VL v Mead Centre, Armadale Mental Health Service - [2011] WASCA 214

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: VL -v- MEAD CENTRE, ARMADALE MENTAL HEALTH SERVICE [2011] WASCA 214

CORAM: NEWNES JA
MURPHY JA

HEARD: 22 SEPTEMBER 2011

DELIVERED : 22 SEPTEMBER 2011

PUBLISHED : 30 SEPTEMBER 2011

FILE NO/S: CACV 107 of 2011

BETWEEN: VL
Appellant
AND
MEAD CENTRE, ARMADALE MENTAL HEALTH SERVICE
First Respondent
STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA
Second Respondent
STATE SOLICITORS OFFICE OF WESTERN AUSTRALIA
Third Respondent
HEALTH DEPARTMENT SOLICITORS OF WESTERN AUSTRALIA
Fourth Respondent
ARNOTT VILLAS, ST BARTHOLOMEWS HOUSE INC
Fifth Respondent

ON APPEAL FROM:
Jurisdiction : STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA
Coram :JUSTICE J A CHANEY (PRESIDENT)

MS D TAYLOR (SENIOR MEMBER)
MS J STANTON (SENIOR SESSIONAL MEMBER)

Citation :RS and ANOR and DV [2011] WASAT 144
File No :GAA 924 of 2011, GAA 1221 of 2011, GAA 1222 of 2011, GAA 1223 of 2011

Catchwords:

Practice and procedure - Application for leave to appeal against decision of State Administrative Tribunal - Interim application for stay of orders of Tribunal - No grounds shown for stay

Legislation:

Nil

Result:

Interim application dismissed

Category: B

Representation:

Counsel:

Appellant:     In person
First Respondent           :     Ms L A Eddy
Second Respondent       :     No appearance
Third Respondent         :     Ms L A Eddy
Fourth Respondent        :     Ms L A Eddy
Fifth Respondent          :     No appearance

Solicitors:

Appellant:     In person
First Respondent           :     State Solicitor for Western Australia
Second Respondent       :     No appearance
Third Respondent         :     State Solicitor for Western Australia
Fourth Respondent        :     State Solicitor for Western Australia
Fifth Respondent          :     No appearance

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

Chief Executive Officer, Department of Child Protection v C [2007] WASCA 172
Chief Executive Officer, Department of Child Protection v S [2007] WASCA 230
Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308
RS and ANOR and DV [2011] WASAT 144
VL v Mead Centre, Armadale Mental Health Service [2011] WASCA 213

JUDGMENT OF THE COURT: The appellant has filed an appeal notice seeking leave to appeal against a decision of the State Administrative Tribunal in which the Tribunal set aside an enduring power of guardianship and an enduring power of attorney made by the appellant's brother (DV) in favour of the appellant and other of his siblings, and appointed a limited guardian and an administrator for DV.
The appellant has applied for urgent interim relief, including a stay of the orders made by the Tribunal, orders preventing the medical treatment of DV by his current doctors, and damages. On 22 September 2011, we dismissed the application and said we would provide reasons for our decision. These are our reasons.

