WKX (Guardianship)

[2011] TASGAB 6

GUARDIANSHIP AND ADMINISTRATION BOARD

HOBART

WKX – Application for guardianship an application by KX

Neutral citation: WKX (Guardianship) [2011] TASGAB 6

REASONS FOR DECISION

Colin McKenzie (Deputy President)
Sue Hill (Member)
Marguerite Lester (Member)

Date of Hearing 17 September 2010 and 6 April 2011

Guardianship – change of Guardian

Procedure - statement of issues and documents- application to inspect documents confidentiality- procedural fairness- Kioa v. West [1985] HCA 81 - confidentiality and risk of harm - exceptional circumstances - statements that are relevant, and significant to the decision to be made.

Adjournment - Aon Risk Services Australia Limited v. Australian National University [2009] HCA 27

Suitability of Guardian- capacity to effectively investigate, evaluate and resolve conflict or to obtain and present information to, and negotiate with, treating professionals and service providers- maintenance and fostering of family relationships- church attendance- least restrictive of the person’s freedom of decision and action- allegations of sexual misconduct

Guardianship and Administration Act 1995 (Tas), ss 6, 11, 19, 20, 21 and 50

Background Facts:

On 17 September 2010 The Board had before it two matters relating to WKX (WKX). The first was a three year review under s67 of a Guardianship Order by which the appointment of the Public Guardian as guardian of WKX had been continued until 17 October 2010.
The second was an application for guardianship dated 22 July 2010, made by KX (KX).  The application by KX was formally defective by reason of the lack of verification by declaration in accordance with regulation 12.  The application raised a range of issues and referred to correspondence and documents in a format which made it difficult to effectively identify the issues and conduct a hearing to determine the application.  The Board decided that before proceeding to hear and determine KX’s application it would require KX to submit the required declaration, to provide to the Board and the Public Guardian a succinct statement of the grounds for his application and identify any documents on which he intended to rely in support of the application.  The Public Guardian was required to respond in corresponding form and with similar content.
The Board made an order continuing the appointment of the Public Guardian as Guardian with unlimited authority, of WKX, that order to remain in effect until 16 September 2011, to preserve the status quo while KX’s application was made ready for hearing and determined.

The grounds for the application

In compliance with the directions of the Board, KX submitted a document stating the grounds on which his application was based.  The only matter raised by the application was whether KX should be appointed as guardian in place of the Public Guardian.  This document identified the following circumstances as grounds for appointing him as WKX’s guardian in place of the Public Guardian.

1. He was able to provide full time guardianship as opposed to the Public Guardian only visiting every two months or so. 
2. WKX’s stated preference was to “be” with the applicant, evidenced by his absconding from [XXXX] where he was resident. 
3. The lack of contact with his father, relatives, pastor or friends.
4. The opportunity to live a normal life and have effective rehabilitation.
5. That the applicant had no impediments in his record of character which would impede his appointment as guardian.
6. That there had been false allegations that the applicant had criminally sexually assaulted the represented person.
7. The lack of improvement evidenced by reference to a neuropsychological assessment.
8. Prevention by the Public Guardian of WKX attending church, having visits from his pastor and playing in a band.
9. Neglect on the part of the Public Guardian leading to WKX having poor personal hygiene, and dental health, injuries and untreated or inadequately treated medical conditions.
10. Lack of planning by the Public Guardian regarding; - rehabilitation, therapy, provision of mobile chairs, inadequate and unsafe transport arrangements and leaving the represented person in residential care where there had been deaths which were unexpected or unexplained.

KX attached to his application the following documents.

1. Report of Dr Rodney Geelan (dentist) dated 8 August 2008;
2. Report of Dr Andrew Jackson (GP) dated 5 June 2008;
3. Letter from Office of Public Guardian to the applicant dated 8 September 2008;
4. Letter from Dr Andrew Jackson to ID [XXXX] dated 22 February 2008;
5. Letter Office of Public Guardian to ID [XXXX] dated 16 January 2008;
6. Letter Office of Public Guardian to the applicant dated 20 May 2010, 23 November 2009, 22 September 2009, 8 September 2009, 21 August 2009, 31 August 2009, 21 July 2009, 13 October 2008.

