland Centre in 2008 and was diagnosed with chronic paranoid schizophrenia.
The Tribunal was advised that in the last 12 months PR has had four mental health admissions to the Frankland Centre, which follows a history of numerous psychiatric admissions over the preceding years.
PR has also been in and out of the criminal justice system on many occasions since 2002, including for very serious offences (including one offence of manslaughter).
The information before the Tribunal also reveals that PR does not have any significant family support. He has occasional contact with his family but does not have supportive family circumstances.
As far as the Tribunal can ascertain, PR is homeless.
The Tribunal first appointed a guardian for PR on 1 May 2018. The Public Advocate was appointed PR's limited guardian with powers to decide where he was to live, with whom he was to live, what treatment decisions should be made for him, and the services to which he should have access. On the same occasion the Public Trustee was appointed as PR's plenary administrator.
Those orders were reviewed on 3 July 2019 and the administration order was confirmed. The guardianship order was varied to add a further function to those functions previously conferred on the Public Advocate, namely, the power to seek legal advice and representation on PR's behalf and to advocate for him in any police investigation, criminal charges or related proceedings.
On 17 August 2020, those guardianship and administration orders were again reviewed. As we have already observed, the administration order was confirmed but the guardianship order was revoked.
The nature of review proceedings under s 17A of the GA Act
Section 17A of the GA Act permits any party aggrieved by a determination made by the Tribunal consisting of one member to request the President to arrange for a Full Tribunal to review the determination.
The term 'determination' is defined in s 3 of the GA Act to mean, amongst other things, the making of or refusing to make an order on a review under s 84 of the GA Act. Relevantly, the order made on the last occasion included an order revoking the guardianship order. That order was an order on a review under s 84 of the GA Act and, consequently, was a determination for the purposes of s 17A of the GA Act.
The nature of the review that we are undertaking under s 17A of the GA Act requires us to consider the matter de novo, or afresh.
The purpose of the review is to produce the correct and preferable decision at the time of the decision on the review. When considering a review under s 17A of the GA Act the Tribunal must bear in mind the important principles set out in s 4 of the GA Act. For present purposes only two of those principles warrant mention. First, the Tribunal's primary concern at all times must be the best interests of PR. Secondly, in relation to the nature of the orders that might be made, we must consider whether there are other less restrictive means to deal with PR's needs.
The only issue for us today is whether a guardian should be appointed in respect of PR. The administration order is to remain in place.
Evidence before the Tribunal
We have taken into account the materials that were before the Tribunal on the last occasion.
Those materials included a report of Dr T, dated 22 May 2020. The materials also included discharge notes in respect of a number of PR's admissions to the Frankland Centre. Finally, the materials now before the Tribunal include reports provided by the Applicant, including her report of 24 September 2020 (which was accompanied by her letter of the same date) and an earlier report provided by the Applicant (dated 3 June 2020).
We have taken all that material into account. The Tribunal has also received and taken into account a report of the Public Trustee dated 2 November 2020, and a report of the Public Advocate, dated 10 August 2020. We have also been very helpfully assisted today by the submissions made on behalf of the Public Advocate and by the Applicant.
Criteria for the appointment of a guardian
The criteria for the appointment of a guardian are set out in s 43 of the GA Act. If the Tribunal is satisfied that the proposed represented person is over the age of 18 years; is either incapable of looking after his own health or safety, unable to make reasonable judgments in respect of matters relating to his person or in need of oversight, care or control in the interests of his own health or safety, or for the protection of others; and is in need of a guardian, then the Tribunal can consider subsidiary questions such as who should be appointed the guardian and with what functions.
In this case, we are left in no doubt that the criteria in s 43(1)(a) and (b) of the GA Act are met. PR is a person who is over 18 years of age, and the medical evidence of Dr T, and the discharge documentation from the Frankland Centre, leave us in no doubt that PR is a person who is incapable of looking after his own health and safety, unable to make reasonable judgments in respect of matters relating to his person, and a person who is in need of oversight, care or control in the interests of his own health and safety. It suffices to refer to Dr T's report. There is no need to set out the basis for, or the contents of, that report. Dr T indicated that, in respect of a number of key personal decision-making areas, PR was incapable of looking after his own health or safety and making reasonable decisions.
The next, and more difficult, question in this case, is whether there is a need for the appointment of a guardian.
Ultimately, the parties who appeared before us (namely, the Applicant and the Public Advocate) appeared to accept that there is a need for the appointment of a guardian. Nevertheless, it is appropriate for us to explain why we are of the view that there is a need for the appointment of a guardian. The word 'need' has a number of meanings including 'a case or instance in which some necessity or want exists', or a 'requirement or a necessity arising in the circumstances of the case'.[1] We are satisfied in this case that there is a need for the appointment of a guardian.
[1] Macquarie Online Dictionary (2020).
The focus of the exchange between the Tribunal and the parties who appeared before us today, in particular the representatives of the Public Advocate, left us in no doubt that in relation to his interaction with the criminal justice system, and possibly in the context of requiring medical treatment in the future, PR is a person who is in need of a guardian.
