Re: TJC

[2012] WASAT 111

RE: TJC [2012] WASAT 111

Last Update :29/05/2012

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2012] WASAT 111
Published:
Act:	GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
Case No:	GAA:187/2012	Heard:	DETERMINED ON THE DOCUMENTS
Coram:	MS S GILLETT (MEMBER)	Delivered:	25/05/2012
No Pages:	10	Judgment Part:	1 of 1
Result:	Application dismissed
Category:	B

Parties & Catchwords
Summary


Judgment

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : HUMAN RIGHTS ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : RE: TJC [2012] WASAT 111 MEMBER : MS S GILLETT (MEMBER) HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 25 MAY 2012 FILE NO/S : GAA 187 of 2012 BETWEEN : VJ

Applicant

AND

TJC
Represented Person

Catchwords:

Guardianship - Application for leave to apply for review - Whether there has been any change in circumstance or any other reason to hold review of order - Continuing family conflict - Application for leave dismissed

Legislation:

Guardianship and Administration Act 1990 (WA), s 87, s 87(1)
State Administrative Tribunal Act 2004 (WA), s 77

(Page 2)

Result:

Application dismissed

Category: B

Representation:

Counsel:

Applicant : N/A
Represented Person : N/A

Solicitors:

Applicant : N/A
Represented Person : N/A

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

G v K (2007) WASC 319
TC [2006] WASAT 369
TJC [2007] WASAT 105
TJC [2009] WASAT 130

(Page 3)

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

1 The Tribunal dismissed an application for leave to apply for review of a guardianship order concerning a young man who had suffered a serious brain injury at birth. The order appointed the Public Advocate limited guardian to make decisions on his behalf concerning where he should live, the services he required, and contact between family members; and appointed his mother limited guardian to make treatment decisions. The application for leave was made by the paternal aunt of the young man and sought clarification in respect to the decision­making authority of the respective guardians, raised concerns about communication and provision of information between the parties concerning the young man, and sought to vary the order to enable the young man's father to consent on his behalf to medical and dental treatment whilst in his care.

2 The existing orders were made following protracted proceedings for which the young man was appointed a litigation guardian to instruct a separate legal representative. An independent assessment by a clinical psychologist was also ordered in the context of long-standing conflict between the parents of the young man and between his mother and paternal grandmother as to where he should live and the arrangements for his care.

3 The issues raised in the application seeking leave to apply for review did not disclose any significant change in circumstance or any other reason for the grant of leave. Having considered the application, a report from the Public Advocate and other information, the Tribunal determined that there had been no material change in the young man's circumstances or any other reason which supported the grant of leave, and so dismissed the application.

Reasons of the Tribunal

4 These reasons relate to the determination of the Tribunal to dismiss an application for leave to apply for review of a guardianship order dated 8 July 2009 in respect to TJC (represented person) by which the Public Advocate and TJC's mother were each appointed limited guardian with separate functions. The application for leave was determined on 18 May 2012 and these written reasons are produced pursuant to s 77 of the State Administrative Tribunal Act 2004 (WA).

(Page 4)

Legislation

5 Section 87 of the Guardianship and Administration Act 1990 (WA) (GA Act) provides for leave to apply for review of an order made by the Tribunal:

(1) Any person may request the State Administrative Tribunal for leave to apply for the review of a guardianship order or an administration order.

…

(5) The State Administrative Tribunal may ­

(a) refuse the request; or

(b) if it is satisfied that because of a change of circumstances or for any other reason a review should be held, grant, either unconditionally or subject to any condition, leave to the person to apply for the review.

History of orders

6 The applicant seeks leave to apply for review of a guardianship order dated 8 July 2009 which appointed the Public Advocate as limited guardian of the represented person with the functions to decide where he is to live, whether permanently or temporarily, to decide with whom he is to live, to determine the services he requires and to determine what contact, if any, he should have with others and the extent of that contact; and which appointed the mother of the represented person limited guardian, to consent to any treatment or health care. The orders are made subject to statutory review in July 2014.

7 The history of proceedings under the GA Act in respect of TJC has been protracted and has occurred in the context of significant ongoing conflict between family members. Orders were first made in March 2005 when Perpetual Trustees was appointed plenary administrator for TJC's estate following settlement of his claim for compensation for injuries he suffered at birth.

8 The Public Trustee sought review of the administration order as the examination of accounts submitted by the administrator had revealed that the estate had been charged fees that were not consistent with the order made for remuneration of the administrator. In September 2006, a three member panel of the Tribunal reappointed Perpetual Trustees plenary administrator, ordered that Perpetual Trustees was to be

(Page 5)

remunerated, and reserved the determination as to the rate of remuneration. The Tribunal made orders and delivered reasons in respect to remuneration in December 2006: see TC [2006] WASAT 369.

