T - [2024] WASAT 77 | CaseChat AU

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION:   T [2024] WASAT 77
MEMBER:   DR E MARILLIER, SENIOR MEMBER
HEARD:   7 MAY AND 9 JULY 2024
DELIVERED          :   26 JULY 2024
PUBLISHED           :   26 JULY 2024
FILE NO/S:   GAA 1742 of 2024

T
Represented Person
DEPARTMENT OF COMMUNITIES
Applicant

Catchwords:

Guardianship and administration - Suitability for appointment as guardian - Whether the proposed appointee will be able to perform the functions vested in him or her

Legislation:

Guardianship and Administration Act 1990 (WA), s 4, s 43(1)(b), s 43(1)(c), s 44, s 44(2), s 44(2)(d), s 44(5), s 51, s 51(1), s 53, s 86

Result:

Private guardians re-appointed

Category: B

Representation:

Counsel:

Represented Person	:	Non-Appearance
Applicant	:	In Person

Solicitors:

Represented Person	:	N/A
Applicant	:	N/A

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

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

(These reasons are being delivered orally on 26 July 2024. They are being published in anonymised form to provide a written record to assist parties to have time to consider them in detail thereafter, and for the convenience of those parties and professionals unable to attend the delivery of the oral decision.)

These are my reasons for decision in GAA 1752 of 2024, an application under s 86 of the Guardianship and Administration Act 1990 (WA) (GA Act). The application seeks review of the guardianship order made on 12 December 2022 which continued the joint plenary appointment of T's parents, A and E, which was first made in 2020.

Background

This application was made by the Department of Communities (Department) after the Western Australian Police Force (Police) raised concerns about the welfare of T. Officers were asked to attend by a locum doctor who had been called by A when T's behaviours became unmanageable. A was concerned he had dental pain as he was biting metal bars.
T is 23 years old and has severe autism and intellectual disability. His parents separated when he was 2 years old but remain supportive of one another in relation to T. A has been the primary carer for T since the separation, but until about 7 years ago, E would care for T on weekends. E then needed to move to Melbourne for work as he had been unsuccessful in applying for any carer benefits and his business had failed.
In 2017, prior to E moving interstate, T's case was referred to the Disability Services Commission due to T's challenging behaviours and concerns regarding whether A and E were able to manage them. Incident reports from that time filed on the 2020 matter are consistent with current reports by A that T is at risk of hurting himself, those around him and causing serious property damage when dysregulated. As an example, the 2020 reports include reference to A wearing a helmet to drive the car because T would try to hit her, and that he kicks doors and windows and damages furniture.
The Tribunal first made orders appointing a guardian for T in 2020 after an application by the Office of the Public Advocate (Public Advocate or OPA). This followed a community referral investigation requested by Police. Concerns had been raised by neighbours, and on investigation were also held by some of the professionals involved with T at the time (and similarly in reports dating back to 2017), that his needs were not being met, with examples including that he was naked in the backyard, incontinent and distressed. Professionals reported on multiple occasions that A disengaged with them or other supports if she did not agree with their recommendations. T's psychologist Dr J and general practitioner Dr M however were of the view that A was making decisions in T's best interests. After three hearings over three months, the Tribunal appointed A and E joint plenary guardians and dismissed the administration application, with review of the orders to occur within 2 years.
In 2022 at the scheduled statutory review, Dr J and Dr M provided reports and raised no concerns regarding the decisions being made for T. The orders were confirmed with a review to occur within 5 years.
When police were called to assist the locum doctor in late February 2024, they found T:[1]
[n]aked and locked behind a reinforced steel barred door with a mattress covered in faeces, steel toilet also covered in faeces. There was a putrid smell. There were 3 support workers present, two were on their first shift, the other had worked at the address for approx 4-5 months, intermittently. Apparently, [T] is self managed by his Mother with NDIS and she has employed them to work. From minimal information received it sounds like [T] has not been out of this confinement for some time, apparently his Mother attempted to take him to the dentist after New Years, but he became agitated and damaged the car. She states he is confined this way for his and her safety and because he damages property and has severely injured himself once when he was in hospital years ago, so she feels that no one else can care for him.
Photos taken from body cameras were provided of the appearance of the room.
[1] Email of 1 March 2024 from attending police officer to WAPOL Family Violence team.
T was taken to a local hospital where he spent 11 days. Doctors found T had dental pain, a known rectal prolapse and inguinal hernia. T was dysregulated during the hospital stay requiring medication and physical restraint at times. He kicked and broke a tile in the bathroom. T was discharged into A's care with referrals to a specialist support co‑ordinator, and with information regarding autism-specific psychiatric services.
I referred this matter to the Public Advocate for investigation and conducted hearings on 7 May and 9 July 2024.
I have decided to re-appoint A and E as the joint guardians with review of these orders within a year. These are my reasons for that decision.

