Public Advocate and TLG-B
[2015] WASAT 108
•10 SEPTEMBER 2015
PUBLIC ADVOCATE and TLG-B [2015] WASAT 108
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2015] WASAT 108 | |
| 24/09/2015 | |||
| GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) | |||
| Case No: | GAA:3916/2015 | 10 SEPTEMBER 2015 | |
| Coram: | JUDGE D R PARRY (DEPUTY PRESIDENT) | 10/09/15 | |
| 18 | Judgment Part: | 1 of 1 | |
| Result: | Warrant to enter premises issued | ||
| A | |||
| PDF Version |
| Parties: | PUBLIC ADVOCATE TLG-B |
Catchwords: | Guardianship and administration Application for a warrant to enter premises under s 49 of the Guardianship and Administration Act 1990 (WA) Warrant to enter represented person's premises sought by represented person's plenary guardian in order for contractors appointed by represented person's plenary administrator to carry out urgent and essential works to premises Represented person has long history of schizoaffective disorder Represented person's house declared unfit for human habitation Represented person opposed carrying out of works Serious, significant and immediate risk to represented person's life, health and safety Conditions precedent to availability of discretion to issue warrant Relevant principles and considerations to guide exercise of discretion to issue warrant Conditions on warrant |
Legislation: | Guardianship and Administration Act 1990 (WA), s 4(2), s 49, s 84 Health Act 1911 (WA), s 135 |
Case References: | CT and ALT [2014] WASAT 42 |
Summary | The Public Advocate, who is the plenary guardian of the represented person, applied to the Tribunal for the issue of a warrant under s 49 of the Guardianship and Administration Act 1990 (WA) to enter the represented person's premises in order for contractors appointed by the Public Trustee, who is the represented person's plenary administrator, to carry out urgent and essential works to the premises. In particular, the proposed works include the installation of a second residual current device (RCD) and hardwired smoke alarms.,The represented person has a long history of schizoaffective disorder. The local government has declared the represented person's house to be unfit for human habitation and is prosecuting the represented person for continuing to occupy the premises. Western Power has disabled the light circuit in the house for safety reasons and the represented person runs power cords and power boards through the property to operate lamps and a radio. Because the represented person constantly runs the bath tap and the continued blocking of the drain, there is flooding and the carpet in the bedroom adjacent to the bathroom is saturated with water.,This situation has given rise to the growth of mould and an immediate concern of electrocution. In addition, the fireplace in the house lacks a part, which may cause smoke and potentially fire.,The represented person has refused to allow access to the house to enable the installation of a second RCD and hardwired smoke alarms, stating words to the effect that it is 'my home' and 'my private business'.,The Tribunal held that s 49 of the Guardianship and Administration Act 1990 (WA) prescribes two conditions precedent each of which must be established for there to be a discretion to issue a warrant authorising the guardian to enter premises, namely:,(1) The Tribunal must be satisfied that the occupant or person in charge of the premises has refused to allow the guardian to enter the premises either (a) where the represented person is in the premises, for the purpose of performing any function in relation to the represented person, or (b) for the purpose of ascertaining whether the represented person is in those premises; and,(2) The Tribunal must be satisfied that it is necessary for the guardian to enter those premises either (a) where the represented person is in the premises, for the purpose of performing any function in relation to the represented person, or (b) for the purpose of ascertaining whether the represented person is in those premises.,The Tribunal also held that although, if a discretion to issue a warrant to enter premises arises, the discretion is broad and unconfined, the following four nonexhaustive considerations are relevant in guiding the exercise of the discretion:,(1) Whether the achievement of the purpose for which the warrant is sought is in the best interests of the represented person;,(2) Whether there is any less coercive and intrusive alternative to a warrant to achieve the purpose for which the warrant is sought;,(3) Whether all reasonable efforts have been made to achieve the purpose for which the warrant is sought without the need for a warrant; and,(4) Whether the likely positive consequence of issuing the warrant outweigh any likely negative consequences.,The Tribunal determined that both conditions precedent to the availability of a discretion were established, because it was satisfied that the represented person, being the occupier of her house, refused to allow the guardian to enter the premises where she is for the purpose of performing a function in relation to the represented person, namely facilitating the installation of the second RCD and the smoke alarms, and that it is necessary