Re VH; - [2012] WASAT 86

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: HUMAN RIGHTS

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION: RE VH; EX PARTE VH [2012] WASAT 86

MEMBER: MS F CHILD (MEMBER)

HEARD: 31 JANUARY 2012

DELIVERED : 26 APRIL 2012

FILE NO/S: GAA 3360 of 2011

EX PARTE
VH
Represented person

Catchwords:

Guardianship and administration - Review of guardianship order - Represented person intellectually disabled - Continuing need for appointment of guardian - Question of suitability for reappointment as guardian following finding by Criminal Injuries Assessor that represented person had 'probably' been sexually abused - Appointment of Public Advocate

Legislation:

Criminal Injuries Compensation Act 2003 (WA), s 17(2)
Guardianship and Administration Act 1990 (WA), s 4, s 43(1), s 43(1)(b), s 44, s 44(1)(b), s 44(2), s 44(5), s 110ZD
State Administrative Tribunal Act 2004 (WA), s 35(1), s 77

Result:

Guardianship order revoked and Public Advocate appointed on review

Category: B

Representation:

Counsel:

Represented person : Self-represented

Solicitors:

Represented person : Self-represented

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

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

In 2010 the Tribunal appointed the father of a young intellectually disabled woman as her guardian to make medical treatment decisions on her behalf. Prior to the father's appointment the Public Advocate had been the appointed guardian. The father's appointment was confirmed on review of the order in January 2011 and the order set for review in January 2012.
On review of the order, the Tribunal was advised that, in determining an application for criminal injuries compensation made on behalf of the young woman, the Criminal Injuries Assessor had amended the application to include offences said to have been committed against her, by her stepfather and father, in and prior to 2004, which had not been the subject of criminal charges. The Criminal Injuries Assessor subsequently made a finding, in determining her application for compensation that the young woman's father had 'probably' sexually abused her prior to 2004. The Tribunal was later advised that the determination of the represented person's compensation claim was subject to an appeal to the District Court.
The Public Advocate argued that the father should be reappointed the guardian as, on the analysis conducted by her office of the material which had been before the Criminal Injuries Assessor, the finding made by the Assessor about the father should not have been reached.
Having considered the submissions of the Public Advocate and all of the material before it, including giving close consideration to the material from the files of the Department of Child Protection on which the decision of the Criminal Injuries Assessor was based, the Tribunal found that the arguments of the Public Advocate regarding the finding were persuasive.
However, although the Tribunal, on the available evidence, may have come to a different conclusion to the Criminal Injuries Assessor regarding the likelihood or not of the abuse by the father having occurred, it determined that, while such a finding had been made by the body empowered with the jurisdiction to make it, the Tribunal should recognise the finding as relevant in assessing the suitability of the father for appointment as a guardian of the represented person. The finding raised a potential conflict of interest in the father's appointment as guardian and he was, therefore, not suitable for appointment. Absent the finding of the Criminal Injuries Assessor, the Tribunal considered that a joint appointment of the Public Advocate with the father would have been in the best interests of the young woman, given the reported intellectual disability of the father, which became known in the course of the review.

