Re: NCK - [2009] WASAT 158

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: HUMAN RIGHTS

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION: Re: NCK [2009] WASAT 158

MEMBER: MS F CHILD (MEMBER)

HEARD: DETERMINED ON THE DOCUMENTS

DELIVERED : 18 AUGUST 2009

FILE NO/S: GAA 1648 of 2009

BETWEEN: NCK
Applicant

Catchwords:

Guardianship and Administration - Access to medical reports and other documents - Represented person deceased - Application allowed in part

Legislation:

Guardianship and Administration Act 1990 (WA), s 97(1)(c), s 112(4), Sch 1 para 12(c)
State Administrative Tribunal Act 2004 (WA), s 74

Result:

Application allowed in part

Category: B

Representation:

Counsel:

Applicant: N/A

Solicitors:

Applicant: N/A

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

MB [2004] WAGAB 25
Re MM (2001) 28 SR (WA) 320

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

These reasons relate to a determination by the Tribunal of an application for access to documents held on the file of the Tribunal.
The application by the son of NCK, sought release of medical evidence and other documents submitted for hearing of applications for the appointment of a guardian and an administrator of the estate of NCK heard by the Guardianship and Administration Board in 2004.
The application for access to the documents followed the death of NCK in 2009 and was for the stated purpose of probate proceedings of her will, which were before a court in another jurisdiction.
The application was allowed in part but access to the medical reports was refused because the purpose for which their release was sought is outside the purposes of the Guardianship and Administration Act 1990 (WA), and is contrary to the public interest in maintaining the integrity of the Tribunal's processes in dealing with applications made under that Act. The one document which was released was a document that did not identify NCK.

Background

An application for release of documents on a file held by the State Administrative Tribunal (Tribunal) was made on 25 June 2009, pursuant to s 112(4) of the Guardianship and Administration Act 1990 (WA) (GA Act). The application was determined by a member of the Tribunal on the papers on 12 August 2009. These written reasons are produced pursuant to s 74 of the State Administrative Tribunal Act2004 (WA).
For the purposes of these reasons, the name of the applicant, the represented person, all other parties including medical witnesses will be removed consistent with the practice of the Tribunal in respect of applications made under the GA Act to avoid identification of the represented person and consistent with Sch 1 para 12(c) of the GA Act. References to documents which might also identify the represented person have also been amended to remove any identifying details.
Some of the documents requested are held in a file created by the former Guardianship and Administration Board, (Board), now in the possession of the Tribunal. The Tribunal took over the functions and jurisdiction of the former Board in 2005. The file contains documents relating to applications made for the appointment of guardian and an administrator for NCK made under the GA Act in 2004. As some of the documents sought are 'held by the Tribunal', they are subject to the provisions of s 112(4) of the GA Act.
The applicant for access is the son and only child of NCK, and one of the original applicants before the Board.
By way of background, following the hearing of the original applications in 2004, the spouse of NCK was appointed the administrator of her estate and the Public Advocate was appointed her limited guardian by the Board. The functions of the guardian included determining where the represented person was to live and to hold her passport. A short time later, those orders were revoked and the Public Trustee was appointed the plenary administrator of the estate and the Public Advocate the plenary guardian. This followed notice to the Board that the spouse had arranged the removal of the represented person from Western Australia having misrepresented the position regarding her passport to the appointed guardian. The evidence was that the spouse had sold the house registered in the sole name of the represented person and had deposited the proceeds of the sale in an account in his name alone. Applications followed for the appointment of the equivalents of guardian and administrator in the jurisdiction to which the represented person had been moved. The same jurisdiction in which the applicant advises probate proceedings of the will of the represented person are now underway. Later, the orders appointing an administrator and a guardian in Western Australia were revoked, as there were arrangements in place in the jurisdiction in which the represented person had been moved.
According to a letter on the Tribunal's file received from the applicant, the represented person died on 4 April 2009, of advanced dementia. In that letter, he raises question about a will executed by the represented person in 2004. By letter dated 25 May 2009, it was explained that the Tribunal has no role to play in relation to a will of the represented person.

Current application

The applicant states in his application that he seeks access to copies of the following :
1.Transcripts of hearings that took place on 4 and 10 August 2004, in respect of my mother, [name deleted].
2.Any documents that relate to the terms and conditions of entry of my mother to [name of residential care facility deleted].
3.Any medical reports submitted in respect of my mother’s condition.
4.Any documents submitted by the Public Advocate relating to my mother’s best interests.