On 30 September 2010 the applicant submitted a declaration in accordance with Regulation 12 dated 20 September 2010 and a document entitled “Appointments missed since 17 September 2010”. 

The Public Guardian delivered a response to the Board dated 25 October 2010.  The Board required the Public Guardian to deliver a further response setting out for each issue raised by KX, the response of the Public Guardian stating;

• Whether it is disputed and if so what is in dispute and for what reason based on what facts,

• Identifying specifically any documents to be referred to or relied upon by Public Guardian in connection with the issue.

• Setting out any additional issues or facts that Public Guardian intends to raise or rely on and identifying specifically any documents to be referred to or relied upon by Public Guardian in connection with each issue. 

In compliance with that direction the Public Guardian submitted a response dated 20 January 2011 to which were attached the following documents:

1. Incident report dated 7 January 2011 BC;
2. Incident report by GC dated 16 August 2010;
3. Incident report by KU undated but with a fax header 23 November 2005;
4. Incident report MC Which the board has been informed is dated 22 October 2005;
5. Incident report UU dated 25 May 2010;
6. Report of Dr Mark Slatyer dated 26 May 2010;
7. Extract from report of SC dated 20 December 2006 with heading “Recommendations”.
8. Tasmanian Redeployment Services incident report dated 17 September 2010;
9. File note UU dated 29 January 2010.

Before the hearing KX also submitted a document dated 1 March 2011 entitled “Application made under Section 67(c)”.

KX appeared to be under the impression that the hearing of the application had not commenced within the statutory period and therefore he had to resubmit it in order for it to be formally regular.  In the Board’s view that was incorrect by virtue of the fact that his application was not formally regular until he submitted the statutory declaration or alternatively by virtue of s 71(a). 

The applicant also submitted a document to the Board entitled “Supplement to Application dated 31 August 2010” which essentially repeated the contents of the document he had submitted containing issues dated 28 September 2010. 

The Public Guardian submitted a letter dated 23 March 2011 with regard to an incident which occurred on the day of the hearing of 17 September 2010.

All of the above documents were available to both parties at the hearing on 8 April 2011.

Application for access to Documents

During the course of the hearing, the Board addressed the application in paragraph 7 of KX’s statement of grounds dated 28 September 2010 by which he sought access from the Public Guardian to;

• “All assessments concerning WKX made since 17 October 2007”,
• “Any correspondence regarding the allegation that WKX does not want to see his dad”
• “Copies of all records of interviews and interrogations of WKX …regarding the false allegation”

The Public Guardian resisted production of documents on the bases set out in her response, essentially on grounds that the documents were the property of the author, there were alternative means of access through a GP, denying that she had documents of the nature described in the third category and that information received from WKX relating to his wishes was given in confidence.

The proceeding being heard by the Board is not equivalent to an ordinary civil action between parties which would normally include a right to access relevant documents unless disclosure is precluded by the operation of legal rules such as those regarding privilege.  It concerns the rights of a represented person who, in this case has been determined to lack the capacity to manage his own affairs, including whether and to whom his private information should be disclosed.  Applications for review or other orders under the Act can be made by a wide range of individuals, including family, carers, or indeed any person.  In the Board’s view there is no automatic right for a party in proceedings before it to access any non-privileged document, even if it is relevant.  The Board should be particularly careful not to enable the loss of confidentiality by ordering the disclosure of documents without being satisfied that it is necessary for the attainment of a just hearing, consistent with the legal authorities cited below and takes into account the interests of the represented person and other purposes of the Act such as are evident from sections 5, 6 and 20(2-5).

Accordingly KX was required by the Board to identify more precisely the documents to which he sought access and the reasons for which he contended access should be given.  KX sought access to only one document, namely the report of SC dated 20 December 2006, the last page of which had been attached to the Public Guardian’s submission.  KX sought access on the ground that he believed it formed one of the sources of an allegation of sexual misconduct on the part of KX toward WKX which he believed lay behind the Public Guardian curtailing his access to his son. 

The Public Guardian resisted release of the full report on the following bases;

1. That it was the property of SC
2. That it was not in WKX’s interests to disclose it to KX.
3. That KX had been authorised to approach SC to discuss her report with her but had not taken any step toward obtaining further information by that means.
4. That the report was over 4 years old and therefore predated the period under review.

