RET (Deceased) and TT and RT
[2006] WASAT 327
•8 NOVEMBER 2006
RET (Deceased) and TT and RT [2006] WASAT 327
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2006] WASAT 327 | |
| GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) | |||
| Case No: | GAA:1770/2006 | DETERMINED ON THE PAPERS | |
| Coram: | MR J MANSVELD (MEMBER) | 8/11/06 | |
| 12 | Judgment Part: | 1 of 1 | |
| Result: | The application is dismissed | ||
| B | |||
| PDF Version |
| Parties: | RET (Deceased) TT and RT |
Catchwords: | Guardianship and administration Inspection of documents Legislative intent of Guardianship and Administration Act 1990 (WA) Public policy underpinning inspection regime Cogent reasons needed to inspect documents |
Legislation: | Guardianship and Administration Act 1990 (WA), s 4, s 4(2)(a), s 80, s 97, s 97(1)(b)(iii), s 112, s 112(1), s 112(2), s 112(3), s 112(4), pt 8 |
Case References: | MB [2004] WAGAB 25 Re MM (2001) 28 SR(WA) 320 Re The Full Board of the Guardianship and Administration Board [2003] WASCA 268 DeHass v Murcia and Associates, Supreme Court of Western Australia Library No 980633 |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : HUMAN RIGHTS ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : RET (Deceased) and TT and RT [2006] WASAT 327 MEMBER : MR J MANSVELD (MEMBER) HEARD : DETERMINED ON THE PAPERS DELIVERED : 8 NOVEMBER 2006 FILE NO/S : GAA 1770 of 2006 BETWEEN : RET (Deceased)
- Represented Person
TT and RT
Applicants
Catchwords:
Guardianship and administration - Inspection of documents - Legislative intent of Guardianship and Administration Act 1990 (WA)- Public policy underpinning inspection regime - Cogent reasons needed to inspect documents
Legislation:
Guardianship and Administration Act 1990 (WA), s 4, s 4(2)(a), s 80, s 97, s 97(1)(b)(iii), s 112, s 112(1), s 112(2), s 112(3), s 112(4), pt 8
Result:
The application is dismissed
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Category: B
Representation:
Counsel:
Represented Person : N/A
Applicants : Ms Alison Gibson
Solicitors:
Represented Person : N/A
Applicants : Gibson Tovey & Associates
Case(s) referred to in decision(s):
MB [2004] WAGAB 25
Re MM (2001) 28 SR(WA) 320
Re The Full Board of the Guardianship and Administration Board [2003] WASCA 268
Case(s) also cited:
DeHass v Murcia and Associates, Supreme Court of Western Australia Library No 980633
(Page 3)
Summary of Tribunal's decision
1 Two sons of a man (now deceased) applied to the Tribunal on 8 September 2006 to be provided with copies of all medical reports and the report of the Public Advocate relating to an application for administration for their father made in November 2005. A "complete" copy of the tape of the relevant hearing was also requested. In the alternative, the applicants sought an order allowing their legal representative to inspect and read the Tribunal's file.
2 An order for administration had been made by the Tribunal on 24 January 2006. The man died on 7 May 2006.
3 One of the sons had previously applied for inspection of documents on 8 May 2006 which the Tribunal refused on 11 May 2006. Written reasons for the decision were delivered on 9 June 2006.
4 The sons sought and were provided with a copy of the transcript of the hearing of 24 January 2006.
5 The legislation relevant to the sons' application was the Guardianship and Administration Act 1990 (WA).
6 The sons made the current application to obtain evidence of the deceased man's testamentary capacity in respect of a will he executed on 23 November 2004.
7 The application for inspection and access to documents (including the tape of the hearing) was dismissed as it was not considered, in this case, in the public interest for the documents and materials held by the Tribunal to be used for what the sons were proposing. The Guardianship and Administration Act1990 is intended to provide certain protections for people who are unable to make reasonable judgments about their personal life and financial estate. Sensitive information is provided to the Tribunal by professionals and other people, including family and friends of the person with the disability, and it is important in maintaining the integrity of the Tribunal's processes that the information is given in the knowledge that it will only be used in other forums in limited circumstances.
Background
8 These reasons relate to an application made by RT and TT to be provided with copies of certain documents on the file of RET (deceased).
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- A "complete" copy of the tape of the relevant hearing is also requested. In the alternative the applicants seek an order allowing their legal representative to inspect and read the Tribunal's file.
9 RT and TT are the sons of RET. The application was made on 8 September 2006.
10 One of the sons had previously applied for inspection of documents on 8 May 2006 which the Tribunal refused on 11 May 2006. Written reasons for the decision were delivered on 9 June 2006.
11 The relevant legislation is the Guardianship and Administration Act 1990 (WA) (the Act).
12 On 24 January 2006 the Tribunal appointed DC, a friend of RET, as his plenary administrator. The enduring power of attorney executed by RET on 5 April 2005 in favour of DC was revoked. The order for administration was set to be reviewed by 24 January 2011.