for the guardian to enter the premises for the performance of that function.,The Tribunal also determined that, having regard to the considerations guiding the exercise of the discretion that it referred to, it is appropriate to issue the warrant sought by the Public Advocate. The Tribunal found that the installation of the second RCD and the smoke alarms is essential to seek to mitigate the serious, significant and immediate risk to the represented person's life, health and safety from electrocution and fire. However, the Tribunal imposed conditions on the warrant in relation to its period of operation, prior notice to the represented person of its proposed execution, the scope of works which may be undertaken, supervision by the Public Advocate or her delegated guardian and any repairs necessitated by forcible entry or the carrying out of the works. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : PUBLIC ADVOCATE and TLG-B [2015] WASAT 108 MEMBER : JUDGE D R PARRY (DEPUTY PRESIDENT) HEARD : 10 SEPTEMBER 2015 DELIVERED : 10 SEPTEMBER 2015 PUBLISHED : 24 SEPTEMBER 2015 FILE NO/S : GAA 3916 of 2015 BETWEEN : PUBLIC ADVOCATE
- Applicant
AND
TLG-B
Represented Person
Catchwords:
Guardianship and administration Application for a warrant to enter premises under s 49 of the Guardianship and Administration Act 1990 (WA) Warrant to enter represented person's premises sought by represented person's plenary guardian in order for contractors appointed by represented person's plenary administrator to carry out urgent and essential works to premises Represented person has long history of schizoaffective disorder Represented person's house declared unfit for human habitation Represented person opposed carrying out of works Serious, significant and immediate risk to represented person's life, health and safety Conditions precedent to availability of discretion to issue warrant Relevant principles and considerations to guide exercise of discretion to issue warrant Conditions on warrant
Legislation:
Guardianship and Administration Act 1990 (WA), s 4(2), s 49, s 84
Health Act 1911 (WA), s 135
Result:
Warrant to enter premises issued
Summary of Tribunal's decision:
The Public Advocate, who is the plenary guardian of the represented person, applied to the Tribunal for the issue of a warrant under s 49 of the Guardianship and Administration Act 1990 (WA) to enter the represented person's premises in order for contractors appointed by the Public Trustee, who is the represented person's plenary administrator, to carry out urgent and essential works to the premises. In particular, the proposed works include the installation of a second residual current device (RCD) and hardwired smoke alarms.
The represented person has a long history of schizoaffective disorder. The local government has declared the represented person's house to be unfit for human habitation and is prosecuting the represented person for continuing to occupy the premises. Western Power has disabled the light circuit in the house for safety reasons and the represented person runs power cords and power boards through the property to operate lamps and a radio. Because the represented person constantly runs the bath tap and the continued blocking of the drain, there is flooding and the carpet in the bedroom adjacent to the bathroom is saturated with water.
This situation has given rise to the growth of mould and an immediate concern of electrocution. In addition, the fireplace in the house lacks a part, which may cause smoke and potentially fire.
The represented person has refused to allow access to the house to enable the installation of a second RCD and hardwired smoke alarms, stating words to the effect that it is 'my home' and 'my private business'.
The Tribunal held that s 49 of the Guardianship and Administration Act 1990 (WA) prescribes two conditions precedent each of which must be established for there to be a discretion to issue a warrant authorising the guardian to enter premises, namely:
- (1) The Tribunal must be satisfied that the occupant or person in charge of the premises has refused to allow the guardian to enter the premises either (a) where the represented person is in the premises, for the purpose of performing any function in relation to the represented person, or (b) for the purpose of ascertaining whether the represented person is in those premises; and
(2) The Tribunal must be satisfied that it is necessary for the guardian to enter those premises either (a) where the represented person is in the premises, for the purpose of performing any function in relation to the represented person, or (b) for the purpose of ascertaining whether the represented person is in those premises.
- (1) Whether the achievement of the purpose for which the warrant is sought is in the best interests of the represented person;
(2) Whether there is any less coercive and intrusive alternative to a warrant to achieve the purpose for which the warrant is sought;
(3) Whether all reasonable efforts have been made to achieve the purpose for which the warrant is sought without the need for a warrant; and
(4) Whether the likely positive consequence of issuing the warrant outweigh any likely negative consequences.