Section 112(4) of the Guardianship and Administration Act 1990

The Full Board of the Guardianship and Administration Board, when considering an application for review of refusal of inspection under s 112(4), made by a single member, made the following statements in respect of the operation of that section: see MB [2004] WAGAB 25 at [34]:
The circumstances in which a person is entitled to inspect or have access to documents or other materials held by the Board are limited. This is to be expected in the administration of an Act that provides for the guardianship of adults who need assistance in their personal affairs and the administration of the estate of persons who need assistance in their financial affairs.
Documents and other materials held by the Board very often go to matters that are highly confidential in respect of the health and safety of the person who may be in need of a guardianship order. In those circumstances, it is to be expected that only a limited class of persons would ordinarily be entitled to inspect documents held by the Board.
And later at [35], the Full Board restated the policy underpinnings of the provision:
As observed by the Board on an earlier occasion, the provisions of s 112 reinforce two important policies: firstly, the protection of the privacy of the person involved in the proceedings before the Board and in particular a proposed represented person or a represented person; and secondly, the public interest in the integrity of the Board processes which relies on the ability to obtain sensitive information from a variety of sources: see Re MM (2001) 28 SR (WA) 320 at 332.
The Full Board went on to say at [59]:
We agree with the observation of the Board in Re MM (supra), at 332, that s 112(4) provides the Board with a broad discretion on the application of any person or on its own initiative to allow inspection of or access to documents lodged with or held by the Board for the purposes of any application.
We also agree with the further expression of opinion of the Board in Re MM, at 332, that s 112(4) is not limited in its' terms and, in an appropriate case, may include inspection or access to relevant documents or materials for purposes other than proceedings before the Board, although the circumstances in which the Board would ordinarily consider exercising this power may be considered limited, as the Board said in Re MM, at 332:
…
Given the sensitive and confidential nature of much of the material held by this Board, we are of the view that where an applicant requests the Board to exercise its discretion under s 112(4) for purposes not related to proceedings before the Board, he or she must provide very cogent reasons and demonstrate a particular need as to why the inspection should be allowed (see generally DeHass v Murcia and Associates, Supreme Court of Western Australia Library No 980633, per Templeman J.) It is not sufficient to rely on a general desire to be informed.
When considering the nature of the discretion to allow access under s 112(4), the Full Board confirmed that discretion is a wide one and may be exercised on an application or at the initiative of the Board (now the Tribunal).
The Full Board considered the circumstances when this discretion might be exercised: at [66] and [67]:
We think there are good reasons, relating to good public administration, why the Board's power to grant access to relevant documents and materials under s 112(4) should not be construed narrowly. It is possible to envisage a number of circumstances in which, for example, persons charged by law with the responsibility to conduct investigations in the public interest may seek to inspect documents or materials that were lodged with and are held by the Board for the purpose of an application. The Board should be able to determine on an application-by-application basis whether the request for access by a person should be granted. But, as the Board said in Re MM (supra), the reasons advanced in support of a request for access under s 112(4) will need to be cogent and be justified on a 'need to know' basis.
The present application for inspection is not in the nature of circumstances that the Full Board envisaged in Re MM (2001) 28 SR (WA) 320, which might lead to the exercise of discretion in favour of the applicant such as an 'official investigation in the public interest'.
Nonetheless, the Full Board considered that there was a requirement that each application under s 112(4) be assessed and determined application by application. I respectfully agree with this proposition.
In respect of the classes of documents sought by the applicant:
1.Transcripts of hearings that took place on 4 and 10 August 2004, in respect of my mother, [name deleted].
No transcripts were produced of hearings on the dates noted. Reasons were produced of the decision of 10 August 2004, and have previously been provided to the applicant. Since the hearings have not been transcribed, the documents sought are not held by the Tribunal. This part of the application is dismissed.
2.Any documents that relate to the terms and conditions of entry of my mother to [name of residential care facility deleted].
A bundle of documents including a disclosure statement of the residential facility named by the applicant is held on the file. Since there is nothing in the documents which identify the represented person, access by way of a copy of the documents is allowed.
3.Any medical reports submitted in respect of my mother’s condition.
4.Any documents submitted by the Public Advocate relating to my mother’s best interests.
There are a number of medical reports on the file produced both for guardianship proceedings in Western Australia and in the overseas jurisdiction.
The Public Advocate also provided reports in her role as appointed guardian and at the initial hearing pursuant to a referral for investigation of the applications made under s 97(1)(c) of the GA Act. There are also reports and correspondence from the Public Advocate relating to the circumstances of the represented person.
The medical reports were provided by health professionals and others including the Public Advocate for the purposes of the proceedings before the Board, that is, the hearing of applications for the appointment of an administrator and a guardian for NCK and not for the purpose the applicant now proposes, which is the challenge to the will of the represented person.
The objects of the GA Act include to provide for guardianship of adults who need assistance in their personal affairs [and] for the administration of estates of persons who need assistance in their financial affairs. The legislation is not related to the administration of estates of deceased persons.
Frequently there may be material held on a file of the Tribunal containing documents relating to proceedings commenced under the GA Act, which may be said to have relevance for other proceedings which are outside the purposes of the GA Act.
The medical reports provided in respect of the represented person refer to a diagnosis of dementia. If there is a doubt about the capacity of the represented person to execute a will submitted for probate, it is a matter for the court dealing with that application to resolve that question. Medical records of the represented person which relate to her diagnosis may be able to be obtained from the creators of those records through the appropriate processes of the court.
To allow release of, or access to the documents to the applicant from the Tribunal’s file, for the stated purpose of the application, does not uphold the public interest identified by the Full Board in Re MM, and confirmed in Re MB, in maintaining the integrity of the processes of the Board (now the Tribunal), in determining applications for the appointment of guardians and administrators for persons for whom such applications are made.
As was stated by the Full Board, that process 'relies on the ability to obtain sensitive information from a variety of sources'. In particular, the Tribunal is reliant on the willingness of medical and other professionals to provide reports (usually without cost), to enable the Tribunal to determine the matters before it.
If it were apparent that reports provided for the purposes of dealing with an application for the appointment of an administrator or a guardian may be available for the purposes as outlined by the applicant, then those who produce reports or put material before the Tribunal at hearings may be hesitant to do so. The Public Advocate's functions are set out in the Act and include the investigation of matters referred and advocacy of the best interests of the represented person; it would not be an appropriate use of the reports produced for that purpose to be made available as the applicant proposes. Therefore, that part of the application for release of the medical reports and the Public Advocate's reports is dismissed.

Orders

Access is allowed in part.

I certify that this and the preceding [28] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS F CHILD, MEMBER