13 RET died on 7 May 2006.
Decision
14 I have decided to dismiss the application.
15 I will provide the reasons for my decision by firstly detailing the application to inspect, then stating the relevant legislation and lastly analysing the legislation and case law against the purpose for which the inspection is sought.
16 For the purposes of these reasons, names of persons, including the applicant have been anonymised, consistent with the practice of the Tribunal in respect of applications made under the Act to avoid identification of the represented person.
The application to inspect documents or material held by the Tribunal
17 The application is framed as follows:
"Our father [RET] died on 7 May 2006. In his will dated 23 November 2004, he left his entire estate to [DC] who was appointed by the Tribunal as his plenary administrator on 24 January 2006 and in which will he omits us, as his surviving children from benefit. We are concerned that at the time of making his will our father did not have sufficient mental
(Page 5)
- capacity to understand the terms of it and the effect of the will as executed."
"We request copies of all medical reports that were submitted to the Tribunal in relation to application GAA 1985/05, including a medical report from [Dr WA], a copy of the ACAT assessment dated 18 October 2005 and a copy of the hospital medical file from […] or if copies cannot be provided we request access by our solicitors Gibson Tovey & Associates to the Tribunal's file so that medical reports can be read. We also request a copy of the report of the Public Advocate's officer […] and a complete copy of the tape of the hearing of the Tribunal."
The relevant legislation
18 A person's entitlement to inspect or have access to documents or other materials held by the Tribunal is dealt with by s 112 of the Act.
112. Inspection of records:
(1) A represented person, a person in respect of whom an application under this Act is made or a person representing any such person in any proceedings commenced under this Act is, unless the State Administrative Tribunal otherwise orders, entitled to inspect or otherwise have access to -
(a) any document or material lodged with or held by the Tribunal for the purposes of any application in respect of that person;
(b) any accounts submitted under section 80 by the administrator of the estate of that person.
(2) Any other party to any proceedings commenced under this Act, or a person representing any such party, is, unless the State Administrative Tribunal otherwise orders, entitled to inspect or otherwise have access to any document or material lodged with or held by the Tribunal for the purpose of those proceedings, other than a document or
- material that is or contains a medical opinion not being an opinion concerning that party.
- (3) Except as provided in this section, no person (not being a member of the State Administrative Tribunal or a member of staff of the Tribunal) shall, unless he is authorised to do so by order of the Tribunal, inspect or otherwise have access to a document or material lodged with or held by the Tribunal for the purposes of any application, or to any accounts submitted under section 80.
- Penalty: $2 000 or imprisonment for 9 months.
(4) The State Administrative Tribunal may on the application of any person -
(a) by order, authorise any person, whether conditionally or unconditionally, to inspect or otherwise have access to any document or material lodged with or held by the Tribunal for the purposes of any application; and
(b) make any other order contemplated by this section.
(5) An application under subsection (4) may be made ex-parte or the State Administrative Tribunal may give directions as to the persons to whom notice of the application shall be given and who shall be entitled to be heard.”
"As in the case of the right created by s 112(1), the right given by s 112(2) is for the benefit of parties to pending proceedings to facilitate a proper hearing of an application before the Board."
20 In the present application, the proceedings concerning the represented person are complete and therefore the applicants are unable to
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- rely upon sections 112(1) or (2) to inspect or have access to documents or materials held by the Tribunal.
21 Section 112(4) is the relevant provision. The Full Board in MB stated the policy underpinning this provision at par [35], par [59], and par [60]:
"… 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.
… 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 Murciaand 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.' "
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22 And at par [57]:
"Section 112(3) of the Act reinforces the limited inspection and access rights by making it an offence, except as provided in the section, for a person, unless authorised to do so by order of the Board, to inspect or otherwise have access to a document or material lodged with or held by the Board for the purposes of any application, or to any accounts admitted under s 80."
Should the application to inspect succeed?
23 There are a number of issues that go to the heart of the inspection regime envisaged by the Act. They are, the legislative intention of the Act, the information that is provided to the Tribunal to assist in the achievement of the Act's intention, the right to inspect documents and materials within the framework of the Act's intention and finally, the use of the discretion given in s 112(4) of the Act.
24 EM Heenan J said in the decision of the Full Court of the Supreme Court in Re The Full Board of the Guardianship and Administration Board [2003] WASCA 268 at [43] and [44]:
"… the Guardianship and Administration Act is intended to 'provide for the guardianship of adults who need assistance in their personal affairs, for the administration of the estates of persons who need assistance in their financial affairs ... and to make provision for a power of attorney to operate after the donor has ceased to have legal capacity, and for connected purposes' (see the long title to the Act). From this, and an examination of the entire Act, it is obvious that the legislation is designed for the protection of adult persons whose faculties may be impaired, for any reason, and who are therefore in need of protection and assistance so as to ensure that their financial affairs and other welfare is not jeopardised by improvident, or ill-considered personal decisions or action, or by unscrupulous or ill-advised influence of relatives, friends and others who may deliberately or inadvertently exploit the vulnerability of the person in need of assistance and protection.