The Tribunal also determined that, having regard to the considerations guiding the exercise of the discretion that it referred to, it is appropriate to issue the warrant sought by the Public Advocate. The Tribunal found that the installation of the second RCD and the smoke alarms is essential to seek to mitigate the serious, significant and immediate risk to the represented person's life, health and safety from electrocution and fire. However, the Tribunal imposed conditions on the warrant in relation to its period of operation, prior notice to the represented person of its proposed execution, the scope of works which may be undertaken, supervision by the Public Advocate or her delegated guardian and any repairs necessitated by forcible entry or the carrying out of the works.
Category: A
Representation:
Counsel:
Applicant : DM (delegated guardian)
Represented Person : GB
Solicitors:
Applicant : N/A
Represented Person : Legal Aid Commission of Western Australia
Case(s) referred to in decision(s):
CT and ALT [2014] WASAT 42
1 The following are the Tribunal's reasons for decision in relation to an application made by the Public Advocate on an urgent basis for the issue of a warrant under s 49 of the Guardianship and Administration Act 1990 (WA) (GA Act) in relation to the residential property of Ms TLGB who is the represented person the subject of a guardianship order made by the Tribunal on 28 July 2015.
Introduction
2 The Public Advocate, who is the plenary guardian of Ms TLGB (represented person), has made an urgent application to the Tribunal under s 49 of the GA Act to enter the represented person's premises at [address], for the purpose of contractors carrying out urgent and essential works, in particular, the installation of a second residual current device (RCD) in the meter box and hardwired smoke alarms at the premises.
3 The application was filed on 7 September 2015 and given the urgency referred to in the application and the circumstances that I will address in these reasons, the application was listed for urgent hearing before me today, 10 September 2015.
4 The Tribunal gave personal notice of this hearing to the represented person on 9 September 2015. Furthermore, the Tribunal gave notice of the application and of the hearing to the Legal Aid Commission, which has represented the represented person in previous guardianship and administration proceedings in the Tribunal, as well as in criminal proceedings brought against the represented person. Mr GB of Legal Aid attended the hearing today at short notice, having obtained some limited instructions from the represented person on 8 September 2015 over the telephone and in the context of obtaining instructions in relation to criminal proceedings pending in the Midland Magistrates Court.
5 Although the represented person has not attended the hearing today, in the circumstances and having regard to the urgency and the serious, significant and immediate risk to her life, health and safety, I consider that for the reasons I will give a warrant as sought by the guardian should be issued on conditions that I will articulate.
The represented person's mental illness and previous guardianship and administration proceedings
6 When considering a statutory review of guardianship and administration orders made in respect of the represented person on 28 July 2015, the Full Tribunal (in which I presided) found as follows:
[The represented person] is a 51 year old woman with a long history of mental illness and, in particular, schizoaffective disorder. She lives alone in her home, which previously belonged to her mother, who was her primary carer until her mother passed away some 10 years ago. [The represented person] also has a history of disinhibited and sexualised and other inappropriate behaviours. She has been receiving mental health treatment from Swan Mental Health Service since she was 18 years old, and has at various times in the past been noncompliant with medication, resulting in hospitalisation from time to time. (T: 28.07.15 2.12.3)
7 In 2009, the Tribunal appointed the Public Trustee as plenary administrator of the estate of the represented person. On 6 August 2010, the Tribunal confirmed that order and directed it to be reviewed within five years.
8 In 2009, the Tribunal also made a limited guardianship order appointing the Public Advocate as limited guardian for the represented person to make decisions for her in relation to treatment, accommodation, access to services, as well as consent to the use of chemical or physical restraints. On 18 July 2014, the Tribunal substituted a fresh order expanding the scope of the authorities of the Public Advocate as limited guardian to also include seeking legal advice and representation, and generally to advocate for the represented person in relation to any police investigation, criminal charges and related proceedings. The guardianship order was also to be reviewed by the date of the review of the administration order.
9 The Tribunal initiated the statutory reviews of the administration and guardianship orders under s 84 of the GA Act and those reviews were heard on 28 July 2015. That review hearing was also to be conducted concurrently with the hearing of an application by the Public Advocate for a warrant under s 49 of the GA Act. However the application for the warrant was withdrawn at the commencement of the hearing following discussions between the delegated guardian, the Public Trustee and the Legal Aid legal representative for the represented person.
