JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: TL -v- OFFICE OF THE PUBLIC ADVOCATE [2020] WASC 455
CORAM: CURTHOYS J
HEARD: 29 OCTOBER 2020
DELIVERED : 9 DECEMBER 2020
FILE NO/S: GDA 5 of 2020
BETWEEN: TL
Appellant
AND
OFFICE OF THE PUBLIC ADVOCATE
First Respondent
PUBLIC TRUSTEE
Second Respondent
ATTORNEY GENERAL FOR WESTERN AUSTRALIA
Intervenor
Catchwords:
Public advocate - Delegate - Role of State Administrative Tribunal - Appointment of guardian
Legislation:
Guardianship and Administration Act 1990 (WA), s 4(6), s 4(7), s 13, s 17A, s 19, s 21, s 30, s 40, s 44, s 45, s 46, s 64, s 68, s 69
Rules of the Supreme Court 1971 (WA), O 65 r 8
State Administrative Tribunal Act 2004 (WA), s 27
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | Mr R E Lindsay |
| First Respondent | : | No appearance |
| Second Respondent | : | No appearance |
| Intervenor | : | Ms C J Thatcher SC |
Solicitors:
| Appellant | : | Capital Legal |
| First Respondent | : | No appearance |
| Second Respondent | : | No appearance |
| Intervenor | : | State Solicitor's Office |
Case(s) referred to in decision(s):
Associated Lesure Ltd (Phonographic Equipment Co Ltd) v Associated Newspapers Ltd [1970] 2 QB 450, 456; [1970] 2 All ER 754, 757
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 203
DTM v JMM (2009) 68 SR (WA) 10; [2009] WASAT 203
JNS [2017] WASAT 162
Lackovic v Insurance Commission of Western Australia (2006) 31 WAR 460
CURTHOYS J:
Introduction
In this matter, TL, the appellant appealed against the decision of the State Administrative Tribunal (SAT) to appoint the Public Trustee as administrator and the Public Advocate as guardian of the represented person pursuant to the Guardianship and Administration Act 1990 (WA) (GA Act).
Leave was granted to the Attorney General for Western Australia to intervene on 20 October 2020.[1]
[1] The appellant's submissions referred to an article by Justice Kenny 'Intervenors and Amici Curiae in the High Court (1998) 20 Adelaide Law Review 159. That article noted that it did not deal with the position of intervention by Attorneys General. It is not apparent why that article was cited.
It was not in issue at any stage that the represented person was someone for whom a guardian and an administrator should be appointed.
SAT's jurisdiction is to appoint the decision maker rather than to review individual decisions made by the decision maker, be it the guardian or the administrator.
The appellant's appeal is dismissed for the reasons stated below.
The family
The represented person has four children. She is the mother of the appellant, W, G and L. The represented person also has a sister, Mrs K.
The GA Act
Application for guardianship and administration
Section 40(1) of the GA Act provides:
A person may apply to the State Administrative Tribunal for a guardianship order or an administration order in respect of a person.
Principles to be observed by SAT
Section 4 of the GA Act provides:
(1)In dealing with proceedings commenced under this Act the State Administrative Tribunal shall observe the principles set out in this section.
(2)The primary concern of the State Administrative Tribunal shall be the best interests of any represented person, or of a person in respect of whom an application is made.
(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.
Appointment of a guardian by SAT
Section 43 of the GA Act relevantly provides:
(1)Subject to section 4, where the State Administrative Tribunal is satisfied that a person in respect of whom an application for a guardianship order is made under section 40 –
(a)has attained the age of 18 years;
(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, and if it does so shall appoint -
(d)a person to be a plenary guardian or a limited guardian …
(3)An appointment under subsection (1) … may be made subject to such conditions and restrictions as the State Administrative Tribunal thinks fit.
(4)An order appointing a limited guardian shall specify the functions that are vested in the limited guardian under section 46
Section 44 of the GA Act provides:
(1)A guardian (including a joint guardian) shall be an individual of or over the age of 18 years who has consented to act and who in the opinion of the State Administrative Tribunal -
(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.
(3)Where a proposed appointee is a relative of the person in respect of whom the application is made, he shall not by virtue only of that fact be taken to be in a position where his interests conflict or may conflict with those of that person.
(4)The fact that a person is the administrator of the estate of a person does not disqualify him from being appointed as guardian of that person.
(5)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.
Powers of a guardian
Section 45 of the GA Act provides:
(1)Subject to section 43(3), where a person is appointed as a plenary guardian …
(2)Without limiting subsection (1), a plenary guardian may do any of the following -
(a)decide where the represented person is to live, whether permanently or temporarily;
(b)decide with whom the represented person is to live;
(c)decide whether the represented person should work and, if so, the nature or type of work, for whom he is to work and matters related thereto;
(d)subject to subsection (4A), make treatment decisions for the represented person;
(e)decide what education and training the represented person is to receive;
(f)decide with whom the represented person is to associate;
(g)as the next friend of the represented person, commence, conduct or settle any legal proceedings on behalf of the represented person, except proceedings relating to the estate of the represented person;
(h)as the guardian ad litem of the represented person, defend or settle any legal proceedings taken against the represented person, except proceedings relating to the estate of the represented person;
(i)if the plenary guardian is a research decision‑maker for the represented person - subject to subsection (4A)(a) and sections 110ZR and 110ZT, make research decisions in relation to the represented person.
Section 46 of the GA Act provides:
Subject to section 43(3), where a person is appointed as a limited guardian, or 2 or more persons are appointed as joint limited guardians, he or they have, in respect of the person of the represented person, such of the functions mentioned in section 45 as the State Administrative Tribunal vests in him or them in the guardianship order.
Appointment of an administrator
Section 64 of the GA Act relevantly provides:
(1)Subject to section 4, where the State Administrative Tribunal is satisfied that a person in respect of whom an application for an administration order is made under section 40 -
(a)is unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all or any part of his estate; and
(b)is in need of an administrator of his estate,
the Tribunal may by order declare the person to be in need of an administrator of his estate, and if it does so shall appoint -
(c)a person to be the administrator; or
(d)persons to be joint administrators,
as the case may require, of the estate of the person in respect of whom the application is made.
(2)Where under subsection (1) the State Administrative Tribunal declares that a person is in need of an administrator of his estate, it shall declare the matter or matters set out in paragraph (a) of that subsection of which it is satisfied.
(3)An appointment under subsection (1) -
(a)may be made subject to such conditions and restrictions as the State Administrative Tribunal thinks fit;
(b)…
Section 68 of the GA Act provides:
(1)An administrator (including a joint administrator) shall be -
(a)an individual of or over the age of 18 years; or
(b)a corporate trustee,
who has consented to act and who, in the opinion of the State Administrative Tribunal -
(c)will act in the best interests of the person in respect of whom the application is made; and
(d)is otherwise suitable to act as the administrator of the estate of that person.
(2)…
(3)For the purposes of subsection (1), the State Administrative Tribunal shall take into account as far as is possible -
(a)the compatibility of the proposed appointee with the person in respect of whom the application is made and with the guardian (if any) of that person;
(b)the wishes of that person; and
(c)whether the proposed appointee will be able to perform the functions proposed to be vested in the administrator.
(4)The fact that a person is the guardian of a person does not disqualify him from being appointed as the administrator of the estate of that person.
(5)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 an administrator unless there is no other individual or corporate trustee who is suitable and willing to act.
Powers of an administrator
Section 69 of the GA Act relevantly provides:
(1)Subject to section 64(3)(a), the administrator has, or the joint administrators have, in respect of the estate of the represented person, such of the functions provided for by this Act as the State Administrative Tribunal vests in him or them, or directs him or them to perform, in the administration order.
(2)An administrator may on behalf of a represented person execute all such documents and do all such things as are necessary for the performance of the functions vested in him.
(3)An action taken, decision made, consent given or other thing done by an administrator in the performance of the functions vested in him has effect as if it had been taken, made, given or done by the represented person and he were of full legal capacity.
Nature of the powers conferred on SAT
Section 13 of the GA Act invests SAT with the power to appoint a guardian or an administrator. Once a guardian or administrator is appointed, the powers that may be exercised by that guardian or administrator are set out in the GA Act, or, in the order. It is not for the Tribunal to exercise the powers conferred on the guardian or administrator.
Orders made by single members of the Tribunal
SAT has made a number of orders in relation to the represented person.
On 13 October 2016, Member Child made an order appointing the appellant plenary administrator of the represented person's estate.[2]
[2] SAT Hearing Book 77.