…The emphasis is on conserving the property and financial resources of the disabled person to ensure that they are available for his or her own needs, welfare and enjoyment and are not dissipated. These seem to be the primary objectives of the legislation and all the provisions of the Act can be seen to have
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- meaning and effect as leading towards the achievement of those purposes."
25 To fulfil the intention and objectives of the Act, the Tribunal relies upon the provision of information to it, that is forthright and that will often contain sensitive material and contentious opinion. The information is provided by medical practitioners, allied health and other professionals and family and friends of the person for whom an application for the appointment of a guardian or administrator has been made. The information is often provided in circumstances where the person for whom an application is made is unable or only partially able to contribute to the hearing process and give answer to the information made available to the Tribunal on their behalf.
26 The information is provided to enable the Tribunal to make a determination on an application that accords with the substantial merits of the question to be resolved, for example whether the person is in need of an administrator or guardian. The people who provide the information can expect to be questioned on it and the credibility of their information tested as to its value to the Tribunal. As already mentioned, when an application is being heard by the Tribunal, the inspection regime is covered by sections 112(1) and (2) of the Act. This allows for a limited number of people to inspect documents and materials held by the Tribunal in the context of submitting to the Tribunal, information and opinion that will assist in the decision to be made on a particular application. This is largely uncontroversial but even so is restricted in its scope. As stated in MB at par [34]:
"…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."
27 Once an application is decided by the Tribunal, a person who provided information would generally expect that information to be maintained within the boundaries of the application and hearing process, which would include a review or appeal of the Tribunal's determination. As identified in Re MM and confirmed in MB, this is important in maintaining the integrity of the processes of the Tribunal, to ensure that people continue to feel confident in providing candid information to the Tribunal without fear that the information will, as a matter of course, find its way into other forums.
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28 An example of this is the reports provided by the Public Advocate when a matter is referred to her by the Tribunal pursuant to s 97(1)(b)(iii) of the Act. The applicants are seeking access to such a report.
29 The office of the Public Advocate is created by the operation of Part 8 of the Act. The functions of the Public Advocate are described, and relevantly, under s 97 of the Act, the Tribunal is empowered to have her investigate and report at hearings commenced under the Act, on any question or matter referred to her. When the Public Advocate provides the Tribunal with a written report arising out of her investigation, she makes it clear that the intended recipient is the Tribunal. The independent investigation is carried out, and the report produced specifically for a proceeding under the Act, and one can reasonably accept that is the understanding of the people from whom the Public Advocate obtains information. Whilst that is not of itself determinative of a decision of the Tribunal under s 112 of the Act, it has to be said that the investigations of the Public Advocate are an important source of information to the Tribunal and the integrity of that information is crucial to a number of the decisions it makes for people under disability.
30 Situations can be envisaged, however, where after a proceeding is completed, an appointed guardian or administrator might seek to inspect material held by the Tribunal for the purpose of fulfilling their functions. For example, an administrator, after appointment, may make an application to inspect certain documents held by the Tribunal to assist in determining the represented person's estate. Or an application might be made by a guardian or administrator of another represented person who has a demonstrated interest in the represented person's estate. On its face these would seem to be reasonable requests under s 112(4) of the Act.
31 To speak of limiting the circumstances by which inspection might be allowed is not to fetter the broad discretion available to the Tribunal under s 112(4). This was restated by the Full Board in MB at par [66] and par [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
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- 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.
… It is for the Board in every case to decide if there are very good reasons to permit inspection or access having regard to the facts and circumstances raised in the application before it. In some cases, the exercise of the discretion may be constrained by the principle expressed in s 4(2)(a) of the Act, namely, that in the performance of its functions 'the primary concern of the Board shall be the best interests of any represented person, or of a person in respect of whom an application is made'."
32 I accept that the example given in MB of an official investigation in the public interest could be a situation where an inspection under s 112(4) is allowed in the sense that public policy dictates that legislation, in general, is subject to such scrutiny. I return, however, to the intention and objectives of the Act as stated in these reasons. It is my view that the discretion allowed me by s 112(4) of the Act, should otherwise only be exercised for applications to inspect that demonstrate a reasonable relationship between the purpose to which the requested information is to be put and those intentions and objectives.
33 I am not satisfied that the application by RT and TT is in the nature of circumstances that should lead me to exercise my discretion under s 112(4). The information being requested by the applicants is in contemplation of an action in the Supreme Court to contest a will allegedly executed by RET.
34 This request, does not in my view, exhibit that "reasonable relationship" to which I have referred, with the objectives of the Act.
35 I therefore dismiss the application.
36 The Supreme Court may consider, in the appropriate case, to ask that RET's file held by the Tribunal be made available to the Court, to provide material or documents that may be on that file to assist the Court. I will direct that the Executive Officer of the Tribunal write to the Principal Registrar of the Court to alert him to the existence of this matter.
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Orders
37 The application made under s 112(4) of the Guardianship and Administration Act 1990 (WA) is dismissed.
38 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 [38] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR J MANSVELD, MEMBER
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