Principles to be observed

In making my decision, I am mindful of the principles set out in s 4 of the GA Act:
•my primary concern is the best interests of T;
•T is presumed to be capable of looking after his own health and safety and of making reasonable judgments in matters relating to his person until the contrary is proved to the satisfaction of the Tribunal;
•a guardianship order may not be made where there is an alternative means of meeting T's needs that is less restrictive of his freedom of decision and action;
•where an order is made, it must be in terms that impose the least restrictions on T's freedom of decision and action; and
•I must seek to ascertain, as far as possible, the views and wishes of T.

What the Tribunal must be satisfied of

Before appointing a guardian, I must be satisfied that T is:
(a)incapable of looking after his own health and safety; or
(b)unable to make reasonable judgments in respect of matters relating to his person; or
(c)in need of oversight, care or control in the interests of his own health and safety or for the protection of others.
In addition, I must be satisfied that T is in need of a guardian.[2]
[2] GA Act, s 43(1)(b) and s 43(1)(c).

Capacity

There is unanimous evidence from all the professional reports on the file for the current and past matters that T has severe intellectual disability and autism. T can communicate some basic needs via gesture and vocalisation, with A reporting she can understand a small number of individual words. T's inability to understand his own needs and communicate them leads to frustration which manifests in T hurting himself or others and damaging property. These behaviours arise from T's condition and put his own and others' safety at risk.
I am satisfied and I find that by reason of his intellectual disability and autism, T is not able to make reasonable judgments regarding his person, he is incapable of looking after his own health and safety and he is in need of oversight, care and control in the interests of his own health and safety and for the protection of others. I find that T remains a person for whom I can appoint a guardian.

Need

T is a client of the National Disability Insurance Scheme (NDIS). Environmental, physical and chemical restrictive practices are being utilised to try to manage safety concerns.
A functional capacity assessment (FCA) completed on 8 April 2024 reports T could not participate in an interview due to a lack of comprehension. The FCA reports:[3]
…
When feeling agitated/overwhelmed or when his needs are not met, [T] may engage in challenging behaviours including physical aggression (pulling hair, biting, kicking), faecal smearing, and property damage. [A] strongly believes that his inability to express pain and discomfort related to his medical conditions further impacts his behaviours. [T]'s behaviours were reported to be unpredictable and intense in nature, and lead to frequent damages inside the house and increase his risk of injuries. [A] has therefore had to implement safety measures (potential restrictive practices) such as restricted access to the kitchen (to prevent access to stove, oven), locks on the front door (to prevent him leaving the house unsupervised), restricted access to living/[dining] area and other bedrooms via [a] lockable door in the hallway (to prevent property damage and injuries to self when escalated). [T] has also been prescribed medication for behaviour management. Due to [T]'s high care needs, frequent and unpredictable behavioural escalations, and risk of injury to him and others around him, he is often supported at a ratio of 2:1 at home and 3:1 in the community[.]
[3] Functional Capacity Assessment of DS, Occupational Therapist, 8 April 2024.
T's NDIS plan is funded for a total of more than $500,000 for 12 months. Just over $400,000 of this is for assistance with daily living, and almost $50,000 for social and community participation.
A gave evidence that T's desire not to wear clothes, faecal smearing behaviours, and dysregulation in unfamiliar environments and with unfamiliar people has made it very difficult for her to support him to access the community, appropriate medical or dental care and to maintain therapeutic relationships with some professionals. This is compounded by the fact that T is tall and much larger than A. Similarly, these issues have made it difficult for T to be accommodated for respite. A reports T kicked and broke a window in 2021 sustaining potentially lifethreatening injuries while at respite (which she cut short as a result). The 2020 matter contains records and A and E confirmed that T had absconded from a previous respite placement and run across a road.
Dr J's report of 2 May 2024 and his oral evidence at hearing is that T has limited insight into his own needs, and functions at the level of a very young child in the body of a fully grown man.
I am satisfied by the evidence above and I find that T is unable to comprehend and communicate about even his most basic needs. He cannot engage with the necessary decisions about how his complex medical, support and accommodation needs can be met. T cannot decide which restrictive practices are needed to promote his own health and safety and allow him to live the best possible life and also protect those around him including but not limited to A, E, support workers, health professionals and the community. Because these decisions currently need to be made and will continue to be required, T continues to be in need of a guardian.