On 13 November 2018, Member Le Miere made administration and guardianship orders amending the orders dated 13 October 2016. It is unnecessary to reproduce those orders in full. In short, the Tribunal appointed the appellant plenary administrator of the represented person's estate and limited guardian to make treatment decisions for the represented person. The Tribunal appointed the Public Advocate limited guardian to determine what contact the represented person should have with others.[3]
Orders of 7 August 2019
[3] SAT Hearing Book 78 ‑ 79.
On 7 August 2019, Member Le Miere made the following administration and guardianship orders:[4]
[4] SAT Hearing Book 82 ‑ 83.
The Tribunal declares that the represented person, … is:
(a)unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all of her estate;
(b)in need of an administrator of her estate;
(c)incapable of looking after her own health and safety;
(d)unable to make reasonable judgments in respect of matters relating to her person; and
(e)in need of a guardian.
The Tribunal orders:
The administration order dated 13 November 2018 is confirmed as follows:
1.[The appellant] is appointed plenary administrator of the represented person's estate with all the powers and duties conferred by the Guardianship and Administration Act 1990 (WA).
2.The administrator is authorised to expend up to a total amount of $1000.00 per annum on gifts on behalf of the represented person.
The guardianship order dated 13 November 2018 is amended as follows:
3.[The appellant] is appointed limited guardian of the represented person with the following function:
(a)To make treatment decisions for the represented person, subject to Division 3 of Part 5 of the Guardianship and Administration Act 1990 (WA)
4.The Public Advocate of David Malcolm Justice Centre, Level 23, 28 Barrack Street, Perth, Western Australia be appointed limited guardian of the represented person with the following function:
…
(b)To determine what contact, if any, the represented person should have with others and the extent of that contact.
5.The Tribunal approves 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.
6.The administration and guardianship orders are to be reviewed by 6 August 2020.
28 October 2019 application
On 28 October 2019, W filed an application under s 80(6a) of the GA Act entitled 'Application to review a decision of the Public Trustee related to an examination of accounts'.[5] The application cited the incorrect provision of the GA Act and was made on the wrong form.
[5] SAT Hearing Book 1 ‑ 5.
Senior Member Spillane made an order that the application dated 28 October 2019 be taken to have been commenced as an application under s 86(1) of the GA Act for a review of the guardianship order of 7 August 2019.
Section 86(1)(c) of the GA Act provides:
The State Administrative Tribunal may at any time on the application of a represented person or a guardian review a guardianship order or an administration order.
Under the heading 'Order Sought', the application stated:[6]
Re: Residential Respite for [the represented person]
An Urgent Hearing is respectfully requested so that the OPA can be ordered to cancel all further prearranged respite dates at … against the request of Member Le Miere in the Hearing of 7 August 2019 and arrange other central location options between … for agreement by other family members (such additional specific order to also include an agreeable central location for future permanent accommodation). We feel that … of the OPA has been complicit and acted indiscriminately and defiantly in consenting to respite at Mindarie against the request of Member Le Miere of the State Administrative Tribunal.
3 December 2019 application
[6] SAT Hearing Book 4.
On 3 December 2019, W made an application under s 40(1) of the GA Act to appoint a guardian and administrator.[7]
[7] SAT Hearing Book 6 ‑ 14.
The application sought the appointment of the Public Trustee and another as joint administrator, and W as guardian.
Orders of 3 March 2020
In response to the two applications respectively dated 28 October 2019 and 3 December 2019, Member Le Miere made the following orders on 3 March 2020, following a hearing on that day:[8]
[8] SAT Hearing Book 84 ‑ 86.
The Tribunal declares that the represented person, … is:
(a)unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all of her estate; and
(b)in need of an administrator of her estate.
The Tribunal orders:
1.Leave is granted to the applicant to apply for the review.
Administration
The administration order dated 7 August 2019 is revoked and substituted with an order in the following terms:
2.The Public Trustee of 553 Hay Street, Perth, Western Australia is appointed plenary administrator of the represented person's estate with all the powers and duties conferred by the Guardianship and Administration Act 1990 (WA).
3.The administrator is authorised to expend up to a total amount of $500 per annum on gifts on behalf of the represented person.
4.The administration order is to be reviewed by 2 March 2025.
The Tribunal declares that the represented person, … is:
(a)incapable of looking after her own health and safety;
(b)unable to make reasonable judgments in respect of matters relating to her person;
(c)in need of a guardian.
…
The Tribunal orders:
1.Leave is granted to the applicant to apply for the review.
Guardianship
The guardianship order dated 7 August 2019 is revoked and substituted with an order in the following terms:
2.The Public Advocate of David Malcolm Justice Centre, Level 23, 28 Barrack Street, Perth, Western Australia is appointed limited guardian of the represented person with the following functions:
(a)To decide where the represented person is to live, whether permanently or temporarily;
(b)To make treatment decisions for the represented person, subject to Division 3 of Part 5 of the Guardianship and Administration Act 1990 (WA);
(c)To determine what contact, if any, the represented person should have with others and the extent of that contact; and
(d)To determine the services to which the represented person should have access.
3.The Tribunal approves 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.
4.The guardianship order is to be reviewed by 2 March 2025.
Review by the Full Tribunal
On 19 March 2020, the appellant made an application under s 17A of the GA Act for a review of the orders made by Member Le Miere on 3 March 2020.
Section 17A(1) of the GA Act provides:
Where the State Administrative Tribunal consisting of one member makes any determination, a party who is aggrieved by the determination may request the President to arrange for a Full Tribunal to review the determination, and the President shall comply with any such request.
A review under s 17A of the GA Act involves a fresh consideration of the matters that were before the single member and of any new material whether or not it existed at the time of the original decision. The review is to be by way of a hearing de novo.[9]
[9] SAT Act, s 27(1).
The task of the Tribunal on review is not to review the process before the single member, but rather to make the correct and preferable decision at the time of the decision upon the review.[10]
[10] SAT Act, s 27(2); see also JNS [2017] WASAT 162 [8]; DTM v JMM (2009) 68 SR (WA) 10; [2009] WASAT 203 [35].
The Tribunal is not limited by the reasons for decision of the single member, or any grounds for review set out in the application.[11]
[11] SAT Act, s 27(3).
The Tribunal may affirm, vary or set aside the decision and substitute its own decision, or send the matter back to the decision‑maker for reconsideration.[12]
Evidence before the Full Tribunal
[12] SAT Act, s 29(1).
The hearing before the Full Tribunal was attended by the appellant, the appellant's counsel, the appellant's husband, the delegated guardian from the Office of the Public Advocate, W, G, G's wife, L and LP. All but LP gave evidence to the Tribunal.
In addition to the material before the single member, the following additional evidence was filed in the Full Tribunal:
(a)the affidavit of the appellant sworn 4 May 2020;
(b)the affidavit of Yvonne Cream, Occupational Therapist, sworn 5 May 2020, attaching an Occupational Therapy Home Assessment Report dated 7 October 2019;
(c)the affidavit of JL (granddaughter of the represented person) sworn 4 May 2020;
(d)the affidavit of RB (stepdaughter of the appellant) sworn 2 May 2020;
(e)the affidavit of SJ (granddaughter of the represented person) sworn 2 May 2020; and
(f)the affidavit of G sworn 2 May 2020.
What did the Full Tribunal have to determine?
Upon a review of a guardianship order or an administration order, the Tribunal may confirm, amend, revoke and/or substitute another order.[13]
[13] GA Act, s 90(1).
The appellant sought the following orders:
1.That [the appellant] be appointed as Plenary Administrator and Guardian of [the represented person] with all powers and duties conferred by the Act.
2.That [the represented person] remain living in her home at [the appellant's] residence at …, Mindarie in the State of Western Australia.
On 25 March 2020, the represented person was admitted to a nursing home at the direction of the Public Advocate's delegate.
A Full Tribunal heard the application on 11 May 2020.
Decision of the Full Tribunal
The Full Tribunal recognised that the key issue for determination was who should be appointed as guardian and administrator and what powers should be granted to those persons.[14]
[14] ts 41 (11/05/2020).
The Full Tribunal identified that the appellant was willing to act as guardian, and potentially that W was willing to act as guardian.[15]
[15] ts 18 (11/05/2020).
The Full Tribunal referred to the evidence of the family members which expressed vastly differing views as to the best interests of the represented person, and concluded that there was evidence of 'clear and uncontested' family conflict and disunity with respect to such decisions as to where the represented person was to live, what services she is to receive and her contact with others.[16]
[16] ts 42 ‑ 43 (11/05/2020).
