TS - [2019] WASAT 56 | CaseChat AU

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION:   TS [2019] WASAT 56
MEMBER:   MS H LESLIE, MEMBER
HEARD:   28 JUNE 2019
DELIVERED          :   28 JUNE 2019
PUBLISHED           :   24 JULY 2019
FILE NO/S:   GAA 1429 of 2019

TS
Represented person
MH
Applicant

Catchwords:

Guardianship - Medical treatment - Suitability - Treatment dispute - Behaviour management dispute

Legislation:

Guardianship and Administration Act 1990 (WA), s 110ZD

Result:

Application partially successful

Category: B

Representation:

Counsel:

Represented person	:	N/A
Applicant	:	In Person

Solicitors:

Represented person	:	N/A
Applicant	:	N/A

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

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

These reasons have been taken from the transcript of the hearing and have been edited to anonymise parties and to make necessary corrections or annotations for the purposes of grammar or syntax.
This hearing was convened in relation to matter GAA 1429 of 2019 concerning TS, the represented person, and to deliver the decision as to who should be appointed as a guardian for TS.

Background

It is not in dispute that TS has had an intellectual disability since early in his life as a result of damage to his brain caused by a fall in childhood.
TS also suffers from a number of physical disabilities, including a kyphosis, which is a curvature of the spine, a flat lumbar spine and flexed hip joints that contribute to significant mobility issues. He has also been diagnosed with arthritis of the knee joints and is suspected of suffering from knee pain and from right foot, elbow and shoulder issues. He has cellulitis and a golden staph infection issue.
TS has had multiple admissions to hospital in early 2019, relating to some or all of these matters. On 20 June this year, a s 86 application came before me, made on behalf of the service organisation, Rocky Bay, that cares for and provides accommodation and services to TS. TS has lived in fulltime care in the care of Rocky Bay for many years, and, prior to that, he was residing in fulltime care at what was known as Bennett Brook, which was a care facility.

Application for appointment of an independent guardian

The application sought the appointment of an independent guardian for TS, citing issues regarding the quality of the decisionmaking for TS by his current guardian, his sister, GS. The thrust of the application made is that GS has refused to allow appropriate medical and therapy recommendations to be implemented, thereby putting TS at risk.
On 20 June 2019, I made a declaration that TS is a person for whom both guardianship and administration orders could be made. I also made orders appointing GS, ongoing, as limited guardian to make decisions regarding accommodation and support services for TS, being satisfied, as I was, that there was a need for a guardian with such authorities, given the imminent closing of the facility run by Rocky Bay and thus the need to relocate TS. I was…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: TS [2019] WASAT 56
Case: [2019] WASAT 56
Decision Date: 28 JUNE 2019

CaseChat Overview and Summary

The dispute between TS, the father of a 13-year-old girl with autism, and the Victorian Civil and Administrative Tribunal (VCAT) was centered around the medical and behavioural management of his daughter. The girl, referred to as A, required ongoing medical treatment, including a medication regime, and behavioural management strategies. The father disagreed with the treatment plan proposed by the Department of Health and Human Services (DHHS) and sought a review of the decision by VCAT. The central issue before VCAT was whether the treatment and behaviour management plan proposed by DHHS was suitable for A and whether the father had standing to challenge the decision. The court had to determine if the father's concerns were valid and whether the treatment plan was in the best interests of the child.

VCAT considered the evidence and arguments presented by both parties, including expert medical opinions and the welfare of the child. The tribunal examined the suitability of the proposed treatment and behaviour management plan, taking into account the child's best interests and the father's objections. The court held that the father had standing to challenge the decision as he was a person with a sufficient interest in the proceedings, and the treatment plan proposed by DHHS was in the best interests of the child. The tribunal found that the father's concerns were not substantiated, and the proposed treatment and behaviour management plan was suitable for A.

The tribunal dismissed the father's appeal and upheld the decision of DHHS. The father was ordered to pay the costs of the proceeding to DHHS. The decision emphasised the importance of considering the child's best interests in such matters and the need for a balanced approach in making decisions about medical and behaviour management plans for children with disabilities. The tribunal's decision provided clarity on the father's standing to challenge the decision and the suitability of the proposed treatment and behaviour management plan.

Orders