What are T's views and wishes?

T did not participate in the hearings as it is clear from the reports on the file that he would not be able to comprehend or contribute and that the unfamiliar situation would cause him great distress, with risks to his own and others' welfare. Dr M's 2022 report indicated that attendance would be adverse to T's health.
The Public Advocate investigator undertook a home visit. The investigator spent 90 minutes at the home and reports:
…
[a]lthough the author had minimal interaction with [T] and did not ascertain his views and wishes regarding the matter, based on observations, it is evident that [T] and [A] shared a loving relationship and bond. Throughout the visit, [A] communicated with [T] in a loving manner and responded to his cues and requests promptly and appropriately. Further, there are no indications that [T] is fearful of [A] although he is obedient and [complies] with her instructions such as 'put on clothes'[.]
As an example, the investigator reports T stood by the doorway briefly observing the discussion. He was fully clothed but returned to his room and within 30 seconds, reappeared naked to take a magazine back to his room. When T had his clothes on, he would wear them inside-out as he does not like the sensation of the label and the seams. He had also removed the bedsheet, which A advised is a common behaviour. T was persistently asking for 'hamburger', and A made a few for him. T asked A for 'fuji doh doh', which A advised is a word unique to T when he is asking for 'fruit juice'.
Although it is not possible to get a specific answer from T regarding his views and wishes, I am satisfied from the above evidence that it would not be contrary to his wishes for A to continue to make decisions for him.

Who should be appointed?

A guardian must be a person over the age of 18 who is willing to undertake the role, and whom the Tribunal finds will act in the best interests of the represented person (including as set out in s 51 of the GA Act) and is otherwise suitable.[4] Their interests must not conflict with those of the represented person and the Tribunal must take into account in assessing suitability as far as possible:[5]
(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/guardian (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.
[4] GA Act, s 44.
[5] GA Act, s 44(2).
The Public Advocate shall not be appointed as guardian or administrator unless there is no other person the Tribunal finds suitable who is willing to act.[6]
[6] GA Act, s 44(5).
In this case, A and E have indicated that they are willing to be appointed as guardian and A submitted that her preference is that they continue to be appointed jointly. They are evidently over 18 years as they have a 23 year old son.
The issue that is most contentious currently and was in 2020 (as it appears from the 128 documents on file on that matter), is whether or not A and E are suitable to be appointed guardian either solely or jointly.