On the basis of this conflict and the apparent inability of either proposed guardian to make decisions in the best interests of the represented person and to act in such a way as to maintain her supportive familial relationships, the Full Tribunal decided that neither the appellant nor W were suitable people to be appointed guardian, and confirmed the appointment of the Public Advocate as the guardian of last resort.[17]
[17] ts 43 (11/05/2020).
Having decided to reappoint the Public Advocate as limited guardian, the Tribunal appointed the Public Trustee as plenary administrator on the basis that the appellant, although willing to act, was not otherwise suitable as there would be a compatibility issue between the appellant and the Public Advocate.[18]
[18] ts 43 ‑ 44 (11/05/2020); GA Act, s 68(1)(d), (3)(a).
The Full Tribunal made the following administration orders:[19]
1.The Tribunal declares that the represented person, … is:
(a)unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all of her estate; and
(b)in need of an administrator of her estate.
[19] Administration orders of the Full Tribunal, 11 May 2020.
The Tribunal orders:
Administration
The administration orders of the Tribunal dated 3 March 2020 are affirmed. For the avoidance of doubt the orders are as follows:
2.The Public Trustee of 553 Hay Street, Perth, Western Australia is appointed plenary administrator of the represented person's estate with all the powers and duties conferred by the Guardianship and Administration Act 1990 (WA).
3.The administrator is authorised to expend up to a total amount of $500 per annum on gifts on behalf of the represented person.
4.The administration orders are to be reviewed by 2 March 2025.
Further, the Full Tribunal made the following guardianship orders:[20]
[20] Guardianship orders of the Full Tribunal, 11 May 2020.
The Tribunal declares that the represented person, … is:
(a)incapable of looking after her own health and safety;
(b)unable to make reasonable judgments in respect of matters relating to her person;
(c)in need of oversight, care or control in the interests of her own health and safety; and
(d)in need of a guardian.
The Tribunal orders:
Guardianship
The guardianship orders of the Tribunal dated 3 March 2020 are affirmed. For the avoidance of doubt the orders are as follows:
1.The Public Advocate of David Malcolm Justice Centre, Level 23, 28 Barrack Street, Perth, Western Australia is appointed limited guardian of the represented person with the following functions:
(a)To decide where the represented person is to live, whether permanently or temporarily;
(b)To make treatment decisions for the represented person, subject to Division 3 of Part 5 of the Guardianship and Administration Act 1990 (WA);
(c)To determine what contact, if any, the represented person should have with others and the extent of that contact; and
(d)To determine the services to which the represented person should have access.
2.The Tribunal approves 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.The guardianship orders are to be reviewed by 2 March 2025.
Appeal to this Court
Under s 19 of the GA Act, by leave as provided under div 3 of the Act, an appeal lies to a single judge of this Court from a determination of the Tribunal when constituted by three members not including the President.
Leave to appeal should only be granted if it is shown to the court's satisfaction that there is a prima facie case justifying an appeal on one or more grounds listed in s 21 of the GA Act.[21] Section 21 of the GA Act provides:
[21] GA Act, s 22.
An application for leave to appeal may only be made on a ground or grounds coming within the following –
(a)that the State Administrative Tribunal -
(i)made an error of law or fact, or of both law and fact; or
(ii)acted without or in excess of jurisdiction,
or did both of those things; or
(b)that there is some other reason that is sufficient to justify a review of the determination.
Section 30 of the GA Act sets out the powers of the court with respect to an appeal:
(1)Upon the hearing of an appeal, the Court may do one or more of the following –
(a)confirm, set aside, or vary the determination of the State Administrative Tribunal and any order made or thing done as a result of the determination;
(b)substitute a determination that could be made under this Act;
(c)remit the case for redetermination by the State Administrative Tribunal, with or without any direction to the Tribunal;
(d)exercise any power that the Court may exercise on an application for certiorari, mandamus, prohibition, or habeas corpus;
(e)make such other order as it thinks fit, including an order as to costs.
(2)The Court is not required to set aside, quash or vary a determination of the State Administrative Tribunal because the Tribunal omitted to make any necessary finding if the facts or evidence -
(a)in substance support the determination; or
(b)justify the finding,
and the Court may instead under subsection (1) either vary the determination or substitute another determination for it.
(3)The State Administrative Tribunal may take all such steps as are necessary to give effect to any decision of the Court of a kind mentioned in subsection (1)(c).
The appeal relies upon rights of appeal under s 19. The appeal is from the Full Tribunal Decision and not from the orders of the single member made on 3 March 2020, with a review of the single member's decision having been carried out by the Full Tribunal.
The Rules of the Supreme Court 1971 (WA) O 65 r 8 provides that an application governed by O 65, which this application is, will be by way of rehearing. A court dealing with an application for leave to appeal or an appeal by way of rehearing can exercise its powers only if satisfied that there was an error on the part of the original decision‑makers.[22]
[22] Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 203; see also Lackovic v Insurance Commission of Western Australia (2006) 31 WAR 460, 477 ‑ 478, Buss J (Steytler P agreeing).
The court must conduct a rehearing based on the material before the Tribunal and any further material admitted into evidence.[23]
[23] GA Act, s 29.
Grounds of appeal
The appellant's grounds of appeal are as follows:[24]
[24] Appellant's Further Re-Amended Grounds of Appeal, 16 October 2020, 1 ‑ 4.
1.That the State Administrative Tribunal (comprising three members) (The Tribunal) erred in law in finding its view was unchanged from that taken by the single member on the 3rd March 2020. In determining who should be appointed guardian, the Tribunal was required:
(a)To impose the least restrictions possible on the person's freedom of decision and action (s 4(6) of the Guardianship and Administration Act 1990) (The Guardianship Act); and
(b)Should seek to ascertain the views and wishes of [the represented person] as expressed in her previous actions (s 4(7)).
The Tribunal ignored s 4(6) and s 4(7) and in particular the wishes of [the represented person] as expressed prior to her present disabled condition, as set out in the affidavits … and thereby erred in law.
2.That the Tribunal erred in law and in fact by uncritical acceptance of the evidence for [H] to be appointed limited guardian and by adopting or failing to address the single member's reliance upon the report of [H] of the Public Advocates's office (the report) which did not:
(a)represent an impartial view and contained false and misleading statements;
(b)address medical evidence about the represented person's wishes;
(c)set out [H's] credentials to make sound guardianship decisions;
(d)provide a copy of the report to the applicant before 3rd March 2020 hearing;
(e)consider the evidence that the Mindarie unit was safe for [the represented person];
(f)take into account as limited guardian the matters in s 51(2)(b); s 51(2)(e); s 51(2) and 51(2)(h) of the Guardianship Act, which matters were contained in the affidavit of [the appellant].
(g)analyse the evidence available relating to [the represented person's] ability to see her children and others at the Mindarie Unit.
(h)address the evidence that it was in [the represented person's] best interest to remain in the Mindarie unit despite the contrary views of [L] and [W];
(i)take into consideration the opinion of a geriatric practitioner (although previously invited to do so).
3.That the Tribunal committed jurisdictional error in failing to have regard to the matters referred to the grounds 1 and 2: (a) in grounds 1 and 2 which evidence went to the issue of whether the applicant should be appointed limited guardian; (b) in failing to address the nature of the two applications, which were before the single member, from which [the appellant] sought review by the Tribunal.
4.That the Tribunal erred in law and fact in finding that [the appellant] should not act as administrative guardian which position she occupied prior to 3rd March 2020. The Tribunal said that there would be incompatibility between [the appellant] acting as administrator and the Public Advocate. However, [the appellant's] contention was that [H] was not suitable for the delegated role as Public Advocate and there would be no incompatibility in [the appellant] acting as administrator if that was found to be so.
Ground 1
Ground 1 states:[25]
[25] Appellant's Grounds of Appeal, 1 ‑ 2.
1.That the State Administrative Tribunal (comprising three members) (The Tribunal) erred in law in finding its view was unchanged from that taken by the single member on the 3rd March 2020. In determining who should be appointed guardian, the Tribunal was required:
(a)To impose the least restrictions possible on the person's freedom of decision and action (s 4(6) of the Guardianship and Administration Act 1990) (The Guardianship Act); and
(b)Should seek to ascertain the views and wishes of [the represented person] as expressed in her previous actions (s 4(7)).
The Tribunal ignored s 4(6) and s 4(7) and in particular the wishes of [the represented person] as expressed prior to her present disabled condition, as set out in the affidavits submitted by [the appellant] and [G] and thereby erred in law.
The appellant's submissions on Ground 1
In relation to Ground 1, the appellant submitted:[26]
[26] Appellant's Submissions, 15 October 2020.
