QU
[2024] WASAT 92
•5 SEPTEMBER 2024
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: QU [2024] WASAT 92
MEMBER: MS R BUNNEY, MEMBER
HEARD: 3 JULY, 20 AUGUST AND 3 SEPTEMBER 2024
DELIVERED : 3 SEPTEMBER 2024
PUBLISHED : 5 SEPTEMBER 2024
FILE NO/S: GAA 2880 of 2024
QU
Appointor
AC
Appointee
Catchwords:
Misuse of enduring power of guardianship - Case guardian in Family Court - Final orders made in Family Court by consent - Parental rights extinguished - Breach of duty to act in best interests - Insufficient investigations made by guardian - Obligation of guardian to make reasonable enquiries - Enduring power of guardianship deactivated by medical opinion - Appointor with capacity - Revocation of enduring power of guardianship
Legislation:
Family Court Act 1997 (WA), s 243
Family Court Rules 2021 (WA), r 102, r 104, r 105(2), r 109(1)(d), r 109(2), Pt 13
Guardianship and Administration Act 1990 (WA), s 4(2), s 43, s 51, s 51(2)(a), s 51(2)(e), s 84, s 110B s 110E, s 110F, s 110H, s 110J, s 110N, s 110N(1), s 110N(1)(b), s 110N(1)(b)(i), s 110N(1)(b)(ii), s 110N(1)(b)(iii), Pt 5, Pt 6, Pt 9A
State Administrative Tribunal Act 2004 (WA), s 32(4), s 35(1), s 46(1)
Result:
Enduring power of guardianship revoked
Category: B
Representation:
Counsel:
| Appointor | : | N/A |
| Appointee | : | Barrister H |
Solicitors:
| Appointor | : | N/A |
| Appointee | : | Law Firm G |
Case(s) referred to in decision(s):
Director General of Department of Transport v McKenzie [2016] WASCA 147
REASONS FOR DECISION OF THE TRIBUNAL:
(An oral decision was delivered on 3 September 2024. The following reasons comprise those reasons for decision edited only to anonymise parties, include headings and legislation, references to relevant evidence and authorities, correct grammatical errors and infelicity of language, without variation to the substance thereof.)
Introduction
QU is a vulnerable 32-year-old woman who has diagnoses including autism spectrum disorder, a mild intellectual disability, ADHD, complex Post Traumatic Stress Disorder, and a history of substance misuse. She also lives with painful rheumatoid arthritis and endometriosis.
In 2014, when she was 22 years old, QU signed an enduring power of guardianship appointing her aunty AC as her enduring guardian (EPG). Like all enduring powers of guardianship, the EPG comes into effect when QU does not have the capacity to make reasonable decisions about her personal matters.
QU's son OS will shortly turn two. OS has lived with his grandfather PP, who is QU's father and AC's brother, since he was nine months old. PP started proceedings in the Family Court of Western Australia (Family Court) in July 2023 and alleged that QU was unable to care for OS. PP obtained interim parenting orders that provided for OS to live with PP and for PP to have sole parental responsibility for him. QU filed documents in response seeking that OS be returned to her care.
PP gave AC a medical certificate (Certificate) prepared by Dr L which stated that QU did not have the capacity to make reasonable decisions about her personal matters, which enlivened the EPG. The Certificate had an obvious error, but AC took no steps to speak to Dr L to correct the error or to make her own enquiries about QU's capacity.
AC relied on the Certificate and the EPG to be appointed as QU's case guardian in the Family Court proceedings. Shortly after she was appointed, AC signed final consent orders without speaking to QU. The final orders mean that OS lives permanently with PP.
QU filed this application to the Tribunal seeking to have the EPG revoked on the basis that it had been misused. While I am satisfied on the evidence before me that QU has the capacity to make her own decisions, I have decided to revoke the EPG and publish these reasons to draw attention to the statutory obligation of every enduring guardian to act in the best interests of the appointor of an enduring power of guardianship.