9 In 2006, cross­applications for guardianship were made by both TJC's mother and father, each proposing themselves as guardian; his paternal grandmother also proposed herself as guardian. These applications were heard by the Tribunal over four days. On 26 February 2007, the Tribunal made orders appointing TJC's mother his limited guardian to decide where he was to live, with whom he was to live, and to consent to medical treatment and services on his behalf; and appointed the Public Advocate, TJC's limited guardian to determine the contact he should have with his family in New South Wales, including his father and grandmother: see TJC [2007] WASAT 105.

10 On appeal by TJC's paternal grandmother, the Supreme Court found that the Tribunal had erred by failing to discharge its obligation to ascertain TJC's wishes. On 21 December 2007, the Supreme Court set aside the Tribunal's orders and remitted the matter for rehearing. It ordered the Tribunal's orders remain in effect pending the rehearing: see G v K [2007] WASC 319.

11 On hearing the remitted matter, the Tribunal, comprising a differently constituted three member panel, appointed the Public Advocate as litigation guardian for TJC and directed her to instruct a separate legal representative for him, and ordered an independent assessment by a clinical psychologist. The Tribunal further ordered TJC's administrator to pay for his separate legal representation and for the assessment and report of a clinical psychologist from his estate.

12 In hearings conducted over three days in February 2009, the Tribunal heard oral evidence from TJC's mother, father and grandmother, in addition to the clinical psychologist, a representative of the Public Advocate and TJC's separate legal representative. The Tribunal further considered the written report of the clinical psychologist who undertook an assessment under terms of reference ordered by the Tribunal following comment on the draft terms of reference by all parties. Extensive written submissions were lodged with the Tribunal throughout the proceedings. The Tribunal found, and it was common ground, that TJC was unable to make decisions for himself about his health, safety and wellbeing, and that he needed someone with lawful authority to make a range of decisions on his behalf, in particular, about where and with whom he should live, what services he needs, what medical and dental

(Page 6)

treatment he requires and about contact with his family in Western Australia and New South Wales. The Tribunal accepted the evidence of the clinical psychologist that TJC's capacity to express his wishes in a meaningful way is limited and that he is not able to determine what is in his own best interests.

13 In light of the continuing conflict between the parties, the Tribunal appointed the Public Advocate limited guardian to make decisions on TJC's behalf concerning where he should live, the services he required, and to make decisions concerning contact between family members; and appointed TJC's mother limited guardian to consent to medical and dental treatment. Because of the intractable nature of the family conflict, the order was made for the maximum period of five years. The reasons for decision made on 8 July 2009 were published by the Tribunal: see TJC [2009] WASAT 130.

The application for leave to apply for review

14 The current application under s 87(1) of the GA Act was received by the Tribunal on 19 January 2012 and sought to have the guardianship order reviewed on 3 February 2012 when the review of the administration order was listed for hearing. The reasons given for making the application and the orders sought are as follows:

15 In respect to contact:

We are requesting orders for formalised guidelines which will allow [TJC] to have unimpeded contact with his paternal family. We feel [TJC's] relationship with his paternal family is currently disadvantaged because telephone communication continues to be unreliable at his place of residence in WA.

16 In respect to services:

We are specifically requesting clarification regarding 'services', as we feel that there is currently confusion with regard to health and medical services. The Public Advocate has advised this area is for [TJC's mother] and has referred us to communicate with her with issues pertaining to [TJC's] health. This is unrealistic and an unworkable situation. We therefore request clarification, and anticipate the Public Advocate will be responsible for all medical health and educational services pertaining to [TJC].

17 In respect to consent for any treatment or healthcare: (Page 7)

We would request that [TJC's father] also have the same function as [TJC's mother], to consent to any treatment or healthcare whilst [TJC] is under his care.

18 The application for leave sought further orders from the Tribunal in respect to information sharing on a monthly basis regarding TJC's wellbeing and services delivered, and sought a further order as to burial arrangements in the event of TJC's death.

19 Following receipt of the application, the Tribunal wrote to the Public Advocate on 6 February 2012 seeking a written report as to the issues and concerns raised in the applicant's letter of 15 January 2012, which formed part of the application and, in particular:

• the Public Advocate's view as to whether [the applicant] has been provided with further clarification as to the operation of the current guardianship order with regard to the services function in the order appointing the Public Advocate and the appointment of [TJC's mother] to make treatment decisions;

• the applicant's concerns about the difficulty she states exist in respect to communication with [TJC's mother] about [TJC's] medical and health matters;

• the present arrangements in place as to how any health care issues are managed when they arise during periods that [TJC] is in his father's care and whether such arrangements operate in [TJC's] best interests; and

• the present arrangements in respect to information sharing for family members in New South Wales in regard to [TJC's] wellbeing.