14.In determining what the best interests of a represented person are, the Tribunal is required to observe the principles set out in s 4 of the GA Act (s 4(1)). Once it is established under s 4(2) and s 4(3) that the represented person is not capable of making reasonable judgements, as was the case with [the represented person] in this case, the Tribunal is to consider the matters in s 4(5), s 4(6) and s 4(7) of the GA Act, which are to include whether a limited guardian would be sufficient (s 4(5)); and an order appointing a limited guardian shall impose the least restrictions possible on the person's freedom of decision and action (s 4(6)), and the tribunal 'shall, as far as possible, seek to ascertain the view of the person concerned…as gathered from the person's previous actions' (s 4(7)). It was not in dispute before the Deputy President or the Member Le Miere that [the represented person] requires a plenary administrator and limited guardian and does not have a present capacity to make decisions about her estate or her person as stated by the Deputy President. The Deputy President asserted that the current views of [the represented person] were unknown whilst the Member Le Miere had previously said they were 'variable'.
15.However, the Appellant provided oral and written submissions to the Full Tribunal about information contained in the earlier medical reports relating to [the represented person's] wishes to support the consideration of the Tribunal, 'as gathered from her previous actions' (GA Act, s 4(7)). It was submitted those wishes about where [the represented person] should live needed to be taken into account by the Tribunal because an appointment of a limited guardian to determine this issue should impose 'the least restrictions possible' (GA Act, s 4(6)).
16.The Tribunal should have ascertained from [the represented person's] actions and her comments to independent doctors on earlier occasions, as documented in the written submissions and affidavit evidence put to the Tribunal, that she had been staying contentedly in the Mindarie Home with the appellant since 2018. It had been recorded by Dr Ting and Dr Kaury-Shankar, Consultant Physician at the Department Rehabilitation & Aged Care, Sir Charles Gardiner Hospital upon reviewing [the represented person] in October 2018, that [the represented person] and the appellant 'are managing well… now that [the represented person] has moved in with [the appellant]'.
17.Dr Mulholland, treating Physician, saw [the represented person] on the 12 June 2019 and recorded that she 'is happy with the care received by [the appellant]'.
18.Dr Loh, Consultant Geriatrician, said [the represented person] told him on 12 November 2019 that [her] preferred option is to live on her own and of her children, she prefers living with the Appellant. On 28 April 2020, he writes that social distancing and isolation reduces the risk of COVID-19 in older people, which is more feasible by [the represented person] living with the Appellant at the Mindarie Home rather than living at Regis with being in contact with several staff and other residents.
19.Louise Bauer, Senior Client Care Advisor of Juniper Aged Care which provided [the represented person] with respite, as recently as 12 December 2019 recorded that [the represented person] 'is happy with current living arrangements' in the Mindarie Home and her health and safety were not at risk.
20.It is submitted that in determining what is in the best interests of [the represented person], the Tribunal subordinated her interests as earlier expressed, to the interests of the two other family members namely [W] and [L] ('Sisters'), being daughters of [the represented person] and sisters to the Appellant who do not wish to visit her at the Mindarie Home, although freely able and invited by the appellant to do so.
21.It is submitted that neither Member Le Miere nor the Full Tribunal determined whether the Sisters had a valid reason that prevented them from visiting their mother at the Mindarie Home, and that the Sisters in fact, did not have a valid reason.
22.In elevating the existence of family disunity about guardianship, and in ceding to the wishes of the Sisters to move their mother to a nursing home as expressed by them to the Full Tribunal (a view endorsed by [H]), and in permitting those views to prevail over those previously expressed by [the represented person] herself to the doctors, the Full Tribunal misdirected itself in law.
23.The Full Tribunal failed to direct its mind to the mandatory requirements of s 4(7) of the GA Act, insofar as it was a requirement to consider [the represented person's] wishes as expressed by her at earlier times to the independent doctors. The views expressed to the doctors had also been expressed by [the represented person] to the Appellant herself. Those wishes of [the represented person] take precedence over the judgment of the OPA delegate and any inconvenience perceived by the Sisters travelling to see their mother in Mindarie. The Full Tribunal erred in failing to take account of [the represented person's] earlier expressed views and limiting its consideration to the present, and in then finding there was no evidence to infer, 'what it is she would like or want in the circumstances'.
24.[The represented person] expressed her wishes in the hearing on 13 November 2018 that she wants the Appellant to make the decision where [the represented person] lives as she says 'because I just trust that…I have more things to do with her…and I thought we would just, sort of, very close together'. [The represented person's] wishes were also confirmed by Ms Wilson, the then delegate of the OPA, who consulted [the represented person] on her wishes regarding the living arrangements.
25.Nor did either Tribunal give consideration, as stipulated in s 4(6) of the GA Act, to the greater freedom of action which [the represented person] would enjoy at her Mindarie Home over remaining in a nursing home. Numerous beneficial activities that [the represented person] previously engaged in while living in her Mindarie Home were set out in the affidavit of [the appellant] sworn on 4 May 2019 at paragraphs 29, 30, 31, 32 - 42; Annexure 4(a) and 4(b). Both s 4(6) and s 4(7) of the GA Act are mandatory considerations and therefore the Full Tribunal was required to consider their application. (footnotes omitted)
The Attorney General's submissions
In relation to Ground 1, the Attorney General submitted:[27]
[27] Intervenor's Outline of Submissions, 23 October 2020.
45.While there is an obligation on the Tribunal to seek to ascertain the views and wishes of the person, those views and wishes will not always be able to be ascertained.
46.The requirement in s 4(7) of the GA Act has been characterised by the Tribunal as 'simply, an inquiry in relation to certain facts.'[28] The Tribunal found:
[28] GS [2018] WASAT 72 [40].
Although it is not expressly stated in s 4 of the GA Act, it is implicit that, if the Tribunal is able to obtain the views and wishes of the person concerned, then those views and wishes are relevant matters to be taken into account in reaching a determination. This is no more than an application of an aspect of the law to the ascertained facts.[29]
47.The Tribunal in this matter expressly considered whether the views and wishes of [the represented person] could be ascertained. [The represented person] herself could not provide express instructions due to her medical condition. The Tribunal received oral and written evidence as to [the represented person's] previous expressions of her views as to where she wanted to live[30] (which were varied and inconsistent), but not as to who would be guardian. Ultimately, the Tribunal was not persuaded that [the represented person's] views and wishes could be ascertained.[31]
48.The appellant's submission that the Tribunal erred in law in its consideration of s 4(6) of the GA Act is misconceived. The principle does not require the Tribunal to consider which proposed guardian will make decisions that impose the least restrictions on [the represented person's] freedom of decision and action.
49.The Tribunal had regard to the principle in s 4(6) in making a limited guardianship order in only those areas of [the represented person's] life where a need for a substitute decision-maker had been established.
50.Accordingly, ground 1 does not demonstrate error. (some footnotes omitted)
Analysis
[29] GS [2018] WASAT 72 [40].
[30] ts 30, 32 (11/05/2020); Affidavit of Jade Lempochner sworn 4 May 2020 [7], Affidavit of Shani Jose sworn 2 May 2020 [8].
[31] ts 42 ‑ 43 (11/05/2020).
Section 4(2) of the GA Act provides that the primary concern of SAT shall be the best interests of any represented person, or of a person in respect of whom an application is made. Essentially, this involves a balancing exercise.
It was apparent from the hearings before the single member and the Full Tribunal that there was a family rift concerning who should be appointed guardian for the represented person, where she should live and who should have contact with.[32]
[32] SAT Hearing Book, 142 ‑ 143; ts 42 (11/05/2020).
Section 44(2) of the GA Act provides that in determining who is suitable to be appointed as guardian, the Tribunal shall take into account the desirability of preserving existing relationships within the family of the person in respect of whom the application is made.
The appellant relied heavily on two principles set out at s 4 of the GA Act namely:[33]
(1)that the Tribunal 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: s 4(7); and
(2)that an order appointing a guardian or administrator shall be in terms that impose the least possible restrictions on the person's freedom of decision and action: s 4(6).
[33] See Appellant's Submissions, 5 – 7.
The represented person did express a view as to who should make decisions on her part.[34] However, that view was expressed when she already had cognitive decline related to her Alzheimer's disease.[35]
[34] ts 5 (13/11/2018).
[35] ts 4 (13/11/2018).
The represented person had previously expressed her view to W that she wished to live in a nursing home.[36] The appellant admitted that the represented person had stated that her preference was not to live with one of her children but to live in an aged care facility.[37] The represented person expressed to an officer of the Public Advocate that she thought 'she jumped the gun' with that decision.[38]
[36] ts 13 (13/11/2018).
