Re: RSMS
[2005] WASAT 162
•8 JULY 2005
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: HUMAN RIGHTS
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990
CITATION: RE: RSMS & ANOR [2005] WASAT 162
MEMBER: DR E LEIPOLDT (SENIOR SESSIONAL MEMBER)
HEARD: 18 APRIL 2005
DELIVERED : 8 JULY 2005
FILE NO/S: GAA 262 of 2005
BETWEEN: RE: RSMS
Represented Person
MRS
Applicant
Catchwords:
Guardianship and administration - Guardianship and Administration Act 1990 (WA) - Application - Need
Legislation:
Guardianship and Administration Act 1990 (WA), s 4(2)(c), s 43, s 119
Result:
Application dismissed
Category: B
Representation:
Counsel:
Represented Person : N/A
Applicant: Self-represented
Solicitors:
Represented Person : N/A
Applicant: Self-represented
Case(s) referred to in decision(s):
Nil
Case(s) also cited:
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Summary
The State Administrative Tribunal heard an application on 18 April 2005 where the mother of 21‑year‑old woman RSMS applied for guardianship over her daughter. In essence the application was motivated by the parents' sense of "illegality" in making decisions on behalf of their daughter. Such decisions involved consent to medical treatment, choice of place of accommodation and signing any papers. The Tribunal found that all such issues could be, and were, dealt with without the need for it to make an order appointing a guardian. Medical consent was legally given by the parents under s 119 of the Guardianship and Administration Act 1990 (WA). Accommodation decisions were not imminent and there was no suggestion that when and if such a situation arose that they could not legally be made anyway, without the need for any order. No problems had been encountered by the parents in signing any forms on behalf of their daughter and it was likely that her appointed plenary administrator, the Public Trustee, could do so if the need did arise. Therefore the Tribunal concluded that, with regard to their concerns, all that the parents were doing now appeared legal and was a viable less restrictive alternative to the making of an order. The Tribunal dismissed the application.
Introduction
On 4 March 2005 MRS applied for a guardianship order for her daughter RSMS. RSMS has an intellectual disability, has epilepsy and is legally blind.
The Public Trustee of Western Australia had for the past four years managed RSMS's funds. RSMS had received these funds in compensation awarded to her under a court order.
Present at this hearing were RSMS's parents Mr GRS and Mrs MRS and Public Trustee officer KOL.
The application for guardianship was brought out of concern that the parents may not be able to give consent for medical treatment, to any change of accommodation, or advise a lawyer on their daughter's behalf. Other concerns involved administration matters such as the ability to sign documents, including for a passport application, a birth certificate and banking. The parents had concerns about signing anything on their daughter's behalf as they thought that doing so could be illegal.
The applicant sought to be appointed as guardian.
Background
RSMS is a 21‑year‑old woman who has an intellectual disability, is legally blind and has epilepsy. She lives with her parents who were described as very supportive by HJG, manager of a recreation service that RSMS uses.
Reports from Dr O, a general practitioner, and HJG, showed that RSMS did not have capacity to make her own decisions about any lifestyle matters, such as decisions about her personal health care, living situation or financial affairs.
In her report, HJG supported the application for guardianship on the basis that RSMS "had no money skills at all" and would be vulnerable to exploitation.
The attending representative from the Public Trustee, KOL supported the application on the basis that s 119 was inadequate to have RSMS's mother act as guardian for purpose of giving consent to medical treatment and to sign documents on her behalf. She argued that the mother could not act under s 119(3)(c). Section 119(3)(c) empowers a person to give consent to medical treatment who:
"on a regular basis, provides or arranges for domestic services and support to the person needing the treatment but does not receive remuneration for doing so."
KOL argued that the mother was precluded from so acting as she was a paid carer of her daughter, and was paid by the Trust administered by the Public Trustee. Therefore her husband may be considered first, before his wife, when consent is needed, under s 119(d) which empowers a person to give consent, who "is the nearest relative … of the person needing the treatment and who maintains a close personal relationship with the person needing the treatment". The concern was that if Mr GRS was away for some time there was no one to give consent.