Background

The essential circumstances in which the proceedings came before the Tribunal are set out in its reasons for decision and they do not appear to be controversial.
DV, who is 37 years of age, has for some years been diagnosed as suffering from schizophrenia. He has been treated with anti-psychotic medication for that condition. The applicants before the Tribunal were case workers at the first respondent, a government mental health service. They applied for the appointment of an administrator and guardian for DV. In support of the application, a report was prepared by DV's treating psychiatrist.
When they learned that an application for appointment of a guardian and administrator was to be made, certain of DV's siblings, including the appellant, assisted him to prepare and execute an enduring power of guardianship and an enduring power of attorney. When that was brought to the attention of the applicants, the applicants applied, pursuant to s 110N(1)(a) of the Guardianship and Administration Act 1990 (WA), to set aside the enduring power of guardianship on the basis that DV lacked the capacity to execute that document.
We should mention that in the course of these events the appellant, the appointee under the enduring power of guardianship wrote, in that capacity, to the first respondent, purporting to terminate its services and to discharge DV into the care of a nominated general practitioner. The team treating DV declined to act on that instruction, no doubt based upon the view that the enduring power of guardianship was not valid because of DV's lack of capacity, and upon the treating team's belief as to DV's best interests.
The issues before the Tribunal, therefore, were whether the enduring power of guardianship was valid and whether a guardian and administrator should be appointed for DV.
The matter was heard by the Tribunal on 29 August 2011 and it delivered its decision on 9 September 2011: RS and ANOR and DV [2011] WASAT 144. The Tribunal found that DV lacked the capacity to execute the enduring power of guardianship and that it should be set aside. The Tribunal also revoked the enduring power of attorney. It concluded that DV lacked capacity to make decisions concerning his person and, to a degree, his finances, and that there was a need for the appointment of a limited guardian and an administrator. The Tribunal considered that in view of the level of conflict between DV's family members and his treating team, an independent decision‑maker should be appointed in relation to DV, at least while attempts were made to improve communication between those parties.
The Tribunal made the following orders:
1.There is a declaration that the Enduring Power of Guardianship made on 5 March 2011 is invalid.
2.The Enduring Power of Guardianship made on 5 March 2011 is revoked
3.There is a declaration that the represented person is:
(a)incapable of looking after his own health and safety;
(b)unable to make reasonable judgments in respect of matters relating to his person; and
(c)in need of a guardian
4.The Public Advocate of Level 1, Hyatt Centre, 30 Terrace Road, East Perth, Western Australia, be appointed limited guardian of DV with the following functions:
(a)to decide where the represented person is to live, whether permanently or temporarily;
(b)to decide with whom the represented person is to live;
(c)subject to Division 3 of Part 5 of the Guardianship and Administration Act 1990 (WA), to consent to any treatment or health care of the represented person; and
(d)to determine the services to which the represented person should have access.
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 Enduring Power of Attorney made on 5 March 2011 is revoked.
7.There is a declaration that the represented person is:
(a)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)in need of an administrator
The Tribunal reserved the appointment of the administrator until 22 September 2011, when it appointed two of DV's siblings (not including the appellant) as joint limited administrators.

The interim application

The appellant filed an appeal notice on 14 September 2011 in which she seeks to have each of those orders set aside. The appellant also filed an application for urgent interim relief. The orders sought by the appellant in that application were as follows:
1.Stay of execution, suspending the enforcement of Orders 1-8 handed down 9^th September 2011 in the State Administrative Tribunal, against [DV].
2.Order the respondents stop drugging [DV] with chemical compounds.
3.Order First Respondent stop treating [DV].
4.Order the respondents pay DAMAGES $750,000 to [DV], the Appellant, and the Appellants family for damages and trauma caused.
5.Grant leave to file and serve writ of summons indorsed with Statement of Claim CIV 2572 of 2011, set for full trial with jury;
6.If orders 2-4 not granted, remit District Court Action CIVO 1434 of 2011 to the Supreme Court WA, for full trial with jury.
7.Order [respondents] to pay costs of $10,000 to [DV] and Appellant.