[37] ts 9 (13/11/2018).
[38] ts 33 (13/11/2018).
Dr Loh's report of 12 November 2019 stated that the represented person 'is prepared to move if it would improve the situation with her children' and 'her best preferred option is to live on her own'.[39]
[39] Affidavit of the Appellant sworn 4 May 2020, 64.
Much of the evidence relied upon by the appellant does not in fact relate to the appointment of a guardian but rather to where the represented person should live, a decision not within the Tribunal's jurisdiction.
The appellant's submissions refer to the Deputy President's statement that the represented person's views were unknown.[40] However, it is important to state the exact terms of the Deputy President's statement:[41]
I have to say for the record that we do not know what the views of [the represented person] are in this regard. We've had a number of people expressing a view as to what her views and wishes might be, but the Tribunal is not persuaded that we actually know what it is that she would like or want in the circumstances'.
[40] Appellant's Submissions [14].
[41] ts 42 ‑ 43 (11/05/2020).
It is clear that the Full Tribunal directed its mind to the requirements of s 4(7).
The Tribunal was not required to determine whether W and L had a valid reason for not visiting the represented person at the Mindarie home. It is an impossible and unnecessary task for a Tribunal to sift through the ashes of family relationships to somehow attribute blame. This was clearly a dysfunctional family. The Full Tribunal's obligation was to act in the best interests of the represented person in appointing a guardian.
The appellant has misconceived the nature of the principle at s 4(6) of the GA Act that the Tribunal impose the least restrictions possible. Section 4(6) is not directed at ensuring that a represented person engages in 'beneficial activities'.[42] It relates to restrictions on a person's freedom to make decisions because they lack the capacity to make those decisions. The obligation on the Tribunal is to impose the least restrictions possible on the person's freedom and action in making decisions. To submit that a represented person might have more or less recreational activities available is somehow related to restrictions on their decision making is incorrect.
[42] Appellant's Submissions [25].
The Full Tribunal appointed the Public Advocate as a limited guardian. The Tribunal had plainly directed their mind to the requirements of s 4(6).
Once again, the Full Tribunal's obligation was to determine an appropriate guardian. It was for the guardian to determine where that person should live.
Ground 1 is not made out.
Ground 2
Ground 2 states:[43]
[43] Appellant's Grounds of Appeal, 2 ‑ 3,
2.That the Tribunal erred in law and in fact by uncritical acceptance of the evidence for [H] to be appointed limited guardian and by adopting or failing to address the single member's reliance upon the report of [H] of the Public Advocates's office (the report) which did not:
(a)represent an impartial view and contained false and misleading statements;
(b)address medical evidence about [the presented person's] wishes;
(c)set out [H's] credentials to make sound guardianship decisions;
(d)provide a copy of the report to the applicant before 3rd March 2020 hearing;
(e)consider the evidence that the Mindarie unit was safe for [the represented person];
(f)take into account as limited guardian the matters in s 51(2)(b); s 51(2)(e); s 51(2) and 51(2)(h) of the Guardianship Act, which matters were contained in the affidavit of the appellant.
(g)analyse the evidence available relating to [the represented person's] ability to see her children and others at the Mindarie Unit.
(h)address the evidence that it was in [the represented person's] best interest to remain in the Mindarie unit despite the contrary views of [L] and [W];
(i)Take into consideration the opinion of a geriatric practitioner (although previously invited to do so). (footnotes omitted)
The appellant's submissions
In relation to Ground 1, the appellant submitted:[44]
[44] Appellant's Submissions [26] ‑ [40].
26.As submitted in paragraph 12 above, Member Le Miere stated that [H's] report, 'is something I feel I can rely on quite heavily'. The foundation for Member Le Miere's decision to retain the OPA delegate as the limited guardian for [the represented person] was her acceptance of the observations of [H] contained in her report.
27.The Full Tribunal acknowledged that the Appellant's challenge was to the appointment of [H] as the limited guardian of [the represented person]. The Appellant's affidavit contended before the Full Tribunal the appointed delegate was not suitable to carry out the duties nominated by Member Le Miere, which duties included determining where [the represented person] should live and making treatment decisions. The Full Tribunal found that the powers conferred by Member Le Miere on the delegate were appropriate and their view 'remained unchanged' from that of Member Le Miere.
28.The Appellant's affidavit before the Full Tribunal refers to the concerns as to [H's] conduct of her powers at paragraphs 26 to 28 and 64 to 73. The Full Tribunal did not expressly refer to [H's] report nor to any of the Affidavit evidence, but said their view remained 'unchanged' from that of Member Le Miere. As stated, it was [H's] report that was largely relied upon in making the orders at the March 2020 Hearing, which were affirmed by the Full Tribunal.
29.This report was not shown to the Appellant before the March 2020 Hearing. It did not set out what credentials [H's] possessed to make sound guardianship assessments or decisions nor did Member Le Miere, who simply assumed this to be so by reason of her office, nor did the Full Tribunal query [H's] qualifications. [H's] report said nothing about [the represented person's] wishes as expressed on earlier occasions to the independent medical personnel or the Tribunal itself on previous occasions, nor did it address the medical evidence available at the time.
30.Neither the [H's] oral evidence nor the report of [H] in her capacity as limited guardian, address the best interests of [the represented person] by reference to s 51(2)(b) of the GA Act, which required the guardian as far as possible to encourage participation by [the represented person] in the community; s 51(2)(e) which required the guardian to take into account her wishes as expressed by her previous actions; s 51(2)(g) for the guardian to maintain relationships which [the represented person] had outside the family circle as well as within the family; and s 51(2)(h), to maintain her familiar religious environment and other lifestyle routines and associations. The Affidavit evidence of the Appellant before the Full Tribunal referred to the benefits of [the represented person] living in the general community as distinct from the nursing home and thereby participating in the community by attending social clubs and church as described in paragraphs 38, 39, 40, 41, and 42 of the Appellant's Affidavit sworn on 4th May 2020.
31The [H] report and her oral evidence referred to defects in the Mindarie Home without referring to an independent report of the Mindarie Home undertaken in October 2019, which only recommended some minor works and did not perceive the Mindarie Home to be unsafe for [the represented person]. The affidavit sworn 17 September 2020 and report of Gail Essery, an occupational therapist at Maximum Independent Occupational Therapist ('MIOT Report'), led as additional evidence, confirms the present safety of the Mindarie Home for [the represented person] to reside in.
32.There were false and misleading statements contained in the [H] report. It is said by [H] the aged care facility Aegis had withdrawn services for [the represented person] which appeared to be a result of verbal and written communications from the Appellant. What in fact happened is set out at paragraph 71 of the Appellant's Affidavit. The Appellant did not email Aegis, though the member of the Tribunal initially imputed this to her because it was alleged in [H's] report. In fact, it was [W] who had contacted Aegis.
33.The [H] report said that she was seeking information from Juniper regarding the Mindarie Home and whether there were safety concerns about the Mindarie Home, and she, [H], contended that the Mindarie Home was unsafe before the Full Tribunal. No support was given in the Occupational Therapy Report of 7 October 2019 for the contention made that the Mindarie Home was unsafe, rather the report suggested a few minor items to be replaced.
34.It was said in [H's] report that contact arrangements regarding [the represented person] appeared to be unreasonably withheld from the Sisters, without any reference to evidence to support this proposition. In fact, the Appellant had offered the Sisters a visiting protocol, and to vacate the Mindarie Home upon the attendance by the Sisters, which the Sisters chose not to avail themselves. The Sisters chose not to visit for reasons not explained nor substantiated. Further, [the represented person's] son, [G's] evidence to the Full Tribunal was that he told [H] the Sisters were never prevented from visiting their mother in the Mindarie Home yet [H] asserted this was not so without detailing evidence to support this.[45]
35.[H's] report omitted to mention that [H] had already advised the Appellant on 6 February 2020 that she considered it would be in the best interests to place [the represented person] in a residential aged care facility permanently and that the Appellant had opposed this course and suggested a Geriatric practitioner, appropriately qualified should decide in consultation with [the represented person] whether this should occur. [H] as limited guardian chose to proceed without such advice and to transfer [the represented person] to Regis nursing home on 25 March 2020, in the midst of the Covid-19 total lockdown with no visitors allowed to attend or support [the represented person] with the move.