A's suitability

A says she knows T the best. She says his situation is very complicated, and that the guardian needs to know T and his needs. A does not believe that someone else can understand, judge or advocate for him in the way she can. She has been his primary carer for the majority of his life.
E says A should be the guardian as she is T's primary carer. He believes A has been 'stonewalled' by government departments in the past.
Dr J has known T for over 4 years. He made multiple home visits within the first 3 - 4 months to assess T's behaviour and needs and provides ongoing fortnightly consultations providing support to both T and A given the strain of the carer role on A. Dr J attended the home visit with the Public Advocate investigator. He has no concerns regarding T's accommodation or service provision as arranged under the orders under review. He understands these arrangements have been made by A. He does not refer to E as being involved in any of these decisions.
Dr M has known T for 10 years. He attended the 7 May 2024 hearing in person to provide evidence and provided written reports in 2020 and 2022. Dr M notes it is difficult for A to bring T to the surgery, so he does telephone consultations and receives correspondence from hospitals and specialists. He was aware of the concerns which had led to this and the 2020 application. He stated that when A reaches out for help (as she did when calling the locum doctor) it is because she recognises when there is a crisis and seeks help appropriately. He believes that the environmental restraints and home modifications A has implemented are reasonable, appropriate and proportionate in the circumstances of the case.
The OPA investigator found at the home visit (23 days after T was discharged from hospital) that:[7]
[7] Public Advocate's Report dated 3 May 2024.
·[a] door with vertical metal bars and external lock separates [T]'s 'area' from the rest of the house.
o   The 'area' consists of an L-shaped corridor leading to [T]'s bedroom, a toilet, and a bathroom. Two other doors have been boarded up - they were previously access to the two other bedrooms in the property.
·New access has been created to access the two bedrooms, which required one of the bedrooms to act as a 'passthrough' to [A]'s bedroom.
o   This enabled [A] to access her own bedroom and gave [T] privacy in his area.
·Kitchen area is gated.
o   [A] advised that [T] once smashed plates and bowls, and bit them into pieces. Her temporary solution at the time was to move all the items into her bedroom, which made usage extremely laborious as she would return the items to her room after each use.
·The laundry area (access via kitchen and leads to the backyard) has a shower and toilet installed. This is primarily used by [A] as the original bathroom and toilet is considered [T]' as it is part of his area.
·Roller shutters have been installed on all windows following noise complaint from neighbours.
·[T]'s room window has been double boarded as a single barrier was insufficient to stop him from kicking through the glass. The external roller shutter is observed to be dented outwards from previous incident.
·All glass or windows on the lower 1/3 around the property are double boarded to prevent [T] from kicking through them.
·Shade cloth covering approximately half of the backyard has been recently installed. [A] advised that [T] likes spending time outdoors but would often get sunburnt previously.
·Mental health grade mattress. [A] advised that she made the purchase after observing the mattress used by hospitals in [T]'s recent admission, she thought it would be much easier to clean if soiled and would also be resistant to damage.
·Stainless steel toilet. Dr [J] noted that [T] would remove the plastic lid and risk injury to himself previously, which led to the installation of a stainless-steel toilet with no removable parts.
A reported that while T was in hospital, she had arranged for T's area of the house to be thoroughly cleaned and re-painted with washable paint. Perimeter fencing had all been replaced as T had damaged the bottom section with kicking.
The OPA investigator explored the allegations of neglect, inappropriate allocation of NDIS supports, and inappropriate restrictive practices raised by the application with A and Dr J and was satisfied those concerns were based on an acute crisis situation, which was not representative of the day-to-day reality. The OPA investigator supported the ongoing appointment of A and E, although he noted that it appeared E was not actively involved in the guardianship decision-making.
I see the actions taken by A as evidence of the rapidity with which she can and does seek to make improvements to T's environment when the opportunity presents itself, as it did while he was in hospital (and would more frequently if it proves possible to find a suitable respite option).
The representative from the Department had the following concerns regarding A's suitability:
(a)that the environmental modifications did not appear to have been made with advice from appropriately qualified and experienced practitioners;
(b)that there had not been engagement of a behaviour support practitioner; and
(c)that options for respite in a robust accommodation facility did not appear to have been explored.