10 In determining the statutory reviews of the guardianship and administration orders on 28 July 2015, the Full Tribunal determined as follows:
We are satisfied on the medical and other evidence presented to the [T]ribunal that the presumption of capacity, both in relation to guardianship and administration, is displaced in the circumstances of this case in particular, the evidence to which we will refer in a moment establishes, for the purposes of section 43, subsection (1) of the Guardianship Act, that [the represented person] is incapable of looking after her own health and safety, is unable to make reasonable judgments in respect of matters relating to her person, and is in need of oversight, care or control in the interests of her own health and safety, or for the protection of others.
We are also satisfied, on the evidence to which we will refer, for the purposes of section 64 of the Guardianship Act, in subsection (1), that [the represented person] is unable, by reason of a mental disability namely, schizoaffective disorder, which is a psychiatric illness to make reasonable judgments in respect of matters relating to any part of her estate, and we will make such declaration, together with a declaration of need, at the conclusion of these reasons. The medical evidence in this case is in the form of two doctors' … reports, which refer to [the represented person's] longstanding schizoaffective disorder. The reports are by psychiatrists, [Dr HD], dated 11 June 2015, and [Dr GM], dated 3 July 2014, both of which diagnose the same mental illness.
According to the most recent report, which is [Dr HD], the mental illness is progressive, and he expresses a poor prognosis, or a generally poor prognosis, due to noncompliance with medication. Both psychiatrists express the opinion that [the represented person] is incapable of making reasonable decisions in relation to personal healthcare, living situation, and financial affairs. They also refer to her lack of insight into her mental illness, and into its consequences.
The medical evidence is generally supported by two social worker reports that the [T]ribunal has from [Mr DW] of the Swan Adult Mental Health Clinic dated 12 June 2015 and by [Mr GS] of NEAMI dated 15 June 2015. Those social worker guides also referred to [the represented person's] significant vulnerability. We are, therefore, satisfied that guardianship and administration orders can be made. Furthermore, we are satisfied that there is a need for the making of guardianship and administration orders.
In relation to need, the evidence establishes that [the represented person] has profound disabilities and decisionmaking disabilities. There are a range of decisions that need to be made for her, having regard to the specific authorities that are the subject of the current guardianship order, as well as financial decision-making and complications from those and permutations of those as a result of current legal proceedings against her by the Shire of Mundaring together with the issue associated with the current state of her house and potential health impacts of that.
In terms of need, we note the submission made on behalf of the [P]ublic [A]dvocate that, in practical terms, the [P]ublic [A]dvocate's ability to exercise certain of the authorities conferred on her is limited by [the represented person's] lack of cooperation, including even reviewing the current state of her home.
We recognise that the appointment of any guardian and, certainly in this case, the appointment of the [P]ublic [A]dvocate is extremely challenging, and we certainly recognise that the [P]ublic [A]dvocate has acted in the best interests of [the represented person] including in seeking the warrant to which we've referred. Nevertheless, there is clearly a need, indeed, a profound need, for the appointment of a guardian, and, there being no other person suitable or willing to act, there is no choice but to appoint the [P]ublic [A]dvocate as the guardian of last resort. (T: 28.07.15 4.96.5)
11 In relation to financial decisions for the represented person, the Full Tribunal said the following:
In terms of the administration, there is clearly a need for the appointment of an administrator to make financial decisions for [the represented person] given her lack of capacity and the need to make decisions both in terms of her general income and expenditure and, potentially, repair work of her house. There also needs to be an administrator to consider and, if appropriate, seek leave of the [T]ribunal to review the Health Act notice out of time, and, therefore, the [P]ublic [Trustee] should be appointed. (T: 28.07.15 7.2)
12 In relation to the scope of orders, the Full Tribunal determined as follows:
In terms of the scope of the orders, the [T]ribunal explored with the [P]ublic [A]dvocate's representative as to whether the guardianship order should be plenary. Notwithstanding the principle of the Guardianship Act referred to earlier [stated in s 4(5) of the GA Act], although the delegated guardian had initially expressed the view that a plenary order may be appropriate, the [P]ublic [A]dvocate was, ultimately, of the view that a limited order should be made in terms of the current authorities, although perhaps with some further clarity in relation to legal proceedings, because of the obligation to minimise interference with a person's decision-making ability under the Act.