Ms Hillier said in evidence that while the allegation of misconduct was a factor in the Public Guardian’s decision to restrict KX’s access, it was not a significant factor. 

KX did not dispute that he had been authorised to discuss the report with SC but had not taken up that offer. 

The Board reserved its decision on the application for access to the report until the conclusion of the other aspects of the hearing.

KX’s request for access to SC report raises the issue of procedural fairness. His request should be evaluated in accordance with Kioa v. West [1985] HCA 81. The Board has been assisted by reference to KV v. Protective & Others; KW & ORS v. KV & ORS (No.2) [2004] NSWADTAP 48 and an article by John Blackwood entitled “Fairness v. Privacy: Disclosure of Documents by Guardianship Tribunals”, Psychiatry, Psychology & Law, Volume 11, No. 1 2004 PP 122 to 140 which contain detailed analysis of the authorities and principles applicable to disclosure of documents.

In the Board’s view KX is a person whose interests are likely to be affected by an exercise of power by the Board and so he must be given an opportunity to deal with relevant matters adverse to his interests which the Board proposes to take into account in deciding upon its exercise. (Kioa v. West, Brennan J at paragraph 38).  While KX does not hold any position of authority or power regarding WKX for example by way of power of attorney or pre-existing appointment, it is the Board’s view that as an applicant he has sufficient interest, rights or legitimate expectations regarding the hearing of his application which would give rise to an entitlement to procedural fairness being accorded to him. 

The Guardianship & Administration Act states in Section 11(2)(b) that the Board “is bound by the rules of natural justice”. There is no manifestation within the Guardianship & Administration Act 1995 of any intention contrary to the application of normal rules of procedural fairness in the circumstances of an applicant with a connection to the represented person like KX’s. The issue is what those rules require with regard to KX’s application.

In the Board’s view the content of the part of SC’s report which has been released by the Public Guardian in support of her case plainly contains adverse implications against KX which gives him a sufficient interest in the report. 
As Justice Brennan said in Kioa v. West at paragraph 38

“…nevertheless in the ordinary case where no problem of confidentiality arises an opportunity should be given to deal with adverse information that is credible, relevant, and significant to the decision to be made.  It is not sufficient for the repository of the power to endeavour to shut information of that kind out of his mind and to reach a decision without reference to it.  Information of that kind creates a real risk of prejudice, albeit subconscious, and it is unfair to deny a person whose interests are likely to be affected by the decision an opportunity to deal with the information.  He will be neither consoled nor assured to be told that the prejudicial information was left out of account.”

It is apparent from the extract from SC’s report of December 2006 that it is preceded by a substantial quantity of material presumably comprising at least 51 paragraphs.  Given the recommendations contained in the extract from SC’s report, that background material presumably provides justification for supervision directed to preventing five categories of behaviour.  The obvious implication is that SC has concluded that without supervision it is likely that KX would engage in such behaviour.  The fact that conclusion is drawn by a clinical psychologist, who in this State must be qualified and registered to practice, is plainly credible and adverse to KX.  However before the Board is required, in order to accord KX procedural fairness, to order the release of SC’s report it must also be relevant and significant to the decision being made and there must be “no problem of confidentiality”. 

The Board also takes into account the fact that in order to accord KX procedural fairness it is not necessarily required to order the release of SC’s report in its entirety.  It may be sufficient that the substance of the allegations or other adverse information is revealed. 

Paragraph 52 of SC’s report goes some of the way toward revealing the substance of the allegations however it gives KX no information about when or in what circumstances any alleged incident occurred which warranted SC’s recommendations. 

The authorities referred to above confirm that exceptional circumstances may displace the obligation to disclose.  Those authorities establish that information should not be disclosed if it is sufficiently sensitive or private or if it could cause serious harm to the health or safety of a person or if disclosure of the information would have an adverse affect on the represented person’s relationships with other adults, his family or his treating health professionals or could cause him psychological harm.  Further if information is provided in confidence it may be withheld provided the substance of it is disclosed. 

The Public Guardian provided further information regarding the report in her submission in response under the heading “Additional Issue of Supervised Contact”.  She noted that the report from SC was obtained at the direction of a differently constituted Guardianship Board of 23 June 2006.  Under that direction the Public Guardian was required to seek the opinion of a qualified expert as to the adverse or beneficial effects of contact between the represented person and each of the members of his immediate family. 