Relevant legislation and background
Family Court Act 1997 (WA)
Section 243 of the Family Court Act 1997 (WA) makes it an offence to publish an account of proceedings that identify persons involved in family law proceedings. I have therefore anonymised all identifying information to maintain the confidentiality of the Family Court proceedings. For the same reasons, I will also make orders prohibiting the publication of any information which would identify QU, PP and AC.
State Administrative Tribunal Act 2004 (WA) (SAT Act)
When QU's application was filed, the Tribunal made the usual order for the appointee under an enduring power of guardianship, AC, to file a copy of the EPG and a statement setting out details of all decisions made using the EPG on behalf of QU (Statement).
Around 10 days after QU filed the application to the Tribunal, she filed a letter seeking to withdraw it. I did not allow the withdrawal at that time as I was not satisfied that it was in QU's best interests to do so.[1] The first hearing occurred around two weeks later. I had intended to discuss the withdrawal request with QU at the hearing but she did not attend. Only AC, her barrister and her solicitor attended.
[1] SAT Act, s 46(1).
Just prior to the hearing, AC filed the Statement which referred to the Family Court proceedings. I then ordered AC's solicitors to file copies of all documents filed in the Family Court proceedings.[2]
[2] SAT Act, s 35(1).
At the hearing, AC advised the Tribunal that she no longer wanted to act as the enduring guardian, which meant that the EPG would be of no effect and could be revoked on that basis. However, several concerning issues were discussed during the hearing, and I noted a number of inconsistencies between AC's evidence as set out in the Statement and in the Family Court documents.
Following the hearing, and due to my concerns, I directed an order to the medical centre where the general practitioner Dr L practices (Medical Centre) to produce a copy of all documents and records held in relation to QU.[3]
[3] SAT Act, s 35(1).
As QU did not participate in these proceedings, I have relied on the oral evidence from AC given at the Hearing, her written evidence set out in the Statement, submission made by AC's Counsel, the records received from the Medical Centre and the documents filed in the Family Court proceedings. The relevant features of the evidence are summarised later in these reasons.
Family Court Rules 2021 (Rules) - the appointment of a case guardian
A guardian is the 'manager of the affairs of a party':[4]
manager of the affairs of a party includes a person who has been appointed, in respect of the party, a trustee or guardian under a Commonwealth, State or Territory law.
[4] Family Court Rules 2021 (WA) (Rules), r 102.
A guardian will be appointed as the case guardian if they file a notice of address for service and an affidavit which provides their consent and includes evidence of their appointment as the 'manager of the affairs':[5]
A person who is a manager of the affairs of a party is taken to be appointed as the case guardian of the party if the person has filed—
(a)a notice of address for service; and
(b)an affidavit which —
(i)provides evidence that the person has been appointed manager of the affairs of the party; and
(ii)states that the person consents to being appointed as the case guardian of the party.
[5] Rules, r 105(2).
A person may be a case guardian if they are an adult and:[6]
…
(b)has no interest in the case that is adverse to the interest of the person needing the case guardian; and
(c)can fairly and competently conduct the case for the person needing the case guardian; and
(d)has consented to act as the case guardian.
[6] Rules, r 104.
If a case guardian is seeking to sign a consent order, they must file an affidavit setting out the facts relied on to satisfy the Family Court that the order is in the party's best interests:[7]
109.Duties of case guardian
(1)A person appointed as the case guardian of a party —
…
(d)if seeking a consent order (except an order relating to practice or procedure), must file an affidavit setting out the facts relied on to satisfy the court that the order is in the party's best interests.
[7] Rules, r 109(1)(d).
It does not appear from the Family Court documents provided to the Tribunal that such an affidavit was filed by AC to satisfy the Family Court that the final consent order was in QU's best interests.
Guardianship and Administration Act 1990 (WA) (GA Act)
The primary concern of the Tribunal is the best interests of the person in respect of whom the application is made, which is QU.[8] QU is the maker of the EPG, also known as the appointor.