We certainly hear and respect that submission. However, we are satisfied that in the extreme circumstances of this case, a plenary order is necessary to meet the needs of [the represented person], and that is because of the fluidity and complexity of the current situation and the presently unknown range of decisionmaking that may need to be made in her best interests and promptly.
However, bearing in mind the submission made by the [P]ublic [A]dvocate and the principle of the Act to which we've referred, we consider it appropriate to review that order within six months rather than a longer period of time. In relation to the administration, a plenary order is appropriate given the range of decision-making that is necessary. However, in that case, we consider that the order should be reviewable in five years. That is because [the represented person's] disability is progressive and is unlikely to improve even with medication and compliant medication in the next five years. (T: 28.07.15 7.3-7.8)
The represented person's domestic circumstances
13 In July 2014, the Shire of Mundaring served a notice under s 135 of the Health Act 1911 (WA) on the represented person declaring that her house is unfit for human habitation due to the reason of want of repair. The notice advised the represented person that any person who, after 31 August 2014, inhabits or occupies the house commits an offence. Unfortunately, subsequently, the Shire of Mundaring has commenced a criminal prosecution in consequence of the continued occupation of the house by the represented person. That proceeding is next for mention in the Midland Magistrates Court on 14 September 2015.
14 In its reasons for the statutory review of the guardianship and administration orders on 28 July 2015, the Full Tribunal concluded with the following observations by way of 'a final comment':
By way of a final comment, as we have said, we are certainly satisfied that the [P]ublic [A]dvocate has acted in the best interests of [the represented person] in very difficult circumstances. The [P]ublic [A]dvocate has considered, or the delegated guardian has considered, but further thought has been given during the hearing today as to whether some more limited repairs should be done to the property in order to minimise the risk to [the represented person's] health and safety.
The greatest risk that has been identified by [Ms DM] [the delegated guardian], and understandably so, in her report to the [T]ribunal is of electrocution as a result of the combination of Western Power having disabled the light circuit in the house for safety reasons and [the represented person] running power boards through the property to operate lamps as a consequence, in the context of her constantly running the bath tap, which has caused flooding in the house.
While the flooding has also given rise to the growth, it appears, of mould, which has longerterm, serious consequences, potentially, for [the represented person's] health, the immediate concern is one of electrocution. There is also another concern in relation to the fireplace because of a lack of a part, which may cause smoke and, potentially, fire in the house. No doubt, having regard to the discussion at the hearing today, the guardian, now having plenary powers as well, will give consideration to whether there might be a more limited scope of works to minimise the immediate risk to [the represented person's] health and safety.
The [P]ublic [T]rustee indicated to the [T]ribunal that although the estate does not have anywhere near sufficient resources to arrange for the full repair of the house as foreshadowed in two building reports and certainly not to address the mould issue or repair of mould, there is approximately $1000 available and that the [P]ublic [T]rustee may, potentially, possibly, go into arrears if there was a lifethreatening situation and if there was a clear scope of works that could be undertaken to mitigate a risk to human life.
It seems to the [T]ribunal that although it is a matter entirely for the guardian, this is a matter that should be explored as a matter or urgency. The [S]hire may also wish to be involved in that discussion. Although it may not address the [S]hire's full concern in relation to the house, it may do so sufficiently, having regard to the realistic circumstances of the case and having regard to [the represented person's] lack of financial resources to be able to pay any fine if the [S]hire were to continue with the prosecution.
Finally, and related to that, the [P]ublic [A]dvocate, no doubt, will consider whether to, if it were necessary to gain access to [the represented person's] property in order to carry out immediate works to mitigate a risk to her immediate life and health and safety to consider whether to bring a fresh application under section 49 of the Guardianship Act for a warrant. Certainly, if the [T]ribunal, as presently constituted, were persuaded that there is some immediate action that could be taken to mitigate risk, that would seem to satisfy the requirements of a warrant as it would be for the performance of a function relating to the represented person. (T: 28.07.15 7.99.2)
15 Since the hearing on 28 July 2015, the Public Advocate and her representatives have liaised with the National Disability Insurance Agency (NDIA) for a planner to be engaged to work with the represented person and agencies involving her case. Liaison was in order to obtain funding for services under the NDIA Scheme to address some of the issues in relation to the represented person's house. Unfortunately, at a meeting with NDIA representatives on 1 September 2015, the Public Advocate was advised that the NDIA will not fund capital works.