The review

These reasons relate to a periodic review of a guardianship order dated 12 January 2011 by which SH, the father of the represented person, is appointed her limited guardian. The order was made due for periodic review in January 2012. Prior to the appointment of the represented person's father as guardian of the represented person, the Public Advocate had been appointed the limited guardian in January 2009 to consent to treatment and to act as next friend in the Children's Court in relation to care and protection proceedings for the child of the represented person, born in October 2008 and apprehended by the Department of Child Protection (DCP) at birth.
The represented person is also subject to an administration order that appoints the Public Trustee as the plenary administrator of her estate. That order is not due for review until January 2016.
The represented person lives with her father and paternal grandparents, and reportedly has contact with her partner once or twice a month.
Case management for the review of the guardianship order by the Tribunal included a referral to the Public Advocate on 24 October 2011 for investigation as to whether the existing guardianship arrangements were meeting the needs of the represented person.
Prior to the review hearing, a representative of the Public Advocate advised the Tribunal that the Public Trustee had been notified of an award of compensation for criminal injuries made in favour of the represented person. In a letter dated 5 December 2011, the Public Trustee alerted the Public Advocate to the findings made by the Criminal Injuries Assessor (Assessor), that the father of the represented person had been found by the Assessor to have 'probably' sexually abused the represented person prior to 2004. The decision of the Assessor refers to a review of DCP files in coming to that conclusion.
The Public Advocate sought an order from the Tribunal pursuant to s 35(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) for the production of documents held by the DCP which had been before the Assessor. That order was made and the hearing of the review adjourned to 31 January 2012.
Following receipt of the DCP files, the Public Advocate filed written submissions with the Tribunal for the review.
The represented person, her father and her partner, and a representative of the Public Advocate (Public Advocate) attended the hearing on 31 January 2012. Part of the hearing was conducted in the absence of the father and the partner of the represented person.
The decision on the review was reserved. The following reasons for the decision are provided pursuant to s 77 of the SAT Act.

Legislation

Section 43(1) of the Guardianship and Administration Act 1990 (WA) (GA Act) provides that, where the Tribunal is satisfied that a person:
…
(b)is -
(i)incapable of looking after his own health and safety;
(ii)unable to make reasonable judgments in respect of matters relating to his person; or
(iii)in need of oversight, care or control in the interests of his own health and safety or for the protection of others;
and
(c)is in need of a guardian,
the Tribunal may by order declare the person to be in need of a guardian.
Section 44 of the GA Act sets out who may be appointed as a guardian.
Pursuant to s 44 of the GA Act to appoint a guardian, the Tribunal must be satisfied that any individual appointed solely or jointly:
…
(a)will act in the best interests of the person in respect of whom the application is made;
(b)is not in a position where his interests conflict or may conflict with the interests of that person; and
(c)is otherwise suitable to act as the guardian of that person.
(2)For the purposes of subsection (1)(c) the State Administrative Tribunal shall take into account as far as is possible -
(a)the desirability of preserving existing relationships within the family of the person in respect of whom the application is made;
(b)the compatibility of the proposed appointee with that person and with the administrator (if any) of that person's estate;
(c)the wishes of the person in respect of whom the application is made; and
(d)whether the proposed appointee will be able to perform the functions vested in him.
…
The GA Act further provides at s 44(5) that:
Except where he is appointed to act jointly with another person or other persons, the State Administrative Tribunal shall not appoint the Public Advocate as a guardian unless there is no other person who is suitable and willing to act.
Section 4 of the GA Act establishes principles which must be observed by the Tribunal in any proceeding under the GA Act. The section provides:
…
(2)The primary concern of the State Administrative Tribunal shall be the best interests of any represented person …
(3)Every person shall be presumed to be capable of -
(a)looking after his own health and safety;
(b)making reasonable judgments in respect of matters relating to his person;
(c)managing his own affairs; and
(d)making reasonable judgments in respect of matters relating to his estate,
until the contrary is proved to the satisfaction of the State Administrative Tribunal.
(4)A guardianship or administration order shall not be made if the needs of the person in respect of whom an application for such an order is made could, in the opinion of the State Administrative Tribunal, be met by other means less restrictive of the person's freedom of decision and action.
(5)A plenary guardian shall not be appointed under section 43(1) or (2a) if the appointment of a limited guardian under that section would be sufficient, in the opinion of the State Administrative Tribunal, to meet the needs of the person in respect of whom the application is made.
(6)An order appointing a limited guardian or an administrator for a person shall be in terms that, in the opinion of the State Administrative Tribunal, impose the least restrictions possible in the circumstances on the person's freedom of decision and action.
(7)In considering any matter relating to a represented person or a person in respect of whom an application is made the State Administrative Tribunal shall, as far as possible, seek to ascertain the views and wishes of the person concerned as expressed, in whatever manner, at the time, or as gathered from the person's previous actions.