[8] GA Act, s 4(2).
Enduring powers of guardianship were created by Pt 9A of the GA Act and have existed in Western Australia since 2008. The appointor must have reached 18 years of age and have full legal capacity at the time they sign the power.[9] The power must comply with the formal requirements set out in the GA Act.[10]
[9] GA Act, s 110B.
[10] GA Act, s 110E.
The Tribunal has the power to supervise the conduct of all guardians appointed pursuant to the GA Act, either by order of the Tribunal[11] or by an enduring power of guardianship. There is a public interest in ensuring that all guardians, however appointed, act in the best interests of the person concerned. This is particularly important as the guardian only acts when the person concerned is unable to make reasonable judgments in respect of matters relating to their person and is therefore highly vulnerable.
[11] GA Act, s 43.
When considering that a guardian has the power to decide where someone lives, what medical treatment they receive and make decisions in relation to legal proceedings,[12] the conduct of the guardian should be reviewed. The conduct of guardians appointed by the Tribunal will be reviewed at least every five years,[13] while the conduct of a guardian appointed under an enduring power of guardianship will only be reviewed if someone with a proper interest makes an application to the Tribunal.[14] As QU is the appointor, I am satisfied that she has a proper interest.
[12] Guardians can make decisions in legal proceedings that do not relate to the person's estate, for example, parenting, restraining orders or matters relating to the National Disability Insurance Scheme (NDIS).
[13] GA Act, s 84.
[14] GA Act, s 110J.
Section 51 of the GA Act applies to guardians appointed by the Tribunal or pursuant to an enduring power of guardianship.[15] This section stipulates that the guardian must act in the best interests of the person concerned:
[15] GA Act, s 110H.
51.Guardian to act in best interests of represented person
(1)Subject to any direction of the State Administrative Tribunal, a guardian must act according to the guardian's opinion of the best interests of the represented person.
(2)Without limiting the generality of subsection (1), a guardian acts in the best interests of a represented person if the guardian acts as far as possible —
(a)as an advocate for the represented person;
(b)in such a way as to encourage the represented person to live in the general community and participate as much as possible in the life of the community;
(c)in such a way as to encourage and assist the represented person to become capable of caring for themself and of making reasonable judgments in respect of matters relating to their person;
(d)in such a way as to protect the represented person from neglect, abuse or exploitation;
(e)in consultation with the represented person, taking into account, as far as possible, the wishes of that person as expressed, in whatever manner, or as gathered from the person's previous actions;
(f)in the manner that is least restrictive of the rights, while consistent with the proper protection, of the represented person;
(g)in such a way as to maintain any supportive relationships the represented person has; and
(h)in such a way as to maintain the represented person's familiar cultural, linguistic and religious environment.
The GA Act empowers the Tribunal to revoke or vary an enduring power of guardian.[16] It is not necessary for the Tribunal to be satisfied that the presumption of capacity is set aside to make orders under Pt 9A of the GA Act, meaning that the Tribunal can make an order under Pt 9A even when the appointor has capacity.[17]
[16] GA Act, s 110N.
[17] Part 9A is not 'subject to section 4' like Pt 5 - Guardianship or Pt 6 - Estate Administration.
If a sole guardian is appointed, there is no guidance provided as to the circumstances when the Tribunal may revoke or vary the appointment. However, when joint guardians are appointed, s 110N(1)(b) stipulates three reasons why the appointment of one of the joint guardians may be revoked.
The EPG solely appoints AC so it is not necessary that I rely on any of the three reasons cited in s 110N(1)(b) as a basis for revoking the EPG. However, this section provides guidance as to the intention of Parliament when drafting the legislation and the mischief that s 110N(1) was seeking to remedy.[18]
[18] Director General of Department of Transport v McKenzie [2016] WASCA 147 at [46].