16 The delegated guardian, Ms DM, gave evidence that despite the represented person being in arrears in the payment of her electricity account with Western Power, electricity continues to be available at her home. Ms DM also gave evidence that the represented person continues to run power cords along saturated floor coverings to power lamps and the radio and that the Public Advocate has been advised that an additional RCD and fire alarms should be installed at the home. The Public Advocate has been advised in particular that an additional RCD should be installed in the meter box to mitigate the potential risk of electrocution in consequence of the running of power cords on saturated floors and that although some smoke alarms are available in the house they are not hardwired and are not sufficient to ensure the represented person's health and safety.
17 Mr GB indicated that he has been advised by a friend of the represented person, Mr PT, that the saturation of the floor remains an issue, at least in relation to the bedroom adjacent to the bathroom, because of continued blocking of the drain, although it does not appear to be a concern in relation to other parts of the house. Mr GB also related Mr PT's statement to him that the radio is on a table and that at least one of the lamps powered by cords is in the lounge room and therefore not in the bedroom.
18 On 5 September 2015, the delegated guardian requested representatives from NEAMI National, the service provider providing services to the represented person in her home, to discuss with the represented person the installation of a second RCD and smoke alarms and to seek her views as to whether or not she would allow a contractor entry to attend to these works. The represented person advised Mr RW, the site manager of NEAMI and Mr SJ, the clinician at NEAMI, that she would not allow entry to a contractor for these works to proceed. The represented person is reported to have told Mr RW words to the effect that it is 'my home' and 'my private business' and that she would 'not allow entry'. This is consistent with a statement made by the represented person to Mr GB earlier this week that she did not see the need for the works and would not allow them to take place. Furthermore, about four months ago, the Public Trustee as administrator attempted to obtain the consent of the represented person to undertake the same works, but without success.
19 The delegated guardian has been informed by the contractor that the works are likely to take between two and four hours to carry out. The estimated cost is approximately $1,500. The Public Trustee as administrator has agreed to fund these works although the represented person does not presently have funds to pay for them. The Public Trustee will hold this as a debt against the represented person's account.
Legal framework and principles
20 Section 49 of the GA Act states as follows:
(1) If the occupier or person in charge of premises refuses to allow a guardian to enter those premises
(a) where the represented person is in the premises, for the purpose of performing any function in relation to the represented person; or
(b) for the purpose of ascertaining whether the represented person is in those premises,
the guardian may apply to the State Administrative Tribunal for a warrant to enter those premises.
(2) If upon an application under subsection (1) the State Administrative Tribunal is satisfied that it is necessary for the guardian to enter those premises as mentioned in paragraph (a) or (b) of that subsection, it may issue a warrant authorising the guardian to enter the premises by force if necessary during a particular period or at any time, as the warrant may specify.
(3) A guardian executing a warrant under subsection (2) may be assisted by such persons as he thinks necessary, including a police officer or police officers.
(4) A person shall not, without reasonable cause, obstruct or hinder a person acting under the authority of a warrant issued under subsection (2).
Penalty: $1 000.
22 Section 49 of the GA Act prescribes two conditions precedent each of which must be established for there to be a discretion to issue a warrant authorising the guardian to enter premises. The first condition precedent is prescribed by s 49(1) of the GA Act. In order for the guardian to be authorised to apply to the Tribunal for a warrant to enter premises (and in order for the Tribunal to be able to exercise a discretion to issue a warrant), the Tribunal must be satisfied that the occupant or person in charge of the premises has refused to allow the guardian to enter the premises either, 'where the represented person is in the premises, for the purpose of performing any function in relation to the represented person', or 'for the purpose of ascertaining whether the represented person is in those premises'.
23 The second condition precedent to the availability of a discretion to issue a warrant is prescribed in s 49(2) of the GA Act. That condition precedent is that the Tribunal must be satisfied 'that it is necessary for the guardian to enter those premises' either, where the represented person is in the premises, for the purpose of performing any function in relation to the represented person, or for the purpose of ascertaining whether the represented person is in those premises.
24 Unless both of these conditions precedent are established, the Tribunal does not have a discretion as to whether to issue a warrant authorising the guardian to enter the premises.
