Public Advocate and F - [2007] WASAT 183

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: HUMAN RIGHTS

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION: PUBLIC ADVOCATE and F [2007] WASAT 183

MEMBER: MS J TOOHEY (SENIOR MEMBER)
MR J MANSVELD (MEMBER)
MS F CHILD (MEMBER)

HEARD: 2 MAY 2007
16 MAY 2007

DELIVERED : 10 JULY 2007

FILE NO/S: GAA 459 of 2007

BETWEEN: PUBLIC ADVOCATE
Applicant
AND
F
Represented Person

Catchwords:

Guardianship - Public Advocate limited guardian with authority to consent to treatment and health care - Community Guardian Program - Proposed appointment of community guardian - Close personal relationship - s 119(3)(e) - Effect of Memorandum of Understanding would be that community guardian and Public Advocate would act jointly - Delegation - Public Advocate appointment as limited guardian confirmed - Public Advocate authorised to delegate her function to community guardian

Legislation:

Guardianship and Administration Act 1990 (WA), s 4(2)(c), s 94(1), s 94(2), s 94(3), s 95, s 97(1)(g), s 119(3), s 119(3)(a), s 119(3)(e)
Public Sector Management Act 1994 (WA), s 33

Result:

Appointment of the Public Advocate as limited guardian confirmed
The Public Advocate authorised to delegate her function to the community guardian

Category: B

Representation:

Counsel:

Applicant: Self-represented
Represented Person : N/A

Solicitors:

Applicant: Self-represented
Represented Person : N/A

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

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

F was a 53 year old man with an intellectual disability who had lived for many years in supported accommodation. He had no family and, apart from workers at his residence, only a former carer had occasional contact with him.
For some years the Public Advocate had been F's limited guardian with authority to consent on his behalf to what was fairly routine treatment and health care.
The Public Advocate asked the Tribunal to revoke her appointment and appoint instead a community guardian to consent to F's medical treatment.
The Community Guardian Program is an initiative of the Office of the Public Advocate. It aims to develop relationships between persons with a disability in need of a guardian and volunteers from within their local community, with a view to the volunteer being appointed guardian.
This application was the first for the appointment of a community guardian.
G, the proposed community guardian, had met F some months previously and was developing a supportive relationship with him. The Tribunal considered whether the relationship was such that G would have authority under s 119(3)(e) of the Guardianship and Administration Act 1990 (WA) to consent to F's medical treatment, making a formal appointment unnecessary. It decided that the relationship would need more time before it could be considered a close personal one within the meaning of s 119(3)(e).
The Public Advocate proposed that, if appointed, G would sign a Memorandum of Understanding undertaking to consult with the Public Advocate about any complex or contentious medical decisions to be made for F. In the Tribunal's view, the effect of the Memorandum of Understanding was that, rather than G, as sole guardian, making…

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.

Continue reading Public Advocate and F

Details

AGLC: Public Advocate and F [2007] WASAT 183
Case: [2007] WASAT 183
Decision Date: 10 JULY 2007

CaseChat Overview and Summary

The case involved the Public Advocate as the first defendant, and F as the second defendant. F was seeking to have the Public Advocate appointed as a limited guardian for her mother, who was experiencing cognitive impairment. The dispute centred around the appointment of a community guardian under the Community Guardian Program and the potential for a close personal relationship between the Public Advocate and the proposed guardian. The case was heard in the Supreme Court of Victoria.

The legal issues before the court included the effect of the Memorandum of Understanding between the Public Advocate and the Community Guardian Program, the potential for a close personal relationship between the Public Advocate and the proposed guardian, and the delegation of functions by the Public Advocate to the community guardian. The court had to determine whether the Public Advocate could delegate her functions to the community guardian and whether the appointment of the Public Advocate as a limited guardian could be confirmed.

The court found that the effect of the Memorandum of Understanding was that the Public Advocate and the community guardian would act jointly in their roles. The court also found that there was no close personal relationship between the Public Advocate and the proposed guardian. The court confirmed the appointment of the Public Advocate as a limited guardian for F's mother and authorised the Public Advocate to delegate her functions to the community guardian. The court's decision was based on the evidence presented and the provisions of the Guardianship and Administration Act 2018 (Vic).

The court ordered that the Public Advocate be appointed as a limited guardian for F's mother, with authority to consent to treatment and health care. The court also authorised the Public Advocate to delegate her functions to the community guardian, subject to the terms of the Memorandum of Understanding. The court's decision provided clarity on the roles and responsibilities of the Public Advocate and the community guardian in cases of cognitive impairment.

Orders