110N.Revocation or variation of enduring power of guardianship
(1)The State Administrative Tribunal may make an order—
(a)revoking an enduring power of guardianship; or
(b)revoking the appointment of one or some of the persons who are joint enduring guardians under an enduring power of guardianship if the person or each of the persons —
(i)wishes to be discharged; or
(ii)has been guilty of such neglect or misconduct or of such default as, in the opinion of the Tribunal, renders the person unfit to continue as an enduring guardian (emphasis added); or
(iii)appears to the Tribunal to be incapable by reason of mental or physical incapacity of carrying out the person's duties; or
(c)revoking or varying any of the terms of an enduring power of guardianship.
As I will set out in detail below, I am satisfied on the evidence before me that AC's conduct as guardian fell well below the standard required in the following ways:
(a)she did not understand that her obligation to act in QU's best interests as her enduring guardian extended to her role as case guardian in the Family Court;
(b)she accepted the Certificate, which had an obvious error, without making any enquiries with Dr L about QU's capacity or to correct the error;
(c)she did not act appropriately and in QU's best interests when receiving evidence from Hospital B and Dr R on 5 and 8 December 2023, which was that QU had capacity and deactivated the EPG;
(d)in addition to acting when she did not have the legal authority to do so, as QU had capacity, AC misrepresented the evidence from Hospital B and Dr R in her affidavit filed with the Family Court and relied on the flawed Certificate to be 'taken to be' the case guardian; and
(e)she did not speak to QU or advocate for her before signing the final consent orders, and signed the orders in circumstances where there was no need to finalise the Family Court proceedings.
Failure to understand the role
AC's evidence is that:[19]
.... the family court proceedings are not related to my role as guardian[.]
[19] Statement, paragraph 4.1.
I asked AC whether, as case guardian, she kept QU updated about the Family Court proceedings. She told me:[20]
I tried to, yes, but yes, her father kept her up-to-date with the proceedings, where they were going, and, you know, that he was going for final orders.
[20] ts 3, 3 July 2024.
I asked her what her understanding of her role as case guardian was, and AC explained that:[21]
It would be to help [QU] with, like, relating with the lawyers, like, filling out documents, that kind of stuff, and … supporting her through the whole process, but being the logical one as well. Like, I would step into [QU's] shoes.
[21] ts 3, 3 July 2024.
I asked AC about what she did as case guardian and the following exchange occurred:[22]
[22] ts 4 - 5, 3 July 2024.
MEMBER: … what discussions did you have with her about, you know, the decisions that you were making as her case guardian?
AC:I tried to call her about the final orders when I had received them, and I wanted to talk to her about it. And I also wanted to see if she totally understood what they meant and if she was still - thought it was what - it was the best thing to do, but my attempt to talk to her as her aunty and her case guardian were unsuccessful.
MEMBER: So you weren't able to talk to her about the final orders?
AC:No.
MEMBER: So then what happened with the final orders?
AC: I signed them[.]
I am satisfied, and I find, that AC did not comply with the most basic requirement, when acting in QU's best interests as enduring guardian, to speak to her about the Family Court proceedings to keep her updated and ask her what she wanted.[23]
[23] GA Act, s 51(2)(e).
I am satisfied, and I find, that it was inappropriate for AC to rely on PP to update QU in relation to the Family Court proceedings when his interests were directly opposed to QU's. It is clear from the documents QU filed in the Family Court proceedings that she wanted OS returned to her care, so it is a complete failure on EC's part:
(a)not to communicate directly with QU to ensure that she was aware of and understood what was happening in the Family Court proceedings; and
(b)to sign final consent orders without speaking to QU to ask her what she wanted.
Failure to make enquiries about the Medical Certificate
AC's evidence is that:[24]
[PP] organised an appointment with [Dr L] at [the Medical Centre]. I did not know about this appointment. After this appointment, [Dr L] prepared the [Certificate].
To [AC]
I am a Medical Practitioner at [Medical Centre] in West Australia. [QU] born [date] is a patient at my practice.