Issues for determination on review of the guardianship order

The issues for determination by the Tribunal on review of the guardianship order are:
•Is the represented person a person for whom a guardianship order may be made?
•Is the represented person in need of a guardian, or are less restrictive alternatives available to meet her needs?
•If she is in need of a guardian, who should be appointed in that role?
•What powers does the guardian need?

Is the represented person a person for whom a guardianship order may be made?

Although the represented person considers that she can make all her own decisions, the professional evidence before the Tribunal confirms she has an intellectual disability and impaired decisionmaking.
A report by Dr PP, psychologist, dated 13 September 2009, states that on testing of the represented person, she was found to be in 'the disabled range for intellectual function'. The report notes her '[f]ull scale IQ is 59' and that she 'would find it very difficult to problem solve and understand'. It is also reported that the represented person 'achieved a score of 60 for working memory; [which] is lower than 99.6% of the population'. The report notes that '[w]orking memory is a measure of both attention and ability to keep information active in the memory long enough to perform some cognitive operation with it'. The conclusion reached in the report is that it would be '[d]ifficult for [the represented person] to remember basic instructions for a period required to perform the task'.
A report from VS, from the Disability Services Commission (DSC), dated 10 November 2011, confirms that the represented person is registered with the DSC as having an intellectual disability. The report goes on to say that '[the represented person] clearly expresses her dislike of having her affairs managed through limited guardianship and the Public Trustee'. It notes that '[h]er vulnerability and transient lifestyle often leave her open to manipulation and exploitation'.
A recent report prepared by a consultant psychiatrist, Dr GL and dated 16 February 2011, for the purposes of the criminal injuries compensation claim notes:
… obviously cognitively impaired with an IQ which I would estimate would be at the borderline level. She did not have an apparent insight, nor did I think she had a capacity for realistic judgment.
In a report dated 4 November 2008 submitted with the original application for guardianship and administration orders made by TH, a social worker from the DCP, the represented person is noted as being 'registered with Disability Services Commission as a young child with a diagnosis of Global Developmental Delay and Moderate Intellectual Disability'. The report goes on to say '[the represented person] often uses expressions but she clearly does not know their meaning'.
The report notes the background as:
…
[The represented person] was placed under the care of her father [name deleted] by the Family Court at the age of three, following her parents['] divorce. … When [the represented person] turned sixteen she left home and since then has lived in various (and numerous) relationships … During this period of time [the represented person] was often exploited sexually, emotionally and financially and has been a victim of physical abuse.
… [The represented person] has alleged sexual, physical and financial exploitation on several occasions over the last five years and has had contact with SARC and local medical centres. [The represented person] has difficulty at times recalling names, dates and details and many of her allegations have failed to be substantiated because of this.
… [the represented person] has minimal protective behaviour skills and she has not attended the Feel Safe Program. [The represented person] has been assessed as very vulnerable and open to exploitation. [The represented person] has been offered life skills and protective skills training, [the represented person] readily agrees to participate when offered services, but frequently does not attend, or is unable to be located due to her itinerant lifestyle.
…
Based on the material referred to the Tribunal, it finds that the represented person remains a person for whom a guardianship order may be made and that all three paragraphs of s 43(1)(b) of the GA Act apply to her.

Is the represented person in need of a guardian or are less restrictive alternatives available to meet her needs?