20 On 5 March 2012, the Public Advocate responded with a report addressing the issues raised in the applicant's letter of 15 January 2012 and the current circumstances of the represented person. This report stated, in part:

… The delegated guardian has liaised with [the applicant] via written correspondence and by telephone on a number of occasions since July 2009 in respect to the functions to which both the Public Advocate and [TJC's mother] were appointed limited guardians. The Public Advocate accepts [the applicant] acts as spokesperson for [TJC's] extended family in New South Wales and Queensland and that as such expects she would forward any information on to other family members.

In regard to the difficulties [the applicant] may have in contacting [TJC's mother] to discuss treatment and health matters with her, the guardian has also found it difficult to contact [TJC's mother] on occasion.

(Page 8)

For her part [TJC's mother] advises she is willing to speak to [the applicant] but has not received any phone calls from her. Further [TJC's mother] advises that [TJC's] father has her phone number and [the applicant] can obtain it from him if she wants to. [TJC's mother] advises her son is in regular contact via Skype with his grandmother and phone contact with his father.

In response to treatment and health care [TJC] received whilst he is in his father's care the guardian is aware this is a frequently occurring issue that involves concern about his dentition and seizures. The guardian is aware of complaints from [TJC's] father and grandmother about the apparent lack of treatment. It is noted that in August 2009 whilst in his father's care in New South Wales, [TJC] had a tooth removed without prior consent being sought from his mother in her role as guardian to consent to treatment. The guardian has raised with [TJC's mother] the concern expressed by [TJC's father and grandmother] about her availability to consent to treatment whilst her son is in New South Wales. [TJC's mother] advises the family in New South Wales have not contacted her; she also advises her son's medications for his neurological condition are reviewed by his GP and neurologist. [TJC's mother] suggests he appears more prone to seizures when he is excited and/or tired so travelling to New South Wales may trigger these seizures.

The guardian is of the view that the ongoing tensions in the relationship between the family members continues to be a significant factor which impacts on [TJC's] life. It is clear to the delegated guardian that [TJC] is very attached to all of his family members and this ongoing tension between them is difficult for him to manage. Regrettably this tension tends to detract from recognising the considerable progress towards being independent that [TJC] has achieved in the past couple of years. The guardian has consistently clarified with [the applicant] and others the distinctions in respective roles and functions of the Public Advocate and [TJC's mother] as limited guardians. However it appears that there remains some confusion about the distinction between the functions of 'treatment and health care', and 'services' and what these functions entail.

Should leave to apply for a review be granted?

21 The issues raised in this application reflect the continuing tension and conflict that exist between the family members of TJC.

22 In respect to any issues concerning TJC's contact with his paternal family, the existing order provides for the Public Advocate to determine matters relating to TJC's contact with others, including whether there is a need for 'formalised guidelines' as sought.

23 The applicant raises concern that there is confusion in respect to the Public Advocate's authority as limited guardian to decide which services TJC requires and TJC's mother’s authority as limited guardian to make

(Page 9)

treatment decisions, and seeks that the Tribunal review the order to provide 'clarification'. The Public Advocate submits that clarification as to the respective roles and functions of the Public Advocate and TJC's mother as limited guardians has been ongoing, however, acknowledges that some confusion remains as to the distinction between the functions of 'treatment and health care' and 'services'. The applicant has been invited to contact either guardian for clarification.

24 TJC's best interests and needs in respect to who should be formally appointed to make personal and lifestyle decisions on his behalf was comprehensively canvassed and considered at the time the current guardianship orders were made. There is no evidence of any significant change in circumstances which would justify the granting of leave for review of the guardianship order. Further, it is evident to the Tribunal that due to the protracted nature of previous proceedings concerning guardianship matters and the identified need for separate legal representation for TJC, such proceedings incur significant costs which must be met from TJC’s estate. It is acknowledged that, due to the ongoing tension in the relationship between TJC's family members, there exists continuing issues in respect to communication and information sharing. However, this was an issue that was evident and considered by the Tribunal at the time the existing orders were made. The additional order sought by the applicant in respect to burial arrangements in the event of TJC's death is outside the scope of the GA Act and consequently, is not a reason to grant leave to review the order.

Conclusion

25 The Tribunal is mindful that there are other processes by which the applicant may seek to resolve or clarify concerns and issues. Given the absence of any significant change in circumstances or any information which persuades me that there is any other reason for the grant of leave, the application for leave is dismissed.

Order

1. The application for leave is dismissed.

I certify that this and the preceding [25] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________

MS S GILLETT, MEMBER

(Page 10)