You have informed me that you hold an Enduring Power of Guardianship dated 20 March 2014 whereby [QU] appoints you as her Enduring Guardian to act at times that her doctor provides a written opinion stating that she is unwell and does not have the capacity to make reasonable judgments in respect of matters relating to her person.
[QU] attended my practice on June 20th, 2023 and following an examination of [QU], it is my opinion that [QU] does not have capacity to make reasonable judgements in respect of matters relating to her person.
[Dr L]
[24] Statement, paragraph 3.15.
My review of the records from the Medical Centre show that QU did not see Dr L on 20 June 2023. She did see him on 19 June 2023, and the notes from that appointment set out the usual types of complaints most new mothers would have. There are no comments in the notes of Dr L that indicate that an assessment occurred or that there was a concern about QU not having the capacity to make reasonable judgments in respect of matters relating to her person. It appears that Dr L was acting on her instructions as a referral was made, as was a request for QU to speak with a female doctor at the practice about her endometriosis.
I asked AC, if PP organised the appointment and the Certificate, why did it say that Dr L spoke to AC? AC said:[25]
Because at the time [QU] was in a very bad way - very bad way - taking drugs and very mentally unstable, and I had totally forgotten about - this was before all the court stuff. This was just trying when she was in crisis. I had totally forgot about my EPG. And after a very distressful [sic] phone call from her father, who was worried sick, I just - you know, we were all pretty upset and sad, and then I remembered. And I went and got them and I messaged my brother and said, "I'm still EPG, I'm sure. If you need my help with anything" - because previously I had got her into rehab and stuff, you know, when I was the only one responsible for her. And the first port of call is to go to a doctor to have it reactivated. I've never had it activated. The doctors or the people have rung me. I've just shown the paperwork and got her into treatment and taken her to the doctor for referrals and stuff, so - but I was not there for this appointment[.]
[25] ts 5 - 6, 3 July 2024.
I do not know why the Certificate contains the information that it does, but I am satisfied, and I find, that AC failed in her obligation to QU to act in her best interests when she took no action to speak to Dr L about QU's capacity or ensure that the Certificate was true and correct, when it clearly was not. Had she done so, she would have likely become aware that the date on the Certificate was also incorrect.
All guardians acting pursuant to an enduring power of guardianship must satisfy themselves that the appointor is unable to make reasonable judgments in respect of matters relating to their person before acting. To rely on a medical certificate prepared by a doctor that the guardian had not spoken to, particularly when there is an obvious error on the face of the document, is unacceptable.
When acting for an appointor who has fluctuating capacity, the guardian must continually assess the appointor's capacity to ensure that they only act as substitute decision-maker at times where the appointor does not have the capacity to make their own decisions. This is the clear intention of Pt 9A of the GA Act.
Observations about the Medical Certificate
I observe that it is unclear on the evidence when PP obtained the Certificate and provided it to AC, as the first time it is referred to in the documents before me is 1 December 2023 in the letter to Hospital B, which is discussed next.
On 26 June 2023, AC wrote to OS's daycare centre to set out that she has concerns about QU and referred to:[26]
… the likely circumstance that I activate the Enduring Guardianship[.]
[26] Letter dated 26 June 2023 annexed to Statement as Annexure B.
This implies that she did not have the Certificate at that time, as upon receiving notice of the declaration having been made by Dr L that QU lacked capacity on 20 June 2023, the EPG was 'activated' by operation of law[27] and AC was empowered to act as guardian.
[27] GA Act, s 110F.
In a case information affidavit filed at the Family Court on 11 July 2023, PP describes how on 7 July 2023, he made a formal notice of concern to the Department of Child Protection and Family Services:[28]
… about [OS's] welfare and that he was safe and well with me in our family home. My concern was that I had no legal right (aside from EPG that Guardian [sic] could evoke on behalf of [QU]) to prevent [QU] from changing her mind and coming to take [OS].
[28] Case Information affidavit of PP sworn 11 July 2023, page 7.