The professional evidence reports that the represented person's judgment is impaired. The Tribunal finds that she is not able to make reasonable judgments about her person, including the making of treatment decisions. Someone else is required to assist her and make these decisions on her behalf. The most recent treatment decisions made by the guardian on behalf of the represented person include extensive dental procedures which involved surgery. It is likely that, in the future, the represented person will continue to need regular medical and dental procedures for which consent will be required. The represented person is in need of a guardian to make treatment decisions on her behalf, as the less restrictive alternative of a consent under s 110ZD of the GA Act, by which her nearest relative can consent, is not appropriate because of the possible ambiguity as to whether her partner may fulfil the criteria as her nearest relative. The Tribunal finds that he is not suitable to make treatment decisions for the represented person due to his significant criminal record.
The material before the Tribunal confirms the extreme vulnerability of the represented person and, because of this, in addition to the need for decisions regarding treatment, she is in need of a guardian to advocate for her interests regarding services, which may include protective behaviours training.
The revocation of the appointment of the father as guardian, dealt with below, raises the potential need for wider authority to be vested in the Public Advocate as the guardian. Because of the implications which arose from the Assessor's finding regarding the father, who is the primary carer of the represented person, a limited order may be insufficient to meet her needs and the Public Advocate will be vested with plenary powers.

Appointment of a guardian

Who should be appointed - Whether the father of the represented person is suitable to be appointed as the guardian

The real question raised in the review is whether the father of the represented person is suitable for appointment as her guardian, given the finding made by the Assessor. The finding also raises the issue of whether there is a potential conflict between the represented person and her father (s 44(1)(b) of the GA Act).

The findings of the Assessor

Material before the Tribunal shows that an application was filed for criminal injuries compensation on behalf of the represented person by a solicitor from her local community legal service. The applicant is noted as the Public Trustee in the determination by the Assessor. The application seeks compensation in respect of sexual offences committed against the represented person in 2008 by her maternal uncle, for which he was later convicted in the District Court in June 2010.
In a letter from the Assessor to the represented person's solicitor, dated 22 November 2011, it is noted that:
…
After review of the DCP files the Assessor has amended the application to include an application under section 17. …
This is noted in the determination of the Assessor as s 17(2) of the Criminal Injuries Compensation Act 2003 (WA), where an order is made:
… in respect of injuries and losses suffered by [the represented person] between 1989 and 31 October 2004 … as a consequence of alleged offences and no person has been charged with the commission of those alleged offences.
…
The letter states in part:
… The Assessor was satisfied that the applicant has been subject to sexual abuse at the hands of her step father in 2004 and probably her father sometime earlier. It also appears that the applicant was able to relate to DCP officers some sexual relationships with school friends prior to her adult-hood. On balance it appears that the applicant was taken advantage of on several occasions and whilst she may have 'consented' to the sexual advances the Assessor considers that the applicant's mental impairment vitiated that apparent consent. …

The DCP files

Following notification by the Public Trustee of the Assessor's findings, the Public Advocate sought access to the Department for Community Development (DCD) (now DCP) files, which had been before the Assessor. The material received by the Public Advocate, and later submitted to the Tribunal, includes 60 pages of various case notes, reports, and emails between then DCD, DSC and the Police. It includes DCD log entries, internal DCD emails, a Child Concern Report dated 26 November 2011 from a women's refuge worker to DCD, a Child Maltreatment Allegation Investigation Outcome Report dated 16 November 2004, and a DCD Case Closure Summary dated 3 December 2004.
The documents refer to the investigation by DCD of disclosure of sexual intercourse between the represented person and her stepfather in October 2004. The disclosure was reported as initially made by the mother of the represented person to a DCD caseworker and reportedly confirmed by the represented person at a joint interview with her mother and a caseworker, and later, the stepfather is said to have made admissions of the conduct to DCD caseworkers. It is noted in the material that both the mother and the stepfather are also registered with DSC and have intellectual disabilities.