I note that in documents from 2017 and 2020 on the 2020 matter, behaviour support plans have been filed along with reports from the practitioners involved. They report that A was dismissive of recommendations and frequently terminated the services of providers who gave advice she did not agree with.
The Specialist Support Co-ordinator (SSC) arranged when T was discharged from hospital reported that A had terminated her services after she had introduced A to, and organised initial appointments with, the occupational therapist (OT) who provided the FCA, a speech therapist and a behaviour support practitioner. The SSC reported A wanted extensive home modifications but did not want the assessment and reports which would be necessary to provide the necessary evidence to support such an application to the NDIS. The SSC reports she did discuss with A the possibility of seeking specialist disability accommodation for T to give him a home of his own long-term and regular breaks for A, however A only wanted home modifications paid for by the NDIS. The SSC also reports explaining why OT and speech therapy assessments are important for assessing T's needs and formulating plans which can then be used to ensure family and support workers are providing consistent care. She reports that in the email from A dismissing her, A says it is because it is the SSC's fault the NDIS plan has changed from self‑managed to agency-managed, that the SSC has done no work and that she sees no benefit in spending thousands of dollars on assessments. The SSC felt that A's decisions were not in the best interests of T.
When I asked A why she had dismissed the SSC, she said it was because someone (she was not willing to name them) had told her the SSC 'takes peoples' children away'.
A told me at the final hearing that she has subsequently appointed a new support coordinator from A13 Community Care (about four weeks prior to the hearing). She told me her hopes from NDIS were to have increased funding for home repairs (the current plan allows $500 only) and to have funding to build robust free-standing accommodation on her block for T and live-in carers. A also hopes NDIS may fund some form of transport that will be safer, as her car is now so damaged by T that she feels she cannot use it. There is around $1,700 in the current plan for transport. A told me she is arranging for OT, speech and Positive Behaviour Support Plan via the new agency.
A says the longest time she has had the same support coordinator was for the 2 years prior to the 2020 hearing.
A says she had a recent telephone conversation with the NDIS planner, and she believes that greater accommodation funding will be approved and that her new support coordinator believes they may be able to provide suitable transport. I have no independent evidence regarding these conversations.
A says if they are not successful in getting NDIS funding to build robust accommodation for T on her block, then the back-up plan is to find respite somewhere robust and ideally with someone already familiar with T. She says she has raised this with the new support coordinator, but he has not yet come back with a solution. When I asked A if E staying at A's house with support workers to care for T if A went away for a break would be an option, she indicated that was not a solution she would favour.
I am satisfied and I find that A's evidence and that of Dr J, Dr M and the OPA investigator demonstrate that she is a passionate and dedicated parent to T. A is highly educated and has been unable to work due to her caring responsibilities. I am satisfied there is clear evidence that T's needs and behaviours are complex and demanding.
A sees herself as the expert in T, and that no-one else understands him as well as she does. I accept that this is true, based on the evidence that in hospital it was essential for A to be present to assist in T complying with necessary hygiene and examination, and historically school, support workers and respite staff have needed A's assistance when T becomes dysregulated as can be seen from the historical records and reports.
The question for me is whether A can meet the suitability requirement that the proposed appointee will be able to perform the functions vested in her.[8] All the other limbs of s 44 support A's appointment. My concern is the documented difficulty A has had in reports from 2017 to 2024 in considering the opinions of qualified practitioners regarding alternatives that may benefit both T and A herself (given the extraordinary carer burden that being available around the clock for T places upon her).
[8] GA Act, s 44(2)(d).