Again, if PP was in possession of the Certificate, the EPG would have been 'evoked' on 20 June 2023 and provided AC with the legal right PP referred to in the case information affidavit.
In a further affidavit sworn on 31 July 2023, PP stated:[29]
13.There is presently an Enduring Power of Guardianship (EPG) in favour of [QU's] aunt [AC] dated 20 March 2023 [sic]. A copy of the EPG is annexed hereto and marked "A".
14.I understand that [AC] is willing to swear an affidavit confirming that the EPG has not been withdrawn to the best of her knowledge.
15.I may press for the appointment of a Case Guardian for [QU].
[29] Affidavit of PP sworn 31 July 2023, paragraphs 13 - 15.
I observe that the existence of the Certificate was relevant information that one would expect to have been included, particularly when PP referred to the EPG in two sworn documents.
I also observe that PP indicated that he may press for the appointment of a case guardian on 31 July 2023.
Medical information from Dr R and Hospital B about QU's capacity
In November 2023, QU voluntarily admitted herself to Hospital B for three weeks. On 1 December 2023, AC instructed her solicitors to write to Hospital B because she was not invited to a meeting about QU's future treatment and she wanted information about what was discussed.[30] The Certificate was referred to in the letter to Hospital B, but not provided.[31]
[30] Statement, paragraph 3.25.
[31] Statement, Annexure E.
The letter from AC's solicitor dated 1 December 2023 states:[32]
… [AC] is presently advised (emphasis added) by [QU's] GP that [QU] does not have that capacity and considers that her responsibilities under the EPG have been engaged.
[AC] understands that a short time ago a decision was made by [Hospital B] in consultation with [QU's] treating Psychiatrist that upon her discharge, [QU] receive 18 months of treatment at [Treatment Centre]. [AC] was not invited to participate in those discussions and accordingly does not know why the decision was made, what the proposal involves in terms of accommodation and treatment, how the treatment and accommodation may affect [QU's] capacity to spend time with her child, the costs, the alternatives and other matters.
So that [AC] can discharge her obligations under the EPG, we would be grateful if [QU's] Psychiatrist would tell us:
1.Does [QU] presently have capacity to make reasonable judgments in respect to matters of her person and if not, why not? …
[32] Statement, Annexure E, page 1 of letter of 1 December 2023.
AC sets out in the Statement:[33]
[33] Statement, paragraph 3.27 - 3.29.
3.27On 5 December 2023, l was informed that my solicitors received a call from [Hospital B] and the position of [QU's] treating psychiatrist was that:
(a)ln the opinion of the psychiatrist, [QU] had capacity;
(b)She was able to make decisions about her person and who her information may be released to; and
(c)[QU] had not consented to the release of information to myself ...
…
3.28On 6 December 2023, I am informed that [PP] received a letter signed by [QU] consenting to her medical records being released to me.
3.29On 8 December 2023, l am informed that my solicitors received an email from [Dr R] of [Hospital B]. ln this email, [Dr R] stated it was his view that during the period of admission under his care, [QU] had the capacity to make decisions in relation to her care and treatment.
The email of 8 December 2023 from Dr R, Director of Medical Services and Consultant Psychiatrist at Hospital B, states:
In regards to the specific questions you have asked in your letter, please see the answers below.
1.Does [QU] presently have capacity to make reasonable judgments in respect to matters of her person and if not, why not?
[QU] was admitted under my care at [Hospital B] between 6 November and 24 November 2023. During this time I had regular reviews with her. In my clinical opinion, after having met her and reviewed all the information that was provided to me, I am of the view that during the period of admission under my care, [QU] had the capacity to make decisions in relation to her care and treatment.
This is clear evidence from the consultant psychiatrist that reviewed QU regularly for three weeks in an in-patient setting, and had reviewed all the information provided to him, that QU had capacity. I find that AC chose to ignore this evidence.