36.The Full Tribunal hearing took place by telephone on 11 May 2020 but it was not until 7 August 2020, at the Appellant's request, that a leading Geriatrician, Dr Clarnette was able to assess [the represented person] and prepare an expert report ('Clarnette Report'), now submitted as additional evidence. Additionally, Ms Essery's MIOT Report leads evidence as to the current condition of the Mindarie Home which [H's] report impugned. If accepted, the Clarnette Report and MIOT Report, both by experts in their field refute the decision of [H] as limited guardian to place [the represented person] in a nursing home and her assertions in regard to the safety of the Mindarie Home.
37.Given the Sisters' views about who should have the limited guardianship powers, which oppose the views of the Appellant and [G], it was open to [H], as the limited guardian to obtain a report from a genuine, independent and informed geriatrician as had been proposed by the Appellant to [H] in February 2020, prior to making her report.[46]
38.Now a report has been obtained by a leading Geriatrician. It recommends that [the represented person] should be returned to her Mindarie Home.
39.The Full Tribunal had been asked by the Appellant to give consideration to [the represented person's] best interest in determining who should be the limited guardian with reference to the criteria in s 51(2) of the GA Act, which requires the guardian to encourage the person to live in the general community and, as much as possible, participate in the community; and to maintain supportive relationships; and to maintain her religious environment. These matters are all referred to in the Affidavit of the Appellant before the Full Tribunal. Aside from the question of family convenience for the Sisters to attend a nursing home rather than their mother's Mindarie Home, these other factors were not addressed by [H].
40.Due to Covid-19 and lockdown restrictions at the Regis nursing home, it has not been recently possible for the Appellant to facilitate an independent assessment by way of the Clarnette Report and MIOT Report. These expert reports demonstrate [H's] firm views as limited guardian about [the represented person's] best interests, specifically in regard to residence in a nursing home and the absence of safety in the Mindarie Home, are now shown to be misconceived. Further, [H] has not demonstrated any knowledge to justify the role to oversee [the represented person's] medical treatment. The Appellant told the Full Tribunal that she had no difficulty with the Sisters agreeing on the location for [the represented person] to undertake periods of respites. Further, if there was any difficulty in any proposal for access by the Sisters to the Mindarie Home, that function could be delegated to a genuinely impartial third party if her own guardianship function in that respect was deemed inappropriate.
The Attorney General's submissions
[45] Affidavit of Geoffrey Pritchard [29], [31]); Annexure TL8 to Affidavit of the Appellant's.
[46] Affidavit of the Appellant, Annexure TL3, TL4.
In relation to Ground 2, the Attorney General submitted:[47]
[47] Intervenor's Submissions [58] ‑ [59].
53.The Tribunal did not expressly rely on the evidence of the Public Advocate's delegate, nor the Public Advocate's Report, in coming to its decision.
54.Based on the evidence from multiple witnesses including the appellant, it was open to the Tribunal to conclude that there was 'clear and uncontested' family conflict and long term disunity between interested parties with respect to such decisions as to where [the represented person] is to live, what services she is to receive and her contact with others.
55.The statutory requirement for an appointed guardian to make decisions in the represented person's best interests involves and requires an objective determination to be made. In circumstances of entrenched family conflict, it is often the case that the Tribunal finds there is no suitable person to fulfil this role and it falls to the Public Advocate to be appointed guardian of last resort.
56.The Tribunal correctly observed that its role was to determine who makes the decisions, not what decisions are made.
57.The Tribunal took into account s 44(2)(a) of the GA Act and the principles in s 4 and determined that neither the appellant nor her sister were suitable to be appointed limited guardian for [the represented person].
58.The issue of who should be appointed is not to be resolved by determining who, out of the competing applicants and the Public Advocate, would be the better guardian, but by determining whether the appellant or [W] are suitable to be the guardian, as only if they are not suitable can the Public Advocate be appointed.
59.Accordingly, the Intervenor submits that it was entirely appropriate, and the evidence supported, the Tribunal's decision to appoint the Public Advocate as guardian of last resort and there is no demonstrable error. (footnotes omitted)
Analysis
Before commenting on the details of the appellant's submissions, it is worth making some general observations:
(a)a review under s 17A of the GA Act is a hearing de novo. The appeal to this court is from that decision, not from the single member's decision;
(b)counsel for the appellant did not cross-examine H, the delegate of the Public Advocate, before the Full Tribunal despite the fact that she was available to be cross examined and gave evidence. In those circumstances, to submit that 'there were false … statements contained in H's report'[48] is totally unacceptable;
(c)from the appellant's point of view H's report could have been described by appellant's counsel as 'misapprehending the facts' or 'inaccurate' to describe but a few terms rather than as false;
(d)H's report is not a judicial, or quasi-judicial, report;
(c)the Public Advocate was appointed guardian, not H. The Public Advocate was given power to delegate her powers. There is no jurisdiction in this court to review the decisions of the Public Advocate as to the person to whom she delegates her powers.
[48] Appellant's Submissions [32].
H gave oral evidence before the single member, as did the appellant. The single member was entitled to accept the observations of H contained in her report. To the extent that the Full Tribunal relied on the observations of the single member, H gave oral evidence before them and was not cross-examined.
The powers that were conferred on the Public Advocate were appropriate as the Full Tribunal found. They conferred those powers because of their finding, supported by the evidence, that the family was dysfunctional and that no family members were appropriate to be appointed as guardian or administrator.[49]
[49] ts 42 (11/05/2020).
In any event, H's report essentially related to the exercise of her duties as delegate of the Public Advocate. Although the Full Tribunal made no express reference to H's report, it was nevertheless plainly before the Tribunal, counsel for the appellant spoke to it and H gave evidence about it.
Even if H's report was not received by the appellant before 3 March 2020, the appellant certainly had it by the time of the Full Tribunal hearing.
There is no requirement, under the GA Act or otherwise for a delegate of the Public Advocate to set out their qualifications in a report. The Public Advocate is a statutory position created under the GA Act. The Public Advocate can be assumed to be qualified to make decisions as a guardian.
It was never in issue that the represented person required a guardian and administrator. In any event, H's report does refer to the medical evidence.[50]
[50] SAT Hearing Book, 50.
A report from a delegate is not required to address every issue referred to in the GA Act. The principal issue was the relations between the family and their ability to see the represented person. That is a decision for the Public Advocate as guardian, not the Tribunal.
Again, it is not the role of the Tribunal to make a decision about where the represented person is to live.
If H intended to make 'false' statements as the appellant submits, it is difficult to see why H would attach supporting emails to her report.[51] Even if a statement was inaccurate, that does not amount to a false statement. There is no suggestion that her views were not genuinely held. Counsel for the appellant did not cross examine H before the Full Tribunal as he was entitled to.
[51] See SAT Hearing Book, 52 ‑ 56.
Aegis Care's decision to withdraw was as a result of family members having 'opposite views and expectations for the care of their mother' and 'being placed in the middle of a family feud'.[52] Obviously differing views had been expressed by other factions within the family.
[52] SAT Hearing Book, 56.
To suggest that H's error as to who sent the email could amount to a 'false' statement without any other evidence is plainly wrong. The tenor of the report was plainly correct.
H was seeking information from Juniper about safety concerns. Again there is no suggestion that her concerns were not genuinely held.
If you need a protocol for family members to visit the represented person, there is plainly a problem. There was overwhelming evidence before the single member and the Full Tribunal that this was a dysfunctional family. The email from Aegis Care is a clear example of the problem.[53]
[53] SAT Hearing Book, 56.
H was the delegate exercising the powers of the Public Advocate. It was her decision as to where the represented person should live. It is not for the Tribunal to review how such decisions are made.
The appellant submitted that reports should have been obtained from various persons before the Public Advocate made a decision.[54] Dr Clarnette's report and Ms Essery's report were admitted into evidence but they are largely irrelevant, dealing respectively with where Dr Clarnette believes the represented person should live and the safety of the Mindarie home.[55] Again, these are matters for the guardian to decide, not the Tribunal. The Public Advocate's administration of her guardianship role would be untenable if every decision making process was subject to review. The GA Act does not compel such a conclusion.
[54] Appellant's Submissions [36] ‑ [37].
[55] See Affidavit of Dr Roger Clarnette sworn 23 September 2020; Affidavit of Gail Essery sworn 17 September 2020.
H was a genuinely independent third party. She is a delegate of the Public Advocate performing her duties as a member of the public service. The fact that an interested party, such as the appellant, may not agree with a decision does not evidence a lack of impartiality on the part of H.
In view of the above, Ground 2 is not made out.
Ground 3
Ground 3 states:[56]
That the Tribunal committed jurisdictional error in failing to have regard to the matters referred to the grounds 1 and 2: (a) in grounds 1 and 2 which evidence went to the issue of whether the applicant should be appointed limited guardian; (b) in failing to address the nature of the two applications, which were before the single member, from which the [appellant] …, sought review by the Tribunal.