A has terminated the services of multiple professionals of varied degrees of seniority over several years. The SSC report and in oral evidence A herself indicated that she did not understand what type of evidence she might need to make the argument for the building of a custom-built facility for T on privately-owned land to the NDIS.
A's reaction to the suggestion that the Public Advocate might be appointed as the guardian for services was to assume that meant that T would no longer live with her. I attempted to explain that potentially it would mean that a person expert in the NDIS could assist in trying to navigate that system to give the best chance of achieving the goals she has articulated for T.
A was extremely upset and appeared unable to process the fact that a potential split appointment (as proposed by the Department) was not an existential threat to her role as a parent.
A stated that she 'was not stupid, I have university degrees, I play 5 instruments'.
A struggled to refrain from interrupting participants in the hearing who expressed any concern that she may have made any decisions that were not in T's best interests.
This reaction appears to come from a deep fear that T may be removed from A's care, and that harm will come to T if he is cared for by people not as familiar with him as A. Unfortunately, it impairs A's ability to hear and understand genuinely held concerns by experienced professionals who understand the system well, even though they cannot understand T as well as A does.
I find however that A has been able to maintain long-term therapeutic relationships with both Dr J and Dr M for T's benefit. I accept A's point that a decision-maker 'does not have to be perfect'. I accept that A believes every decision she has made for T has been in his best interests (and this is consistent with s 51(1) GA Act).
Having reviewed all the evidence on the file, in relation to his medical needs I am satisfied that A has done her best to seek medical and dental treatment for T in very difficult circumstances (and he has now had dental treatment under general anaesthetic at a private dentist and A reports his behaviours are settling). Dr M says the medical decisions made for T are reasonable and in T's best interests (including around the use or non-use of medications and to proceed or not with procedures or surgery for prolapse and hernia).
The environmental modifications have been made at least in part in consultation with Dr J who has known T for several years and visited him at home on multiple occasions, and says they are appropriate.
Regarding respite, A acknowledges that she does need some respite, but has understandably been made very cautious by the two occasions where T has absconded or been injured after kicking a window, such that no arrangements are currently in place. I acknowledge how hard it must be for A to put her trust in anyone else to care for T safely in the circumstances.
Given the complexity of T's needs, A's ability to form long-term alliances with some professionals and their support for the suitability of her decision-making, I find that it would be premature for me to find A unsuitable to make services decisions for T, even though I am concerned that she is not able to be sufficiently pragmatic and flexible in her approach to the NDIS process to achieve the outcomes she seeks for T. I think A would benefit from having an expert in the NDIS assist her (as the expert in T's needs) to try to advocate most effectively within the system.
A tells me she has a new support coordinator who may fulfil that role.
I hope that these reasons may assist A to understand that the function of determining what services T should have access to (which in his case is effectively advocating for his needs within the NDIS) is the area where I am close to finding the current appointments unsuitable. This is due to the fact that in the 4 years since A and E were appointed, they have not been able to find suitable respite, have not engaged a positive behaviour support practitioner and appear to be struggling to understand what assessments and reports they might need to support their requests to the NDIS for certain types of assistance.
A's defensive reaction to the suggestion of a split appointment was so extreme that although I have not reached a sense of comfortable satisfaction that A is suitable to make services decisions for T, I do not believe the appointment of the Public Advocate at this time would be in T's best interests. I believe A is not currently able to co-operate and engage with an independent guardian with split appointment responsibilities or accept any decisions they made that were not aligned with her view. Therefore, on the balance of probabilities I find that it is in T's best interests that I should appoint A, either alone or with E as T's guardian.