The history of PR's involvement in the criminal justice system is lengthy. Regrettably, it appears very likely that PR will come into contact with the criminal justice system again and possibly in the very near future. Should that occur there is scope for the Public Advocate to exercise an important role in advocating for PR to receive services or obtain the benefit of available legal assistance. That was the reason, no doubt, why the Member, in the order of 3 July 2019, included the function for the Public Advocate, as PR's guardian, to seek legal advice and representation for him.
The submissions we have heard today also leave us with no doubt that there is the possibility that, having regard to his age, to his homelessness and general state of health, PR may well require medical treatment in the future in circumstances where there will be a need to obtain the consent of a guardian for that treatment.
Having regard to his history, it is rather less likely that in the future PR would engage with services which might be available to him to assist his quality of life and independent living or to pursue accommodation for himself. However, the possibility of an engagement with service providers at some stage over the life of a guardianship order cannot be excluded. In our view, that circumstance is not a reason for concluding there is no need to appoint a guardian for PR.
One further issue that requires our consideration is whether, by virtue of PR's interaction with the mental health system and his history of involuntary admissions as a mental health patient, there really can be said to be a need for the appointment of a guardian. In the future there are likely to be occasions on which PR will not have need for the assistance of a guardian to consent to treatment because he will be involuntarily admitted to hospital and may be required to have medical treatment while under an involuntary patient order. However, that does not exclude the possibility that within the maximum five year term for which a guardianship order might be made, PR will have a need for the assistance of a guardian.
The submission made on behalf of the Public Advocate illustrated the difficulties for the Public Advocate acting as PR's guardian, because generally speaking, PR is reluctant or unwilling to engage with the Public Advocate in order to obtain assistance that the Public Advocate might be able to give him. While we appreciate that difficulty and the guardian's frustration, we are of the view that it is in PR's best interests that a guardian be appointed so that the assistance of the guardian may be given at any stage when an occasion arises for such engagement.
A final question is whether the Tribunal should decline to appoint a guardian in the exercise of its discretion. The Tribunal clearly has a discretion under s 43(1) of the GA Act as to whether to appoint a guardian. In this case the key consideration for us in the exercise of our discretion must be, in accordance with s 4 of the GA Act, the best interests of PR. We are of the view that it is clearly in PR's best interests to appoint a guardian.
The two examples to which we have already referred - engagement with the criminal justice system and possible consent to future medical treatment - provide illustrations of where it would be in PR's best interests to have a guardian available to make decisions, should the need arise, or to engage in advocacy on his behalf if the opportunity for that advocacy arises. There may not be many such opportunities for a guardian to assist PR, but that does not mean that it is not in his best interests to have a guardian appointed, who may assist if the opportunity arises to do so.
The absence of a guardianship order would mean that if the need or opportunity for decision-making or advocacy by a guardian were to arise in the future, that could not be done without the appointment of a guardian by the Tribunal. Even in the most urgent of cases an application for the appointment of a guardian necessarily involves some delay.
Having regard to all of these considerations, we are of the view that this is a case in which we should exercise our discretion to appoint a guardian for PR.
In this case there is no appointee available other than the Public Advocate. We are satisfied that the Public Advocate should be appointed as a limited guardian with the same functions as were conferred on the Public Advocate by the Member on 3 July 2019.
We turn finally to the question of the period of the order. The maximum period allowed under the GAA Act is five years. Given all of the circumstances, we are satisfied that it is appropriate to review the order in about five years' time and conveniently by the same date by when the administration order must be reviewed, that is by 17 August 2025.
Accordingly, the orders that we would make today are as follows:
1.The Tribunal declares that the represented person, PR:
(a)is -
(i)incapable of looking after his own health and safety;
(ii)unable to make reasonable judgments in respect of matters relating to his person;
(iii)in need of oversight, care or control in the interests of his own health and safety; and
(b)is in need of a guardian.
2.Order 3 of the Orders made by the Tribunal on 17 August 2020 is set aside and the following Orders are made.
3.The Public Advocate of David Malcolm Justice Centre, level 23, 28 Barrack Street, Perth, Western Australia is appointed limited guardian of the represented person with the following functions:
(a)To decide where the represented person is to live, whether permanently or temporarily;
(b)To decide with whom the represented person is to live;
(c)To make treatment decisions for the represented person, subject to Div 3 of Pt 5 of the Guardianship and Administration Act 1990 (WA);
(d)To determine the services to which the represented person should have access; and
(e)To seek legal advice and representation on behalf of the represented person, and to advocate generally for him in relation to any police investigation, criminal charges or related proceedings.
4.The Tribunal approves delegation by the Public Advocate of her functions as guardian of the represented person to an officer or employee employed in the Office of the Public Advocate.
5.This order is to be reviewed by 17 August 2025.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
GD
Associate to the Honourable Justice Pritchard
11 MARCH 2021