The appellant's submissions
[56] Appellant's Grounds of Appeal.
In relation to Ground 3, the appellant submitted:[57]
41.It is submitted that the Tribunal committed jurisdictional error in that it did not engage with the contentions in ground one as to the principles in sections 4(6) and 4(7) of the GA Act and further did not address the criticism made of the evidence of the OPA delegate which were relevant to whether or not [H] should be re-appointed as limited guardian.
42.In failing to do so, it is submitted that the Tribunal did not discharge its statutory duty and acted in excess of its jurisdiction. In disregarding contentions in ground one, the matters referred to in s 4(6) and s 4(7) of the GA Act, which the statute required the Full Tribunal to take into account as a condition of jurisdiction going to the issue of the represented persons best interests, the Tribunal committed jurisdictional error where his Honour states if a Tribunal ignores relevant material it is required to consider or relies on irrelevant material the Tribunal's exercise of power is thereby affected and it exceeds its authority.
43.The two applications before Member Le Miere were brought by [W] but never pursued by her at the March 2020 Hearing or before the Full Tribunal. The Sisters instead aligned their claim with that of [H], although [H's] report was not shown to the Appellant before the hearing. The result was a reaffirmation on appeal of what Member Le Miere found, without reference to the affidavit evidence provided by the Appellant, or the Appellant's written submissions which sought to refute both the reasons and orders made by Member Le Miere. (footnotes omitted)
The Attorney General's submissions
[57] Appellant's Submissions [41] ‑ [43].
In relation to Ground 3, the Attorney General submitted:[58]
61.The Tribunal did not make a jurisdictional error and the Intervenor refers to [its submissions in relation to Ground 1].
62.A jurisdictional error is a failure to comply with one or more statutory preconditions for decision‑making to the extent that the decision which is made lacks the characteristics necessary for it to be given force and effect by the statute pursuant to which the decision‑maker purported to make it. Such error has not occurred in this instance.
63.Full submissions were made to the Tribunal by appellant's counsel in relation to the Public Advocate's Report and the Tribunal decided that there was disunity within the family. Most of the factual disputes are irrelevant except to confirm the need for an independent guardian.
64.Ground 3 also appears to assert error by the Tribunal in its characterisation of the applications for determination. The Tribunal correctly identified that its task was to review the determination of the single member to appoint the Public Advocate as the guardian and the Public Trustee as the administrator.
65.Ground 3 must fail. (footnotes omitted)
Analysis
[58] Intervenor's Submissions [60] ‑ [65].
As set out above, the Full Tribunal's decision correctly considered the relevant factors in coming to its conclusion. Much of the appellant's evidence and the submissions addressed matters related to the delegate's decision not to who should be appointed as guardian. The evidence established that there was no real alternative to the Public Advocate as guardian.
Ground 3 therefore fails.
Ground 4
Ground 4 states:[59]
That the Tribunal erred in law and fact in finding that [the appellant] should not act as administrative guardian which position she occupied prior to 3rd March 2020. The Tribunal said that there would be incompatibility between [the appellant] acting as administrator and the Public Advocate. However, the applicant's contention was that [H] was not suitable for the delegated role as Public Advocate and there would be no incompatibility in [the appellant] acting as administrator if that was found to be so.
The appellant's submissions
[59] Appellant's Grounds of Appeal, 3 ‑ 4.
In relation to Ground 4, the appellant submitted:[60]
[60] Appellant's Submissions [44] ‑ [50].
44.Prior to the March 2020 Hearing, the Appellant was the appointed Plenary Administrator of [the represented person's] estate. At the March 2020 Hearing this was altered, and the Public Trustee was appointed administrator although [H's] report stated the administrative order was not being reviewed at that hearing. The Public Trustee did not appear.
45.The member acknowledged there had been no suggestion of malfidence on the part of the Appellant as administrator but she said there is evidence that the Appellant had refused to cooperate with [H] in providing funds for review and had not given numbers for ongoing respite.[61]
46.The Appellant had no notice of this allegation by [H] which was contained in her report. Before the Full Tribunal, the Appellant explained in her Affidavit, sworn 4 May 2020, that she had not refused consent for funding. She had in fact obtained an occupational therapy report in October 2019 and when [H] requested a second occupational therapy report shortly thereafter, the Appellant, as administrator, queried the need for a second report, which would cost up to a further $800. The Appellant wanted the opportunity to meet with [H] to discuss first.
…
47.The Full Tribunal said it would not appoint the Public Trustee as administrator if there is somebody else willing and suitable for the role. The Tribunal said the Appellant was the only person putting herself forward as the administrator but the Tribunal had the same concerns that the single-member had, that there would be an incompatibility between the Appellant and [H].[62] The Tribunal believed that the Public Trustee should continue in its role.
48.The Tribunal's conclusions, that the Public Trustee should act was predicated entirely on [H's] suitability as the delegated public guardian, which was being challenged by the Appellant. If [H] was not suitable for that position, as the Appellant contended, there was no reason to suppose there would be incompatibility between whoever was appointed limited guardian whether it was the Appellant herself or someone else. There was no valid reason advanced why the Appellant should not continue in the administrative role she had consistently performed without criticism before 3 March 2020.
49.It is submitted the Full Tribunal was required to examine the accuracy of the contention made by [H] that she had been refused funding by the Appellant administrator. This was a basis of the single-member's decision. The Full Tribunal declined to examine the contentions of the Appellant in regard to this issue and merely accepted the member's view that there would be no cooperation with [H] and the Full Tribunal reaffirmed her as limited guardian. It is submitted that it was entirely appropriate for the Appellant to take the approach she did in relation to funding a report for the reason she explained in the Affidavit and, had [H] been impartial between the family members, it would have been only fair for her to explain what the Appellant actually said.
50.It was a vital issue here whether [H] was suitable to be the delegated limited guardian for [the represented person]. The Appellant's claim and affidavit (Affidavit of [the Appellant]) contended she was not. That issue, which would also determine whether the Appellant should continue as administrator, required the Full Tribunal to address [H's] actions and conduct, and the competing claims of the Appellant, and this did not occur. Errors in the fact-finding process resulted in the Full Tribunal failing to address properly the determination of the vital issue as to who should be the limited guardian, and this constitutes an issue of law. It is a failure to consider the correct legal question and constitutes a failure to exercise jurisdiction and thereby becomes an error of law (see Hardingham per Heenan J at [47] and cases there cited). (footnotes omitted)
The Attorney General's submissions
[61] ts 55.6 (03/03/2020).
[62] ts 49 (03/03/2020).
In relation to Ground 4, the Attorney General submitted:[63]
[63] Intervenor's Submissions [66] ‑ [71].
66.The GA Act allows the Public Advocate to delegate, with the approval of the Tribunal, her functions as a guardian or administrator.
67.By order dated 11 May 2020, the Tribunal approved the 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.
68.In determining who may be appointed guardian, the Tribunal is to take into account as far as is possible the compatibility of the proposed appointee with the person in respect of whom the application is made and with the administrator of that person's estate.
69.Similarly, in determining who may be appointed administrator, the Tribunal is to take into account as far as is possible the compatibility of the proposed appointee with the person in respect of whom the application is made and with the guardian of that person's estate.
70.The Tribunal in RM [2020] WASAT 4 underlines that actions of individual delegates are ultimately attributable to the Public Advocate herself, in saying:
[56] When appointed, the Public Advocate delegates her functions as guardian to a person employed by her: s 95(2) of the GA Act, although the ultimate responsibility for any decision must rest with the Public Advocate herself.
71.Accordingly, it is misconceived to say that the appellant could not work with [H] (the delegate) as she was not suitable for that position and inconsistent to submit that she could work with the Public Advocate. (footnotes omitted)
Analysis
The appellant's submissions are premised on the appellant being a suitable guardian and therefore a compatible administrator. The Full Tribunal found to the contrary. The Full Tribunal did not err in fact or in law.
Ground 4 therefore fails.
Application for leave to adduce fresh evidence
The appellant seeks to introduce and rely on two affidavits:
1.the affidavit of Dr Roger Clarnette sworn 23 September 2020; and
2.the affidavit of Gail Essery sworn 17 September 2020.
I admitted those reports into evidence. However, both of them relate to the decision of the guardian as to where the represented person should live and therefore of very limited value in determining the appeal.
As the Attorney General submitted, 'Dr Clarnette makes no adverse comments regarding the standard of care received by the represented person the aged care facility.'[64]
[64] Intervenor's Submissions [74].