The Public Guardian stated that she requested the report from SC “who met with WKX and members of his immediate family except for his father KX, who declined to be part of the process”. 

The Public Guardian stated that she sent the report to the Guardianship & Administration Board when completed and they would have a copy on file.  It is important to note that under Section 8A of the Act the functions of the Board are exercised by divisions of the Board.  The division of the Board hearing this application was not composed of the same three members involved in the decision of 23 June 2006 although one of them was a member of the division of the Board that made that decision.  None of the members of this division of the Board have made reference to documents or records other than those which have been presented to it by the parties at this hearing. 

The Public Guardian’s submission stated that “KX has requested a copy of the report and has been referred to SC as the author of the report”. 

It is likely that SC’s report contains an account of SC’s consultations with WKX and members of his immediate family as well as possibly other persons who had significant involvement with WKX.  There is a reasonable risk that any or all of those persons were induced to speak to SC on the basis that the information they provided would be confidential.  In addition there is a risk that disclosure of the information could result in unnecessary or unwarranted disruption of relationships between WKX, his family and health professionals.  Naturally none of this is known at this stage.  This Board has concluded that it would not be appropriate to release the report without first ascertaining whether such considerations would weigh against disclosure of the content of the report.  The Board could do so by requiring the attendance of SC to address the matters of confidentiality and risk of harm. 

In this application the Board required the parties to specifically identify the evidence and material upon which they relied. The Board made it clear that it relied upon the parties to submit the evidence upon which they intended to rely and at this point no sufficient reason to depart from that course has been identified either by the parties or the Board which would warrant the Board now trawling through material submitted in connection with previous reviews and decisions relating to WKX which are voluminous. A requirement to do so would be oppressive if not clearly necessary and would entail further delay in determination of this application. Bearing in mind the principles in relation to resolution of litigation expressed by the High Court in Aon Risk Services Australia Limited v. Australian National University [2009] HCA 27 this Board for the reasons stated below considers it is not necessary or appropriate to further explore the content of SC’s report or the merits of further disclosing its contents. Accordingly it is not appropriate to adjourn this hearing in order to do so.

Having heard the remainder of the evidence and taking into account the reasons for The Board’s decision below, in the circumstances The Board does not consider it necessary to order production of SC’s report because;

1. It is not necessary to enable the Board to determine KX’s application to be appointed guardian in place of the Public Guardian,
2. It is not the Board’s role to provide a forum for KX to obtain vindication in the face of the disputed allegations of sexual misconduct unless resolution of that dispute is necessary to determine the application.  The Board has decided that it can determine the application without resolving that dispute.
3. KX did not dispute the Public Guardian’s evidence that;
1. he was invited but declined to participate in the process which lead to SC’s report.
2. He was authorised to discuss the report with SC.
4. KX has for a long time had an alternative, albeit restricted, means of access to information about the report of which he has not availed himself and he has not provided any evidence that it does not provide sufficient access balancing the requirements of justice, a fair hearing, WKX’s best interests and privacy and the result that is least restrictive of WKX’s freedom of decision and action. 

The hearing

The hearing was attended by the applicant, Ms Hillier a delegate of the Public Guardian, Linda Gourlay representing the Motor Accidents Insurance Board, Bronwyn Green representing Anglicare (operator of [XXXX] where represented person is resident), GC employed at [XXXX], and BG who is WKX’s mother.  WKX was given notice of the hearing but did not attend.

Two members of the Board had visited WKX before the hearing and a copy of their report of their visit was made to the remaining member of the Board.  Those two members had communicated with WKX using a communication board. 

Both the Public Guardian and KX contended that WKX was able to express his wishes via his communication board in the absence of other parties. 

KX claimed that WKX communicated that he wanted to be with KX and KX interpreted the communication to include WKX expressing a desire to live with KX rather than at [XXXX] and to have KX as his guardian rather than the Public Guardian.

The Public Guardian contended that WKX expressed wishes to the contrary. 

In her letter of 23 March 2011 the Public Guardian specifically requested that the Board interview WKX itself and KX was provided with a copy of that request and did not make any objection to Board members interviewing WKX.