E's suitability

E tells me A always calls him and involves him in regard to any major decisions regarding T. He states that until 2017 he was regularly caring for T on weekends and was working on communication skills with him. In 2017 his business was failing. A lady from the Department for Child Protection did a home visit and raised concerns about unsafe situations. He moved to Melbourne for work opportunities. E says it had been a struggle maintaining full-time work and caring for T with no financial support from agencies for his role.
Records from the Department filed on the 2020 matter but dating from 2017 indicated that E said he no longer felt he could keep T and himself safe at home.
E says the joint guardianship has worked to date and that he and A are a united front seeking the best outcomes for their son. He observed that often one parent will have more of a prominent voice or consent role on decisions.
E says he is aware of the modifications A has made to her house and supports them all as necessary for T's and A's safety.
The SSC report indicates that when there was a joint meeting with E and A, E spoke over A. A had told the SSC that she would not be agreeable to E living in her home, and that all consents for NDIS purposes needed to come to A.
Dr J's report says, 'father lives in Victoria and has very little contact with T or his mother'.
E made statements in pejorative terms about 'bureaucrats' in relation to decisions by Centrelink, NDIS, the Department and health practitioners at hospitals providing care to T. He described his sense of grievance about not receiving carer payments, and that he felt A's difficulties in achieving certain outcomes from NDIS was due to 'stone‑walling'.
On its face, it appears E's direct involvement with T and knowledge of his needs has been minimal since 2017. E is currently in Perth, and he tells me he plans to spend alternating two-month periods here and in Melbourne.
When A became very upset during the hearing, E was able to provide support and assisted A to regulate herself.
A indicated that she wants a joint appointment with E because 'even though we are not a couple any more I still thinks [E] knows [T] better than anybody else aside from me'. A said she has never had a problem with the joint appointment meaning that she could not complete a decision or sign a consent. A said 'I thought he was to make decisions only when I was not able to make decisions'.
Section 53 of the GA Act states:
Where joint guardians are appointed —
(a)a guardian shall not perform any function without the concurrence of the other guardian or guardians[.]
A still wanted E to be appointed joint guardian after this was explained.
Given my desire to give these orders the best chance of success, and having observed the support E gave A to regulate herself in the hearing, I am satisfied it is in T's best interests to accede to A's request, notwithstanding my concerns that E's sense of grievance against government agencies and employees may compromise his ability to engage with them constructively and collaboratively as T's guardians must.

Scope of order

Limited appointment

I am satisfied T's needs can be met by a guardian with functions limited to accommodation, services, treatment, NDIS restrictive practices and restraint consents as these are the areas where decisions have been being made in the past 4 years. T's disability is so severe that there is no realistic prospect of him requiring decisions in many areas of personal decision-making that would be covered in a plenary order.

Period of order

I am required to specify a period of time within which a review of the orders must be made. The maximum time period allowed by the GA Act is 5 years.
In this case I consider that it is in T's best interests for these orders to be reviewed within 12 months due to the concerns I have outlined above regarding A and E's ability to navigate the NDIS on his behalf. I hope that providing these reasons in written form will assist A and E to understand my concerns, and to engage constructively with necessary professionals to demonstrate that they can be pragmatic and flexible in identifying how T's needs can be met and that they can understand the NDIS system well enough to work out what evidence they need to gather to attempt to make the case for the supports sought.
Because of the concerns, I believe early review by the Tribunal is in T's best interests.
For the above reasons, the Tribunal makes the following declarations and orders.

Orders

The Tribunal declares that the represented person [T] is:
(a)incapable of looking after his own health and safety;
(b)unable to make reasonable judgments in respect of matters relating to his person;
(c)in need of oversight, care or control in the interests of his own health and safety or for the protections of others; and
(d)in need of a guardian.
The Tribunal orders:
Guardianship

The guardianship order dated 12 December 2022 is revoked and substituted with an order in the following terms:
1.[A] of [address] and [E] of [address] are appointed joint limited guardians of the represented person with the following functions:
(a)to decide where the represented person is to live, whether permanently or temporarily;
(b)to decide with whom the represented person is to live;
(c)to make treatment decisions for the represented person, subject to Division 3 of Part 5 of the Guardianship and Administration Act 1990 (WA);
(d)to determine the services to which the represented person should have access;
(e)to decide whether to give or withhold consent to the use of any restrictive practices proposed in any behaviour support plan developed from time to time for the represented person in compliance with the requirements of the National Disability Insurance Scheme (Restrictive Practices and Behaviour Support) Rules 2018;
(f)to decide whether to give or withhold consent to the use of restraint to give effect to a decision of the guardian made pursuant to these orders and in the interest of the represented person's health and safety, on the following basis:
(i)where restraint is proposed, a medical plan must be developed setting out the purpose and circumstances under which restraint is to be used. The plan must be approved by a medical practitioner and, if it remains in place, be regularly reviewed; and
(ii)a decision to use restraints should be made only after all reasonably available less restrictive alternatives have been considered and found not to be successful.

2.The order is to be reviewed by 26 July 2025.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
DR E Marillier, SENIOR MEMBER
26 JULY 2024