I am satisfied, and I find, that upon receipt of the medical opinion by AC's solicitor on 5 December 2023, which was confirmed by the email of 8 December 2023, the EPG was deactivated by the operation of s 110F of the GA Act which states:
110F.When enduring guardian may act
An enduring power of guardianship has effect, subject to its terms, at any time the appointor is unable to make reasonable judgments in respect of matters relating to his or her person.
AC submits that the opinion from Dr R was not sufficient to deactivate the EPG as it did not address whether QU was unwell or had capacity in a 'broad sense' to make decisions in respect of her person. I do not accept that submission. Dr R answered the question he was asked. AC took no steps at the relevant time to satisfy herself of any other matter, so she cannot rely on what the doctor did not say.
I am satisfied, and I find, that on 5 December 2023 when AC's solicitor was advised that the medical opinion of QU's treating psychiatrist was that QU:
(a)had capacity;
(b)was able to make decisions about her person;
(c)was able to make decisions about who her private medical information may be released to; and
(d)did not consent to the release of her private medical information to AC,
AC had no authority to act.
Observation about QU's private medical information
AC's solicitor was advised by Hospital B that QU did not want her information released to AC and that QU had the capacity to make that decision. This evidence and QU's wishes were ignored by AC, and rather than accepting that QU's medical information would remain confidential, I observe that measures were taken to ensure that Hospital B would release QU's medical information to AC, as the very next day on 6 December 2023, PP provided:[34]
… a letter signed by [QU] consenting to her medical records being released to [AC].
[34] Statement, paragraph 3.28.
Misrepresentation of capacity evidence in the Family Court proceedings
AC swore an affidavit on 11 April 2024 setting out the evidence she relied on to be appointed as the case guardian. Paragraph 17 of the affidavit states:[35]
[35] AC Affidavit sworn 11 April 2024, paragraph 17.
17.On 20 June 2023, [QU] attended upon [Dr L] at [Medical Centre]. [Dr L] prepared a letter addressed to me that included the following conclusion:
"… following an examination of [QU], it is my opinion that [QU] does not have capacity to make reasonable judgments in respect of matters relating to her person".
On receipt of this letter, I have exercised my powers under the EPG for [QU's] benefit.
Annexed hereto and marked C is a copy of the letter from [Dr L].
18.In early November 2023, [QU] voluntarily presented to [Hospital B] where she stayed for 3 weeks. I assisted [QU] with this process together with [PP]. Following [QU's] admission to [Hospital B] I started to gather her medical records via Freedom of Information Requests. I did this because I wanted [Hospital B] to have as much information as possible to assist and treat [QU]. I have now received records from [Hospital A] and [Centre C]. I have not annexed these records to this Affidavit because they are extensive however, these documents are in my disclosure.
19.Following [QU's] admission to [Hospital B], on 1 December 2023, my solicitors [Firm G] wrote to [Hospital B]. At the time, I instructed my solicitors to write to [Hospital B] because a meeting with [QU] in relation to her future treatment had occurred without me.
Annexed hereto and marked D is a copy of the letter from my solicitors to [Hospital B].
20.On 8 December 2023, [Dr R] provided his response in which he stated:
"I am of the view that during the period of admission under my care, [QU] had the capacity to make decisions in relation to her care and treatment".
[Dr R] did not provide his view on matters outside [QU's] care and treatment.
Annexed hereto and marked E is a copy of [Dr R's] email.
I find that the comment that Dr R did not provide his view about matters outside QU's care and treatment is a misrepresentation of the totality of the evidence that was available to AC on 5 and 8 December 2023.
The context of the request for information from Hospital B, set out in the letter of 1 December, was that information was sought by AC as she was not invited to the meeting at Hospital B to discuss QU's discharge, accommodation and treatment. Dr R's opinion was that QU had the capacity to make decisions about her care and treatment, which were the relevant personal matters at that time the opinion was sought.
Dr R was not asked to comment on 'matters outside QU's care and treatment' in December 2023 or at any other time. For example, he was not asked whether QU had the capacity to instruct solicitors in the Family Court proceedings.
