TR
[2009] WASAT 157
•17 AUGUST 2009
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: HUMAN RIGHTS
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: TR [2009] WASAT 157
MEMBER: MS D DEAN (MEMBER)
MS C HILL (SENIOR SESSIONAL MEMBER)
MS J STANTON (SENIOR SESSIONAL MEMBER)
HEARD: 15 JULY 2009
DELIVERED : 17 AUGUST 2009
FILE NO/S: GAA 1295 of 2009
BETWEEN: TR
Represented Person
Catchwords:
Review of guardianship order No need for order Medical decisions can be made under s 119 Guardianship order revoked
Legislation:
Guardianship and Administration Act 1990 (WA), s 4, s 43, s 84, s 90, s 119
State Administrative Tribunal Act 2004 (WA), s 78
Result:
Guardianship order revoked
Category: B
Representation:
Counsel:
Represented Person : Self-represented
Solicitors:
Represented Person : Self-represented
Case(s) referred to in decision(s):
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
TR is a young woman with a mild intellectual disability who lives in her own accommodation with 24 hour care funded by Disability Services Commission. She visits and stays with her parents on weekends and public holidays. On 15 July 2009, the Tribunal reviewed an order made on 5 May 2000, appointing the parents as TR's limited guardians to make decisions in relation to her accommodation, work choices, her contact with others and her medical and dental treatment.
The Tribunal heard evidence that TR was no longer in need of a guardian to make decisions in relation to her accommodation that all agreed was now stable. Evidence was also provided that her contact with others and her work activities were being managed in her best interests by her carers and parents working together. There were no current medical decisions to make and in any event, the parents were authorised under s 119 of the Guardianship and Administration Act 1990 (WA) to make medical and dental treatment decisions on TR's behalf.
Based on the evidence before it, the Tribunal found there was no longer any need for an order as all TR's needs were being met informally.
Background
TR is a young woman with a mild intellectual disability who lives in her own accommodation with 24 hour care funded by Disability Services Commission. She visits and stays with her parents on weekends and public holidays. On 15 July 2009, the Tribunal reviewed an order made on 5 May 2000, appointing the parents as TR's limited guardians to make decisions in relation to her accommodation, her work, contact with others and medical and dental treatment.
These written reasons are provided at the request of TR's mother, pursuant to s 78 of the State Administrative Tribunal Act 2004 (WA) (SAT Act), and reflect the brief oral reasons given at the conclusion of the hearing on 15 July 2009.
Legislation
In accordance with s 84 of the Guardianship and Administration Act 1990 (WA) (GA Act), the Tribunal must review an order within a specified period not exceeding five years from the date of making the order.
Under s 90 of the GA Act, the Tribunal may, upon a review of an order, confirm, revoke or amend the order. The Tribunal may substitute another order for the revoked order. A review of an order is a de novo hearing, that is, the matter is heard again from the beginning.
In reviewing the appointment of a guardian, the Tribunal is required, by the provisions of the GA Act, to again make findings about the person's capacity and the need for a guardian as detailed in s 43:
Section 43 of the GA Act provides that, where the Tribunal is satisfied that a person in respect of whom an application for a guardianship order is made:
(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 …
The principles to be observed by the Tribunal when making determinations in relation to the review of a guardianship order are the same as those applied in relation to an application for a guardianship order and are set out in s 4 of the GA Act.
These principles are:
•making the decision in the best interests of the person;
•every person is presumed to be capable of making reasonable judgments in respect of his or her person unless proven otherwise;
•an order appointing a guardian should only be made if the needs of the person concerned cannot be met by other means that are less restrictive of their personal freedom of decision and action;
•if an appointment is made, a plenary guardian should only be appointed if the needs of the person concerned cannot be met by a limited appointment; and
•the Tribunal should, as far as possible, ascertain the views and wishes of the person concerned.
Section 78 of the SAT Act, allows for a party to request the reasons for a decision to be provided in writing. The request must be made within 28 days after the day on which the decision was given.
Findings and reasons
As was the case in previous hearings, there was no dispute in this hearing that TR lacks the capacity to make reasonable judgments and that she satisfies the criteria in s 43 of the GA Act. In coming to this conclusion, the Tribunal had before it evidence from previous hearings, as oral evidence provided in the current hearing from various parties and a report from Dr B, TR's general practitioner (GP) for the last 34 years, who assessed her as unable to make reasonable judgments in relation to any major aspects of her life.
Need for an order
Having displaced the presumption of capacity set out in the legislation, (s 4 of the GA Act), the appointment of a guardian requires the Tribunal to find there is a need for an order and that the needs of the person cannot be met by any means less restrictive of the person's freedom of decision and action other than making an order.
In this case, TR is well supported by her family and carers. In the past, concerns had been raised in relation to her contact with persons considered to have a detrimental influence on her. It was agreed at the hearing that this is no longer an issue and if it again becomes a concern, the family and carers feel it is one that they can manage informally, without the need for a guardianship order. Similarly, TR is well supported in her work endeavours by her family and carers who will continue to ensure that she has appropriate work options available to her.
Evidence was provided in relation to TR's current accommodation. She lives in her own home in the community with 24 hour carer support. TR's parents live nearby and provide additional support, which includes having TR stay with them on weekends and public holidays when paid care is not available to her. Evidence was provided that this is a permanent arrangement to TR's liking and there is no reason to think that it will not continue. The Tribunal is satisfied that these arrangements are working in TR's best interests.
The Tribunal heard evidence that TR has no ongoing health problems and has had little need for medical intervention in recent years. If a guardian was to be appointed for the purpose of making medical and dental treatment decisions, it is likely that this would be the parents. Evidence was provided in the hearing that the doctor, carers, and parents themselves, accept that the parents have the authority under s 119 of the GA Act to make medical and dental decisions on behalf of TR, thus negating the need for a guardian to be appointed for this purpose.
Based on the evidence before it, the Tribunal finds that there is no need for the appointment of a guardian. All TR's needs are currently being met in her best interests and can continue to be so without the need for a formally appointed guardian.
I certify that this and the preceding [18] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS D DEAN, MEMBER