25 If a discretion arises, it is broad and unconfined. The GA Act does not prescribe any particular consideration or considerations to guide the exercise of the discretion. However, a fundamental principle that s 4(1) of the GA Act states the Tribunal 'shall observe' in dealing with proceedings commenced under the GA Act, including a proceeding seeking the issue of a warrant to enter premises under s 49, is the following principle stated in s 4(2) of the GA Act:
The primary concern of the State Administrative Tribunal shall be the best interests of any represented person, or of a person in respect of whom an application is made.
26 Furthermore, in my view, it is relevant that a warrant to enter premises is an extremely coercive and intrusive instrument, particularly in a civil law context. It enables a guardian, assisted by such persons as he or she thinks necessary, including police officers, to enter premises by force if necessary. Furthermore and significantly, s 49(4) of the GA Act creates a criminal offence for a person, without reasonable cause, to obstruct or hinder a person acting under the authority of a warrant issued under s 49 of the GA Act. Plainly, a warrant should not be issued lightly. Indeed, it should be a measure of last resort.
27 The considerations that guide the exercise of the discretion to issue a warrant under s 49 of the GA Act, if a discretion arises, cannot be exhaustively stated and it would be inappropriate to attempt to do so. However, having regard to the fundamental principle stated in s 4(2) of the GA Act that 'the primary concern of the … Tribunal shall be the best interests of [the] represented person' and the nature and potential consequences of a warrant to enter premises, in my view, the following four nonexhaustive considerations are relevant in guiding the exercise of the discretion as to whether to issue a warrant to enter premises under s 49 of the GA Act.
28 First, whether the achievement of the purpose for which the warrant is sought is in the best interests of the represented person.
29 Secondly, whether there is any less coercive and intrusive alternative to a warrant to achieve the purpose for which the warrant is sought.
30 Thirdly, whether all reasonable efforts have been made to achieve the purpose of which the warrant is sought without the need for a warrant.
31 Fourthly, whether the likely positive consequences of issuing the warrant outweigh any likely negative consequences.
32 I stress that these considerations are not exhaustive. Other considerations may well be relevant in a particular case. However, in my view, these four matters are certainly relevant in guiding the exercise of the discretion as to whether a warrant should be issued in the circumstances of this case.
Should a warrant be issued?
33 I am satisfied that both of the conditions precedent to the availability of a discretion under s 49 of the GA Act are established in this case.
34 Firstly, the represented person, being the occupier of her house, has refused to allow the guardian to enter the premises 'where the represented person is in the premises, for the purpose of performing any function in relation to the represented person', within the meaning of s 49(1)(a) of the GA Act. The guardian has sought through the service provider, NEAMI National, to obtain the represented person's permission to enter the premises with the contractor to carry out the installation of a second RCD and the smoke alarms to seek to mitigate potential harm to the represented person's life, health and safety and the represented person has refused to allow the guardian to enter the premises.
35 Secondly, I am satisfied under s 49(2) of the GA Act 'that it is necessary for the guardian to enter those premises', where the represented person is in the premises, for the purpose of performing any function in relation to the represented person, namely the function of facilitating the installation of the second RCD and the smoke alarms. The installation of the second RCD and the smoke alarms is, in my view, essential to seek to mitigate the serious, significant and immediate risk to the represented person's life, health and safety from electrocution and fire. In my view, the discretion therefore arises.
36 Furthermore, it is appropriate, having regard to the considerations set out earlier, to issue a warrant as sought by the Public Advocate in this case. In particular, the achievement of the purpose for which the warrant is sought is selfevidently in the best interests of the represented person. There is, as I have found, a serious, significant and immediate risk to the represented person's life, health and safety as a result of the current circumstances in her home. Electricity continues to be supplied to the home. The evidence indicates that there are at least some power cords on the floor of her home and that there is a blocked drain in the bathroom resulting in carpets becoming wet. In addition, as noted in the Full Tribunal's 'final comment' in its reasons on 28 July 2015, there is a concern in relation to the fireplace in the house because of a lack of a part which may cause smoke and potentially fire in the house.