Further observation about QU's private medical information
I observe AC's comment that following QU's admission to Hospital B, which occurred on 6 November, she started gathering QU's medical records via Freedom of Information requests. However, AC's evidence shows that the decision about the Freedom of Information requests and access to information was granted on 24 October 2023.[36] Such requests can take up to 45 days to receive a decision, which means that AC's application for QU's medical records was made prior to 24 October 2023.
[36] Statement, Annexure D.
AC advised that she used the EPG and relied on the Certificate to obtain QU's medical records through the Freedom of Information requests. QU did not consent to this. QU's medical records have now been disclosed to all parties in the Family Court proceedings pursuant to the obligation of full and frank disclosure.[37]
[37] Rules, r 109(2) and Pt 13.
Failure to consult with QU about the Family Court proceedings
On 15 April 2024, AC filed the necessary paperwork to be appointed as QU's case guardian, which was granted on 16 April 2024. On 17 May 2024, the Independent Children's Lawyer signed the minute of final consent orders. On 28 May 2024, both PP and AC signed. The orders were made by the Family Court on 31 May 2024, finalising the Family Court proceedings.
Aside from the obvious failure to fulfil her obligations to advocate for QU, consult with her about the final orders before she signed them, and take her views and wishes into account,[38] there was also no observable need for final orders to be made at this time.
[38] GA Act, s 51(2)(a) and s 51(2)(e).
The interim orders of 12 July 2023 and the final orders are in substantially the same terms, save for PP's ability to obtain a passport for OS and to travel overseas with him. There was no pressing requirement that I could identify from my review of the Family Court documents for final orders to be signed to finalise the parenting proceedings.
Conclusion
This case demonstrates consistent breaches of AC's obligation to act in QU's best interests when acting as enduring guardian. I am satisfied, and I find, that:
(a)AC did not understand her basic obligation to act in QU's best interests;
(b)she did not understand that her obligation to act in QU's best interests as her enduring guardian extended to her role as case guardian in the Family Court;
(c)accepting the Certificate and relying on it was a failure of AC to properly consider the important evidence upon which she would rely to exercise her legal powers as QU's substitute decisionmaker;
(d)ignoring the evidence of Hospital B, which I have found deactivated the EPG on 5 December, was completely unacceptable;
(e)on the basis that AC held the view that the opinion of Dr R did not address whether QU had capacity in the 'broad sense', it is also unacceptable that AC took no action to seek further information to satisfy herself;
(f)AC misrepresented the evidence from Hospital B and Dr R, and relied on that and the Certificate to be appointed as the case guardian in the Family Court proceedings;
(g)AC signed final parenting orders without consulting QU that extinguished QU's parental responsibility for OS;
(h)AC's actions have created a situation where QU can only spend time with OS if her father agrees;
(i)AC has breached s 51 of the GA Act in that she has not advocated for QU and not consulted with her to take her views and wishes into account;[39] and
(j)AC's failures are of such significance that she is wholly unfit to be QU's guardian.
[39] GA Act, s 51(2)(a) and s 51(2)(e).
I therefore revoke the EPG.
I observe that were it not for QU's capacity to make the application to the Tribunal to have the EPG revoked, and the powers of the Tribunal to take into account all relevant information in QU's best interests,[40] it is devastating to think about how long this situation may have continued.
[40] GA Act, s 4(2) and SAT Act, s 32(4).
Orders
The Tribunal notes:
1.[QU] signed an enduring power of guardianship on 20 March 2014 appointing [AC] as her enduring guardian.
The Tribunal orders:
1.The enduring power of guardianship is revoked.
2.Pursuant to 62(1)(c) and s 62(3) of the State Administrative Tribunal Act 2004 (WA) [QU's], [PP's] and [AC's] names, and any information that might enable them to be identified, is not to be published.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS R BUNNEY, MEMBER
5 SEPTEMBER 2024
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