In the report of the interview with the caseworker, the mother states that she had seen the represented person and the stepfather having sex. The report goes on to say:
…
•[Mother] said that [father] sexually abused 4 different kids - twice with [the represented person] when she was 14 and 15 years old. …
•[Mother] said that [the represented person] was raped in Melbourne, Sydney, Queensland and Mandurah.
The report states that the represented person was present during this conversation and had said she 'had been raped in Queensland, Sydney, Melbourne and WA indicating it was by her father'.
When directly questioned when alone by a caseworker about sex, the represented person is reported to have said she had had sex with '[m]y real dad [name deleted]. He had sex with me in Queensland, Sydney and Melbourne'. Later, in the same interview, she was asked if she had said 'no' (to sex), and is reported to have said '[y]eah I say no to my real Dad and someone else'. The represented person's understanding of 'rape' is reported as 'wanted to try it on with me'. Earlier she is reported as saying '… Don't like my real Dad. 7 years I been living with him and he beats me up with a belt…'. In the same interview, it is recorded that the represented person, referring to her stepfather, said:
I don't want Dad to hurt Mum.
Mum's already been beaten up by Dad.
I hope I won't get hurt either.
She later said '[m]y real Dad in [location deleted] who I'm scared of. I won't go back to him'. When asked '[w]hy not?', she responded '[b]ecause he belted me up with a belt and chucked a potato at me'. In another meeting between DCD caseworkers and the represented person and her mother, the represented person is reported to have said that her real dad has bashed her leaving bruising on her legs and stomach.
In a Child Concern Report dated 26 November 2011 from a women's refuge worker to DCD, the following is reported:
…
[The represented person] also spoke to me about her biological father who lives in [location deleted]. She told me she 'loves him very much', and in the same sentence informed me that he 'hit her with a car door and burnt her with a cigarette'. …
A hand written notation on the report dated 3 December 2004 by the DCD caseworker is that the '[c]oncerns [had been] addressed in the CMA investigation'.
Doubt is raised about the credibility of the allegations made against the father in the report by DCD of the joint interview with the represented person and her mother following the initial disclosure. For example, the mother is noted not to be able to name the children who she said had been sexually abused by the father, and the report notes that the represented person's (later) statement was 'almost identical to that of [the mother]'. It is also reported that the represented person and her mother 'were constantly leaving the room and changing the discussion points', and that the mother was 'whispering in [the represented person's] ear'. The statements made are described as 'inconsistent'. It is also recorded that when asked if the represented person had told anyone about the alleged incidents regarding her father, she replied, 'I told my Mum and my friend and my Mum and my step dad and my Uncle [name deleted]'.
The Public Advocate's report submits that:
… Had this been true, one suspects that one of those people would have reported it to the police, but it is also the case that [the represented person]'s stepfather was not around at the time these alleged interstate incidents took place, nor was her mother… .
In fact, it is reported that the represented person had only met her stepfather a few weeks prior. Following the disclosures, the represented person was removed from her mother and stepfather's care. The represented person's father was assisted financially by DCD to travel to the country town and collect the represented person from the emergency accommodation where she had been placed. She is then reported to have willingly returned to live with her father in the Perth area a few days later.
The allegation of sexual abuse against the father is referred to in a later document. It is stated:
…
The other area we [DCD] need to pursue is the disclosure from [the represented person] that her biological father has been sexually abusing her.