37 In relation to the consideration of whether there is any less coercive and intrusive alternative to a warrant in achieving the purpose which the warrant is sought, the evidence indicates that there is unfortunately no less coercive or intrusive alternative available. The Public Trustee and the Public Advocate have each sought to obtain consent from the represented person to undertake what are in their scope quite limited works but what are in their potential benefit to the represented person significant works at her house, but she has consistently refused to allow access. The Public Advocate has also acted entirely reasonably in seeking to facilitate access through the service provider which has an established relationship with the represented person. However, a condition that should be imposed upon the warrant is that at least 24 hours' notice in writing should be given by the guardian to the represented person by leaving notice in her letterbox or on her door of the proposed entry and carrying out of the works. That would enable the represented person to give her consent and avoid the warrant having to be executed or acted upon.
38 Thirdly, I am satisfied that all reasonable efforts have been made to achieve the purpose for which the warrant is sought without the need for a warrant. As I have said, attempts have been made by both the Public Trustee and the Public Advocate to obtain consent of the represented person, but without success. The represented person is by all accounts adamant that matters concerning the safety risk in her house are a personal matter for her and are not a matter for anyone else, and will not allow access.
39 Finally, I am satisfied that the likely positive consequences of issuing the warrant outweigh any likely negative consequences. The likely positive consequences are to mitigate a very serious risk to the represented person's life, health and safety by a relatively confined set of works. The likely negative consequences are that the guardian with police would forcibly enter the represented person's premises potentially causing her distress as well as any physical harm to the premises necessitated by forcible entry. Although any distress to the represented person would be best avoided, ultimately the Tribunal is obligated by the GA Act to have regard to the overriding consideration of the best interests of the represented person. I am satisfied that the best interests of the represented person require the outcome of the issue of a warrant.
40 In terms of the physical consequences and the costs, in my view, a condition should be imposed on the issue of the warrant that any damage is made good within the same entry onto the premises. The Public Advocate's delegated guardian has indicated that there is no practical difficulty with achieving that condition.
41 For these reasons, in my view, a warrant should be issued.
What should be the terms of the warrant?
42 The Public Advocate has indicated that a warrant should be issued for a defined period of time. In my view, that is entirely consistent with the contemplation in s 49(2) of the GA Act that a warrant may be issued authorising the guardian to enter the premises 'during a particular period or at any time'. In my view, the period of 28 days proposed by the Public Advocate is reasonable given that not only the contractor to perform the RCD and fire alarm works, but also police and a contractor to make good any damage upon entry, need to be coordinated.
43 In my view, the warrant should also be conditional upon the Public Advocate or her delegated guardian supervising the entry onto the premises and the carrying out of the works, and as I have said earlier, conditional upon the provision of at least 24 hours' notice in writing to the represented person, both to alert her to the proposed execution of the warrant and also to give her the opportunity to consent to entry onto the premises without the need for the warrant.
44 Finally, as I have said, the warrant should be conditional upon the Public Advocate or the delegated guardian facilitating any repairs necessitated by the forcible entry onto the premises within the same period of entry.
Order
45 For these reasons I make the following order:
1. Pursuant to s 49(2) of the Guardianship and Administration Act 1990 (WA) by this order a warrant is issued authorising the Public Advocate and any officer or employee of the Office of the Public Advocate to whom the Public Advocate has delegated her function as guardian to enter the premises at [address] (premises) by force if necessary and assisted by such persons including police officers as the Public Advocate or her delegated guardian thinks necessary in order for contractors appointed by the Public Trustee to install an additional RCD device and smoke alarms (works) at the premises on the conditions that:
(a) The entry to the premises and the carrying out of the works occurs:
(i) under the supervision of the Public Advocate or her delegated guardian;
(ii) after the Public Advocate or her delegated guardian has given written notice to the represented person of the time and date of the proposed entry in accordance with the warrant issued by this order and the expected duration of the carrying out of the works by placing the written notice and a copy of this order in the letterbox or affixing the written notice and a copy of this order to the front door of the premises at least 24 hours before the entry on the premises in accordance with the warrant issued by this order; and
(iii) on or before 8 October 2015.
(b) Any repairs necessitated by forcible entry to the premises or as a consequence of the carrying out of the works are to be carried out during the entry in accordance with the warrant issued by this order by contractors appointed by the Public Trustee.
I certify that this and the preceding [45] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUDGE D R PARRY, DEPUTY PRESIDENT