Capacity
On hearing any guardianship order the Board must be satisfied that the requirements in s 43 of the Guardianship and Administration Act 1990 (WA) ("the Act") apply. The Board must be satisfied on the evidence that the represented person is incapable within the terms of s 43(1)(b).
Evidence
In making its judgment about capacity of the represented person the Board relied on the following documents:
In his report dated 14 April 2005 Dr O stated that RSMS lacked the capacity to make decisions about her personal health care (including consent to medical and dental treatment, and about self care), living situation (including routine decisions about household and accommodation), and financial affairs.
HJG confirmed this global lack of capacity in her report of 4 April 2005.
Both parents agreed with these assessments of RSMS's capacity.
Findings
In the face of this undisputed evidence the Tribunal is satisfied that RSMS lacks the capacity to make any decisions about her personal health care and living situation.
Upon this evidence the Board is satisfied that s 43(1)(b) is met and that RSMS is a person for whom a guardianship order could be made.
Need
The Board can only make an order if the needs of the person in respect of whom an application is made could not, in the opinion of the Board be met by other means less restrictive of the person's freedom of decision and action.
Evidence
The evidence as to the question of need is as follows:
With regard to accommodation RSMS's parents agreed there were no imminent decisions to be made. They were happy to have RSMS continue to live with them in her parental home for the foreseeable future.
With regard to consent to medical treatment the parents gave evidence that to date no difficulties had been encountered with the giving of consent to medical treatment. With regard to signing for any forms on RSMS's behalf, the tribunal heard evidence that the parents were unsure about whether they could sign for a passport application. They had not made direct enquiries with the authorities that issue passports. However they had been able to sign for her Medicare and HBF forms
With regard to legal representation, KOL affirmed that any such representation would be in connection with her estate. As such that is not a guardianship matter. RSMS's parents agreed.
Wishes of the represented person
The Board is required "as far as possible, to seek to ascertain the views and wishes of the proposed represented person as expressed, in whatever manner, at the time, or as gathered from the person's previous actions …"
The wishes of the represented person were not known with regard to any of these matters. Given that RSMS's parents have been described as highly supportive of their daughter and there appear to be no issues of conflict, or other issues, that indicate disharmony, the Tribunal assumes that RSMS is content with the status quo and trusts her parents to do the right thing by her.
Findings
With regard to the applicant's concern about the status of her authority, and that of her husband, to give consent to medical treatment, the Tribunal finds that there is no need to make an order. The parents are able to give consent under s 119 and have been doing so successfully. There is no need for the Tribunal to make a determination about the question whether or not Mr or Mrs S would have equal status under s 119(c) and s 119(d) in the face of a prevailing less restrictive alternative to the making of a guardianship order. In other words, if there is currently no problem about RSMS's parents giving consent for her medical treatment, there is no need to make an order and there is no need for a determination of the question about whom of the parents may rank first. It should be noted that under s 119 a treating physician may give urgent treatment without consent, where such treatment is required to save the life of the person presenting with the condition or to prevent serious damage to the health of that person, or to prevent that person from suffering or from continuing to suffer significant pain or distress.
In other words, whether or not one of the parents would take a higher position in the hierarchy that s 119 provides, is academic only. What is important is that there are no barriers that prevent any medical consent giving. The status quo is therefore a viable less restrictive alternative and the Tribunal may not, under s 4(2)(c) make an order under such circumstances.
With regard to the parents' authority to sign forms on behalf of their daughter, no present difficulties with doing so were drawn to the Tribunal's attention. In absence of any such evidence the tribunal cannot make an order. There is a strong possibility that some applications could be made, and forms signed, by the plenary administrator, should the parents be denied such authority.
With regard to an authority to make decisions about RSMS's accommodation, the Tribunal found that there were currently no decisions to be made. Therefore the Tribunal cannot make an order.
With regard to legal representation, such representation would be about matters relating to RSMS's estate. As such that is not a guardianship matter and can probably be dealt with under the existing court order, which established the Trust under the management of the Public Trustee.
In all these circumstances all parties agreed that there appeared to be no need for a guardianship order. The Tribunal, therefore, dismissed this application.
I certify that this and the preceding [31] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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DR E LEIPOLDT, SENIOR SESSIONAL MEMBER
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