This will now need to be made a [Child Maltreatment Allegation] and investigated accordingly.
…
The father was later interviewed by DCD officers after the return of the represented person to his care. It is said he acknowledged that he knew of the allegations made by the represented person, but denied sexual abuse of the represented person. The father related previous incidents of sexual assault on the represented person by other persons when she was in his care at a party and on a train. It was noted '… given [the represented person]'s intellectual disability it is a concern that she was put at risk in the first place'. In response to the 'potato incident', he said he threw the potato on the table and it bounced off and hit her in the arm. It is reported that he denied hitting her with a belt, but had said he had 'smacked' her in the past. It does not appear that the allegations reported by the women's refuge worker were put to him, as that report was made after the interview took place.
In the Child Maltreatment Allegation Investigation Outcome Report, it is reported that the mother and the stepfather had wanted to have a child but could not (as the mother had reportedly had a tubal ligation). The report suggests that they had had a 'preconceived plan' and had travelled to where the represented person was living (with her father and grandparents), and had '… established a relationship with [the represented person], turned her against her family …' and had 'talked her into' leaving with them with the intention of the represented person becoming pregnant with the stepfather's child. This suggestion is consistent with the reported statements made by the mother and the represented person to the original caseworker about a potential pregnancy. In respect of the allegations made by the represented person against the father, they are said, in the report, to have been 'fuelled' by the mother and the stepfather. The mother is reported to be antagonistic to the father. The report concludes, in respect of the allegations made about the father, that '[t]here is no substance to these allegations …'. The report determines that the maltreatment of the represented person by her mother and stepfather is substantiated.
In a DCD file note, the DSC District Manager is reported to believe '[the represented person]'s father is appropriate and a suitable carer for [the represented person] …'. It is noted 'DSC feel [mother] is trying to make false allegation[s] against [father] and twisting the truth, to make [father] look bad'. The report refers to the represented person's father as 'intellectually impaired but has a higher IQ than [the mother]'. The DSC officer 'feels that [the represented person] is safe with her father and he has been caring for the last 17 years'.
… [Location deleted] DCD and DSC has had long involvement with this family and spoke to [father] regarding these allegations. [Father] has tried to protect [the represented person] by refusing to let her hang out on the streets and knowing her whereabouts at all times. … [Father] wanted [the represented person] returned to his care and commenced the implementation of a recovery order through the Family Court. [Location deleted] DCD and DSC supported this.
For the review of the guardianship order, a report from the DSC Local Area Coordinator (LAC), dated 10 November 2011, was before the Tribunal.
Noting that the represented person's father is her guardian, the LAC states:
… I do not see the need for this situation to change, and as such would recommend that both Guardianship and Administration orders be renewed. I would recommend that the current situation remains, with [the represented person]'s father [name deleted] and Public Trust fulfilling these roles.
The report also says that the represented person:
… is well supported by both her father and paternal grandparents, who have struggled for a long period to support her. …
There is current conflict between [the represented person] and her mother [name deleted] and mother's husband [name deleted]. [The represented person] has a current Violence Restraining Order against [the stepfather].