In relation to the report of Ms Essery, it effectively concluded that for the represented person to live safely in the appellant's home, she requires 24/7 supervision and assistance to move around the appellant's residence.[65] The report concludes:[66]
The assessment of [the represented person's] performance and engagement in activities of daily living on 10/8/2020 indicates [the represented person] requires support to perform all activities of daily living. Although she is physically able to complete most transfers and to ambulate independently, observations of her cognitive abilities on the day of the assessment suggest she requires verbal prompting to initiate self-care tasks including toileting, changing incontinence aids, meal preparation, eating and maintaining a healthy daily routine. Without this support [the represented person] would most likely sit in a chair all day.
Due to the layout of the house … [the represented person] always requires stand by assistance and would be unsafe to be left alone in the house. She has previously been unable to use a personal safety alarm and would be unable to use a telephone to organise help if she required. It is unlikely she would know where the exit to her granny flat was if required to get out of the house independently in an emergency.
The main safety concern in the layout of your home is the internal stairs that lead to the kitchen and dining room, and although it is unlikely [the represented person] would initiate independent use of the stairs, due to cognitive decline her decision making is not reliable. This concern has been addressed by using gates to prevent access to the staircase however I believe supervision within the home is always required due to [the represented person's] inability to make decisions and recognise risk.
From my observations and opinion, [the represented person] would always require a carer to be aware of her movements wherever she resided due to her cognitive difficulties. Her performance on the day of the assessment indicates she is unlikely to independently initiate meal preparation or any of her activities of daily living without prompting and support and therefore the presence of the staircase and gates restricting access do not impact greatly on her ability to move around the home freely as she is unlikely to do this without someone supporting her.
[65] Intervenor's Submissions [74].
[66] Affidavit of Gail Essery, 13 ‑ 14.
If anything, Ms Essery's report confirms H's decision to place the represented person in an aged care facility where she can receive 24/7 care.
In any event, the evidence contained in the affidavits it is not sufficient to establish that the Tribunal erred.
The role of the Public Advocate
To perform her role effectively, the Public Advocate needs to delegate her powers to her employees. The Public Advocate is the guardian of last resort.
Delegates are often placed in the invidious position of having to act when different factions within a family have very firm views as to how the represented person should be taken care of. Very often, the differing factions within a family are beyond the point of listening rationally to the views of the other faction, or factions. This case demonstrates the dilemma that delegates face. The Public Advocate's delegates have a thankless task.
W was critical of the Public Advocate's previous delegate, describing the Office of the Public Advocate as complicit and having acted indiscriminately and defiantly in consenting to respite at Mindarie against the request of Member Le Miere. The appellant was critical of H in its submissions.
I have no doubt that the employees of the Public Advocate exercise their powers with the best interests of represented persons as required by the legislation. They are civil servants who have no interest in favouring one faction over the other. In many cases, the interests of differing factions will simply be irreconcilable.
The conduct of the appellant's counsel
Both in the grounds of appeal and in the appellant's submissions reference was made to 'false' statements on the part of H, an officer of the Public Advocate.[67] Those allegations are absolutely baseless.
[67] Appellant's Submissions [32]; Appellant's Grounds of Appeal, 2.
The fact that the allegations of falsity were baseless should have been immediately apparent to counsel for the appellant by asking the simple question: what possible motive could an officer of the Public Advocate have for making false statements to the Tribunal?
It should also have been apparent to a competent counsel that there was no basis for the allegations in the evidence.
In the course of the hearing, counsel for the appellant grudgingly withdrew the allegation of falsity. It should have been withdrawn the moment it was raised by the court, especially given that there were no grounds for making the allegation.
The officers of the Public Advocate work with great skill, often under difficult circumstances, acting in the best interests of the represented person while trying to manage the very passionate and strongly held opposing views of family members. They should not be subject to baseless allegations of making false statements under the protection of court proceedings.
The ethical obligation of counsel is to not inflame those views by including in the grounds of appeal and in the submissions baseless allegations of false and misleading statements.
The obligation is akin to the obligation of counsel not to plead allegations of fraud unless 'there is clear and sufficient evidence to support them'.[68] If a client insists that such allegations be included in the grounds of appeal or submissions then counsel should withdraw from the case.
[68] His Honour Judge Gething M, Joseph R and Curwood M, Civil Procedure Western Australia [20.9.2]; see also Associated Lesure Ltd (Phonographic Equipment Co Ltd) v Associated Newspapers Ltd [1970] 2 QB 450, 456; [1970] 2 All ER 754, 757.
The conduct of the appellant's counsel was unacceptable.
Orders
I make the following orders:
1.Leave to appeal is refused.
2.The appeal is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
SB
Research Associate to the Honourable Justice Curthoys
8 DECEMBER 2020
- AGLC
- TL v Office of the Public Advocate [2020] WASC 455
- Case
- [2020] WASC 455
- Decision Date
CaseChat Overview and Summary
The primary legal issues were whether the Public Advocate was the most appropriate person to act as the limited guardian of the represented person and whether the Public Trustee was the most suitable person to act as the plenary administrator of the represented person’s estate. The Court had to determine whether the decisions of the single member were unreasonable, unjust, or improperly made. The Court also needed to consider whether there was any error in law, such as a failure to take into account a relevant consideration, or an error in the exercise of a discretion, such as the choice of the Public Advocate and the Public Trustee.
The Court concluded that the single member had not erred in appointing the Public Advocate as the limited guardian and the Public Trustee as the plenary administrator. The Court found that the single member had considered all relevant factors, including the represented person’s needs, the suitability of the Public Advocate and the Public Trustee, and the costs of the administration. The Court held that the Public Advocate was a qualified and experienced entity that could provide the represented person with the necessary care and support, and that the Public Trustee was a reputable and efficient entity that could manage the represented person’s estate effectively. The Court also noted that the single member had approved the delegation of the Public Advocate’s functions to an officer or employee employed in the Office of the Public Advocate, which demonstrated the Public Advocate’s commitment to the represented person’s welfare.
The Court dismissed the appeal and upheld the orders of the single member. The Court ordered that the Public Advocate be appointed as the limited guardian of the represented person, with the specified functions, and that the Public Trustee be appointed as the plenary administrator of the represented person’s estate, with the specified powers and duties. The Court also ordered that the administration order and the guardianship order be reviewed by 2 March 2025.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
In response to the two applications respectively dated 28 October 2019 and 3 December 2019, Member Le Miere made the following orders on 3 March 2020, following a hearing on that day:[8][8] SAT Hearing Book 84 ‑ 86.The Tribunal declares that the represented person, … is:(a)unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all of her estate; and(b)in need of an administrator of her estate.The Tribunal orders:1.Leave is granted to the applicant to apply for the review.AdministrationThe administration order dated 7 August 2019 is revoked and substituted with an order in the following terms:2.The Public Trustee of 553 Hay Street, Perth, Western Australia is appointed plenary administrator of the represented person's estate with all the powers and duties conferred by the Guardianship and Administration Act 1990 (WA).3.The administrator is authorised to expend up to a total amount of $500 per annum on gifts on behalf of the represented person.4.The administration order is to be reviewed by 2 March 2025.The Tribunal declares that the represented person, … is:(a)incapable of looking after her own health and safety;(b)unable to make reasonable judgments in respect of matters relating to her person;(c)in need of a guardian.…The Tribunal orders:1.Leave is granted to the applicant to apply for the review.GuardianshipThe guardianship order dated 7 August 2019 is revoked and substituted with an order in the following terms:2.The Public Advocate of David Malcolm Justice Centre, Level 23, 28 Barrack Street, Perth, Western Australia is appointed limited guardian of the represented person with the following functions:(a)To decide where the represented person is to live, whether permanently or temporarily;(b)To make treatment decisions for the represented person, subject to Division 3 of Part 5 of the Guardianship and Administration Act 1990 (WA);(c)To determine what contact, if any, the represented person should have with others and the extent of that contact; and (d)To determine the services to which the represented person should have access. 3.The Tribunal approves 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. 4.The guardianship order is to be reviewed by 2 March 2025. On 19 March 2020, the appellant made an application under s 17A of the GA Act for a review of the orders made by Member Le Miere on 3 March 2020. Section 17A(1) of the GA Act provides:Where the State Administrative Tribunal consisting of one member makes any determination, a party who is aggrieved by the determination may request the President to arrange for a Full Tribunal to review the determination, and the President shall comply with any such request. A review under s 17A of the GA Act involves a fresh consideration of the matters that were before the single member and of any new material whether or not it existed at the time of the original decision. The review is to be by way of a hearing de novo.[9][9] SAT Act, s 27(1).