Disposition of the application

Turning to the first order sought by the appellant, the general principles to be applied in determining whether a stay should be granted under s 106 of the State Administrative Tribunal Act2004 (WA) are those set out in Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308: see Chief Executive Officer, Department of Child Protection v C [2007] WASCA 172 and Chief Executive Officer, Department of Child Protection v S [2007] WASCA 230. They can sufficiently be summarised as follows.
A stay will not be granted unless special circumstances are shown. In order to obtain a stay it will ordinarily be necessary for an applicant to persuade the court that the stay is necessary to preserve the subject matter or the integrity of the proceedings, or that the refusal of a stay could create practical difficulties in respect of the relief which may be granted on appeal. If that can be demonstrated, the stay will generally still be refused unless it can be established that the appeal has ultimately reasonable prospects of success. And even if that hurdle can be overcome, the stay may still be refused where it appears that the balance of convenience does not lie in favour of the applicant.
I would note, however, that those principles, while they provide guidance in the exercise of the discretion, are not inflexible or necessarily exhaustive.
There is nothing in the appellant's affidavit in support of the application which is capable of providing grounds for a stay of the Tribunal's orders. In the first place, there is nothing to suggest that the appellant has reasonable prospects of success on the appeal. The appellant requires leave to appeal and an appeal lies only on a question of law: State Administrative Tribunal Act, s 105. No question of law has been identified by the appellant and none is apparent from the affidavit or from any of the submissions put by the appellant on the hearing of the application.
The appellant's affidavit, and her submissions before us, consisted essentially of highly emotional assertions about DV's medical treatment and often quite intemperate allegations against his treating doctors. In both her affidavit, and orally at the hearing, the appellant asserted that DV's rights are being ignored and his life is being destroyed by the respondents. That, according to the appellant, is because he is being treated with inappropriate and dangerous drugs by his doctors. The appellant argued that it is therefore imperative that his siblings regain control over his affairs, including any medical assistance he may require, so as to bring that treatment to an end. It is implicit that the appellant believes that unless and until the guardian is removed and DV permitted to be cared for by his siblings, he will continue to be subjected to life‑threatening medical treatment.
On the hearing of the application we were left with the clear impression that the appellant is not open to be persuaded otherwise and is quite impervious to any other view. The appellant's antipathy towards psychiatrists and to psychiatry in general was plain from the affidavit and from her oral submissions. In her affidavit, the appellant, among other things, accused the Tribunal of 'siding with and favouring the murdering, drug-pushing, life-destroying psychiatrists'. Similar sentiments were expressed in her oral submissions.
Notwithstanding that the appellant has no medical training, it is evident that the appellant's anxiety that DV's health and well-being are being put at risk is based upon her own assessment of the effect of the drugs she says DV is being prescribed, which she described in her affidavit as 'proven to be dangerous and damaging to the human brain, mind, and body, especially long term use'. The appellant asserted in her affidavit that DV 'will be deceased within 5-10 years if their psychiatric "treatments" are not stopped'. Her assessment of the effect of the drugs is apparently based on her own searches of various (undisclosed) internet sources.
It is apparent from the Tribunal's reasons for decision that the appellant had an opportunity to put her views to the Tribunal in opposition to the respondents' application. It is also apparent that the Tribunal did not accept those views. That of itself does not disclose error on the Tribunal's part. Nothing else has been put before us which is capable of disclosing error. Moreover, apart from the lay views of the appellant as to the effect of the medical treatment DV is receiving, there is nothing to suggest that he is not receiving, and will not continue to receive, appropriate medical treatment following the appointment of a guardian. No basis has been shown for the intervention of this court to stay the orders of the Tribunal.
The orders sought by the appellant to stop the respondents 'drugging' and treating DV are not matters which arise out of the appeal and any such relief falls outside the jurisdiction of this court. We should add that it follows from what we have said that there is, in any event, no basis in fact in the affidavit for such relief. The application for damages must be dismissed on the same grounds.
The applications for leave to file the proposed writ and to transfer the District Court action to the Supreme Court, were not addressed in the appellant's affidavit. However, the application for leave to issue the writ is the subject of another appeal and has been dealt with in our decision on an interim application in that appeal: see VL v Mead Centre, Armadale Mental Health Service [2011] WASCA 213. In any event, on the face of it they are not matters which arise out of this appeal and do not fall to be dealt with on an interim application to this court. If the appellant wishes to pursue these matters she must do so by way of an appropriately framed application to the general division of the court. There is likewise no basis for the appellant's application for costs.
We should mention that it was unnecessary for the purposes of this application to consider whether the appellant has standing to bring the appeal. (In that regard, see s 105 and s 36(1)(d) of the State Administrative Tribunal Act and s 41 of the Guardianship and Administration Act.)

Conclusion

The interim application is without foundation and must be dismissed.