Hearing of 31 January 2012

At the review hearing, both the represented person and her father were asked about the finding made by the Assessor. In the absence of her father and her partner, the represented person was asked why she had received the Criminal Injuries Compensation payment and she replied, 'Because my uncle raped me'. When asked if anyone else in her family had raped her, she replied, 'No, only my stepdad has'. She said that this was when she was 14 years old, but correctly identified the country town where this occurred. When asked, '… Has anyone else in your family tried to have sex with you?', she replied, 'No'. When the findings of the Assessor were put to the represented person, she replied, 'I didn't know anything about that one' (T:3; 31.01.12). When the reported allegation made to DCD by the represented person and her mother was put to her, the represented person said 'Dad doesn't anything [sic] like that to me' (T:4; 31.01.12).
When the Assessor's findings were put to the father, he tried to correct the understanding by referring to the stepfather's sexual abuse of the represented person. When he was reminded that the Public Advocate's investigator had asked him recently about the allegation made about him, he said 'I said [to the investigator], "No, that was my ex's partner"' (T:10; 31.01.12).

The Public Advocate's submissions

In written submissions to the Tribunal, which include the internal report of the Community Referred Investigation initiated following the advice by the Public Trustee of the Assessor's findings, the Public Advocate sets out an analysis of the findings of the Assessor by reference to the material in the DCD files.
In summary, the Public Advocate's submission is that the finding of the Assessor in respect of the father 'cannot be supported' if based only on the material in the DCD files.
The Public Advocate submits that an investigation at the time by DCD concluded that the alleged rape of the represented person by her father had not occurred. It is argued that this conclusion was based on the knowledge from the longterm involvement the DCD and DSC officers had with the family, and the factual inconsistencies in the allegations made.
In respect of the DCD joint interview of the represented person and the mother, at which the allegation of rape by the father was made, the Public Advocate submits that the record shows that the mother was 'heavily influencing' the represented person. It is argued that the lack of documentation of any previous disclosure by the represented person and the similarity in the words used in making the allegation by both the mother, and later, the represented person, suggest collusion or coaching.
Based on the material in the DCD files, the Public Advocate's investigator states he is unable to conclude that the allegation made by the represented person about her father is reliable.
It is argued by the Public Advocate that those involved with the family at the time from both DCP and DCS were of the similar view that the father had always acted appropriately toward the represented person.
Attempts by the Public Advocate's investigator to clarify whether there was any additional information before the Assessor to support the finding regarding the father were unsuccessful prior to the hearing. However, following the hearing, the Tribunal received an additional report from the Office of the Public Advocate, reporting a discussion with the Assessor in which he is reported to have said that he 'relied solely on the comments made by [the represented person] in 2004' to make the finding.
The report of the Public Advocate refers to recent allegations by the represented person's partner that the represented person's father had been physically abusive towards her, with which the represented person had agreed. The report goes on to say 'when quizzed [the represented person] confirmed that [the partner] had told her to say this'.
The Public Advocate submits that the represented person's father is acting in the best interests of the represented person, has followed up dental care and has taken the represented person to medical appointments. It is submitted that there is no evidence that the represented person's father is neglecting the represented person's health. Interviews conducted with professionals currently involved in the represented person's life, including her solicitor and workers from DSC and DCP, suggest that the father is acting in the represented person's best interests, and all give 'positive feedback' about him.
In the report it is noted that the LAC confirmed to the investigator that the represented person occasionally makes 'opaque claims of her father's aggression, but when further questioned these issues turn out to be verbal clashes, mainly in relation to administration matters'. The LAC is reported to say that, if the represented person was being abused by either her father or her partner, her paternal grandparents would do something about it.
The Public Advocate acknowledges the reference to the represented person's father having an intellectual impairment in a report to the Tribunal, and states that he appears 'perfectly capable of making rational decisions in the best interests of his daughter …'. Further, the Public Advocate submits that the recent investigation conducted had not uncovered any information which suggests that the current order is not working in the best interests of the represented person. The Public Advocate submits that the represented person's father is the represented person's primary carer and has played that role for most of her life, that he is able to communicate with her, and that she is likely to be unwilling to work with the delegated guardian if the Public Advocate is appointed her guardian. The appointment of the Public Advocate is also not supported, as it would 'only place another layer of government intervention in [the represented person's] life …' and 'undermine [the represented person's father's] authority'.

