Re VAH;
[2006] WASAT 274
•8 SEPTEMBER 2006
RE VAH; EX PARTE DBH [2006] WASAT 274
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2006] WASAT 274 | |
| GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) | |||
| Case No: | GAA:1605/2006 | DETERMINED ON THE DOCUMENTS | |
| Coram: | MS F CHILD (MEMBER) | 8/09/06 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | DBH |
Catchwords: | Guardianship and administration Access to medical reports Represented person deceased Access not for the purposes of Guardianship and Administration Act 1990 Application dismissed |
Legislation: | Guardianship and Administration Act 1990 (WA), s 43(1)(b), s 43(1)(c), s 64(1)(a), s 64(1)(b), s 107(1)(b), s 112(4), s 119 |
Case References: | MB [2004] WAGAB 25 Re MM (2001) 28 SR (WA) 320 Nil |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : HUMAN RIGHTS ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : RE VAH; EX PARTE DBH [2006] WASAT 274 MEMBER : MS F CHILD (MEMBER) HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 8 SEPTEMBER 2006 FILE NO/S : GAA 1605 of 2006
- GAA 110 of 2005
DBH
Applicant
Catchwords:
Guardianship and administration Access to medical reports Represented person deceased Access not for the purposes of Guardianship and Administration Act 1990 Application dismissed
Legislation:
Guardianship and Administration Act 1990 (WA), s 43(1)(b), s 43(1)(c), s 64(1)(a), s 64(1)(b), s 107(1)(b), s 112(4), s 119
Result:
Application dismissed
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Category: B
Representation:
Counsel:
Applicant : Mr KJ Edwards
Solicitors:
Applicant : Warren Syminton Ralph
Case(s) referred to in decision(s):
MB [2004] WAGAB 25
Re MM (2001) 28 SR (WA) 320
Case(s) also cited:
Nil
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Summary of Tribunal's Decision
1 These reasons relate to a determination by the Tribunal that an application for inspection and access to documents be dismissed.
2 The application, by the daughter and former administrator and guardian of VAH (the represented person), was made for release of medical evidence submitted for hearing of the applications in respect of the represented person for guardianship and administration heard by the Tribunal in 2005.
3 The application for release of the documents followed the death of the represented person and was for the stated purpose of determining which of the wills of the represented person was her last valid will.
4 The application was refused because the purpose for which release of the medical evidence is 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.
Background
5 An application for release of documents held on a file of the State Administrative Tribunal was made on 21 August 2006, pursuant to s 112(4) of the Guardianship and Administration Act 1990 (WA) (the GA Act).
6 The file contains documents relating to applications made for the appointment of a guardian and an administrator for VAH made under the GA Act in 2005.
7 The applicant is the daughter of VAH, who was appointed the plenary administrator of the estate of VAH and her limited guardian by orders of the Tribunal dated 8 April 2005.
8 VAH died on 7 May 2006, according to the application for inspection.
9 For the purposes of these reasons the name of the applicant, the represented person and other parties will be anonymised consistent with the practice of the Tribunal in respect of applications made under the GA Act to avoid identification of the represented person.
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10 The applications for appointment of an administrator and a guardian for VAH were brought to the Tribunal in the context of considerable conflict between the applicant and her brother, the son of VAH and the donee of her enduring power of attorney.
11 The orders made by the Tribunal in respect of VAH included the revocation of the enduring power of attorney executed by her on 26 October 2004. The appointment of an administrator was made and the enduring power of attorney revoked as inconsistent with that order and as the donee had not met his obligations under the GA Act as donee. His own evidence before the Tribunal was that he had transferred funds of VAH into his own name, had made an undocumented loan to himself from her funds and had redeemed an investment of VAH without further investment with a loss of interest income to her as a result. Further evidence of the donee was that he had failed to maintain records and account of his dealings and transactions made under the power in breach of s 107(1)(b) of the GA Act.
12 The applicant was appointed limited guardian to consent to medical treatment of VAH. The Tribunal found that there was no less restrictive alternative to the making of a guardianship order as the operation of s 119 of the GA Act to provide a person who could give consent for medical treatment would not operate effectively for VAH. The son of VAH was higher in the hierarchy of persons who could give consent, than the applicant who had been VAH's primary carer, had maintained a closer relationship with her, and knew her medical treatment and health care requirements and on this basis it was considered she was better placed to act in this regard.
13 Medical and other professional reports were provided to the Tribunal for the purposes of determining whether VAH was a person for whom a guardianship and administration order could be made (s 43(1)(b) and s 64 (1)(a) of the GA Act).
14 Other documents submitted with or in response to the applications included; an enduring power of attorney, a copy of an unsigned will submitted by the donee, correspondence from the applicant and from the donee and in the course of the hearing a sealed copy of a will was handed up to the Tribunal.
15 Some of these documents were relevant to the question of whether VAH was in need of a guardian (s 43(1)(c) and administrator (s 64(1)(b) and who was suitable for appointment.
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Current application
16 The application for inspection under s 112(4) is made in the following terms. The order sought is the "release of medical evidence submitted to the SAT hearing on 8 April 2005. Access to this evidence is required to determine which will of VAH is her last legal will".
Section 112(4) of the Guardianship and Administration Act 1990
17 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."
18 And later at [35] the Full Board restated the policy underpinnings of the provision:
"As observed by the Board on an earlier occasion, the provision 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."
19 The Full Board went on to say:
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- "We agree with the observation of the Board in Re MM (2001) 28 SR (WA) 320 at 332, that s 112(4) provides the Board with a broad discretion on the application of any person who 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 the 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 exercise 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 the 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 De Hass 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."
20 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).
21 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
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- 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 the request for access under s 112(4) will need to be cogent and be justified on a 'need to know' basis."
22 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".
23 Nonetheless the Full Board confirmed the requirement in each application under s 112(4) be assessed and determined application by application.
24 In this case the applicant, the daughter of VAH, seeks release of medical evidence submitted to the Tribunal for the purposes of the hearing of her applications for guardianship and administration of her mother. The reason advanced in favour of release is that medical evidence is required to determine which of the wills of VAH is her last legal will.
25 The applicant in her reasons for making application discloses that her brother is attempting to have a will of VAH dated October 2004 deemed to be her last will while she believes an earlier will of May 2003 is the valid will.
26 It is not apparent whether applications have been made for probate of either will however it appears likely that the dispute between the children of VAH, may ultimately be dealt with by the Supreme Court.
27 The Court may consider in the appropriate case to ask that a file of the Tribunal be made available to the Court. It will then be a matter for the Court to determine the relevance of any material held on the file of the Tribunal to any matter before the Court.
28 Frequently there may be material held on a file of the Tribunal containing documents of 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.
29 To allow release of or access to the documents 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
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- the processes of the Board (now the Tribunal) in dealing with applications for the appointment of guardians and administrators.
30 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 to enable the Tribunal to undertake its functions under the GA Act.
31 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 in the way sought by the applicant then those who produce reports or put material before the Tribunal at hearings may be hesitant to do so. Therefore the application for release of the medical reports held on the file of the Tribunal is dismissed.
Orders
1. The application made under s 112(4) of the Guardianship and Administration Act 1990 (WA) is dismissed.
2. The Executive Officer of the State Administrative Tribunal is directed to write to the Principal Registrar of the Supreme Court to alert him to the existence of a file held by the Tribunal which may be relevant to matters before the Court.
I certify that this and the preceding [31] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS F CHILD, MEMBER
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