Findings of the Tribunal

It appears from the material before the Tribunal, that the allegations made in 2004 to DCD by the represented person that her father had raped her were never referred to the Police for investigation, and the allegation made by the women's refuge worker was not put to the represented person's father. It is argued by the Public Advocate that the allegations made were influenced by the represented person's mother for the mother's own purposes, and were found not to have been substantiated following an investigation at the time. However, there was no formal Police investigation and it appears that the DCD internal investigation was incomplete. Additionally, it is noted that, while there was apparently a report by DCD to the Police of the disclosures made about the stepfather, and despite the admissions he had reportedly made to DCD officers, the corroboration of the events by the represented person's mother and the represented person, there was apparently no formal Police investigation of that incident either. It is not clear from the material before the Tribunal why this did not occur.
The professional evidence shows that the represented person has a cognitive impairment and a poor working memory. The represented person's impairment of memory has reportedly meant allegations she has made of sexual exploitation were unable to be substantiated. The material before the Tribunal also confirms that she is highly vulnerable and suggestible. This, again, may put into question the reliability of her statements. This is supported by the recent incident where she is reported to have agreed she made allegations about her father regarding physical abuse at the behest of her partner. The dependence of the represented person on others, and her inability to have allegations she has made substantiated, make the vulnerability of the represented person obvious. Such an inability undermines the reliability of any of the statements she makes in this regard; however, it reinforces the need for oversight.
The Tribunal does not accept the proposition that the appointment of the Public Advocate would put 'another layer of bureaucracy' in the life of the represented person and therefore should not be made. In fact, it appears to be the case that the represented person has very little involvement or engagement with services other than the Public Trustee. Her contact with DSC appears to be intermittent, and there appears to be little regular involvement with DCP regarding her son. No other services are referred to other than the community legal service whose staff assisted with the compensation claim.
It is understood that the represented person's strongly expressed wish is that no orders are in place for her. She particularly opposes the order appointing the Public Trustee as the administrator of her estate, but her reported continuing vulnerability to financial exploitation makes such an order essential. Equally, her lack of protective behaviours, her impaired memory and suggestibility, and the consequent vulnerability to sexual exploitation mean that she is in need of a guardian. Although it is likely to be a significant challenge, given her impairments, the need for protective behaviours training is an unmet need of the represented person.
The finding made by the Assessor is that the represented person's father 'probably' sexually abused her prior to 2004. Such a finding is of great significance to the Tribunal on review of the father's appointment as guardian of the represented person, since it goes without saying that a person who has been found to have, or is suspected of having, sexually abused the represented person, would not be suitable for appointment as her guardian.
The standard required in s 44(1)(b) of the GA Act is that there cannot be a potential conflict between a proposed guardian and the represented person.
The submissions by the Public Advocate are persuasive as to the likelihood or not of the father abusing the represented person, and the Tribunal may have arrived at a different conclusion to the Assessor. However, in the face of a finding of that nature by the body with the jurisdiction and responsibility to make such a finding, the Tribunal must take a cautious approach. Such an approach is consistent with the principles of the legislation, which makes the Tribunal's primary concern the represented person's best interests. The considerations in determining the suitability of the appointment of a guardian in s 44(2) of the GA Act - the desirability of preserving existing family relationships, the compatibility of the guardian with the represented person and the wishes of the represented person - must be subservient to that principle.
There is an additional consideration regarding the represented person's father's ability to perform the functions as guardian. The Tribunal acknowledges that the father of the represented person has arranged longdelayed dental work for the represented person and accepts the submission that he has acted in her best interests to arrange and take her to medical appointments. However, in the context that the father of the represented person is reported to have an intellectual disability himself, there must be a question as to whether he is able to perform the functions vested in him, which include the protection of the represented person from exploitation. His appreciation of this issue was questioned in the DCD investigation, following the allegations in 2004. Given the acknowledged need for the protection of the represented person from abuse and exploitation, this is a matter which requires some consideration.

The determination by the Assessor in respect of the represented person is now the subject of an appeal to the District Court lodged by the Public Trustee as the administrator of the represented person's estate. One of the appeal grounds is reported by the Public Advocate to be the amendment of the application without hearing from the represented person.
The Tribunal determines that, while the finding which supports (in part) the determination of the Assessor is in place, the represented person's father's appointment as guardian should be revoked and the Public Advocate appointed. The implications which flow from the finding of the Assessor regarding the father, who is the represented person's primary carer, means that the Public Advocate should be given plenary powers as the guardian. Whether the guardian decides to change the represented person's living arrangements is a matter for the guardian.

Orders

On review of a guardianship order:
1.The order is revoked and a guardianship order in the following terms is substituted for it:
The Public Advocate of Level 1, Hyatt Centre, 30 Terrace Road, East Perth, Western Australia is appointed plenary guardian of the represented person with all the powers and duties conferred by the Act.
2.The Tribunal approved delegation by the Public Advocate of her functions as guardian of the represented person to an officer or employee employed in the Office of the Public Advocate.
3.This order is to be reviewed by 26 April 2013.

I certify that this and the preceding [76] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS F CHILD, MEMBER