KX was with WKX immediately before the visit but did not participate in the meeting with WKX although he had opportunities to communicate with WKX both before and after WKX’s meeting with the two members of the Board. 

WKX attended the first hearing on 17 September 2010 and attempted to contribute to the proceedings. He had his communication board with him.  However WKX’s contribution was hampered by him becoming quite agitated, rising from his chair and having to leave, resulting in adjournment while he left the hearing room and settled down.  The meaning attributed by KX in his submission to words spelled out by WKX on 17 September 2010 were not, in the Board’s view, clearly specifically directed to a claim that the Board had made a mistake with respect to appointing the Public Guardian as guardian.  WKX’s degree of agitation prevented the Board further clarifying on 17 September 2010, the meaning he had intended to convey.

The two members of the Board met with WKX on 31 March 2011, for about half an hour. Also present was Dalene Francis (Northern Occupational Services Worker (NOS).  Ms Francis held the communication board for WKX to spell out his responses. Otherwise he mouthed some single word responses, gave a thumbs-up or a blink for correct. WKX was very reliable with his spelling of responses.

The following is the substance of the conversation with WKX;

How are you? Good & a thumb up
Are you having a good morning? Yes
How’s Dad? Good
How’s Mum?  Good
Do you like living at [XXXX]? Yes
Do they look after you well? Yes
Do you go out much? – C responded – always out, has weekends with mum too. Thought WKX had had last weekend with mum.  WKX said no.
How’s your memory? Not good
How is your football team going? St Kilda-
There was some other chat about childhood football with the [XXXX]
If you could choose where would you like to live? With KX at the [XXXX]
Wasn’t there some problems between you and Dad when you lived with him? What do you mean, no.

It appeared to the two Board members that at this point WKX was recalling times prior to the accident at the [XXXX]

Would you like to live with Mum? If KX could visit

By this time WKX was becoming keen to return to his woodwork.  Some small talk followed to relieve some rising possible anxiety/tension in WKX.
He was thanked for talking with the Board members and Ms Francis took WKX back into the workshop to be met at the door by KX saying ‘I was just bringing you a cup of coffee (mug in hand)’.

After WKX had left Ms Francis informed The Board members that;

1. WKX perhaps recalls quite a deal pre-accident which shapes his interpretations of where he would live with KX and where KX is referring to when that subject is discussed although KX never mentions the [XXXX]. KX is currently living in a caravan in Launceston, not at the [XXXX].

2. WKX does not have much post accident memory.

3. While KX entertains WKX at the workshop his conversation is constant and is about when KX becomes his carer after the hearing they will have a party and move out of [XXXX] the day after the hearing. In her view it was a repetitive battering – including phrases such as ‘when you come to live with me’, ‘7 more sleeps to go, have a party’. This makes WKX quite agitated.   When WKX returns to [XXXX] at the end of the day there is noted difficult behaviours to work through.

4. KX disparages WKX’s mother and her partner in WKX’s presence.

5. Ms Francis was surprised when WKX stated he would like to live with his mother if KX could visit.

The Board has taken into account KX’s comments about the meeting in the document he submitted at the hearing headed “KX Hearing 6-4-11”.  He believed (incorrectly) that WKX did not have access to his communication board when he met with two members of the Board.  He contended that WKX would not have been able to communicate his wishes at the meeting.

The Board gave no weight to Ms Francis’ statements in the context of the application but have set them out in order to ensure the parties, particularly KX, are aware that they were made.  In the Board’s view the statements added nothing of substance to the evidence relevant to the determination. The statements in paragraphs 3 and 4 might be seen as adverse to KX but the Board notes that they are relatively trivial when compared with other the evidence bearing on KX’s suitability as a guardian.   KX did not dispute the statements by the Public Guardian in the second page of her response or the incident reports attached to her response apart from details of interactions with GC and in respect of the incident on 17 September 2010.  In the context of the evidence overall Ms Francis’s statements do not amount to statements that are relevant, and significant to the decision to be made.

The Board concluded that WKX was not able to express his wishes with regard to the appointment of a guardian or with regard to matters which it would be within the power of the guardian to decide, with sufficient clarity, consistency and freedom from influence to give the Board confidence that it could determine the application on the basis of WKX’s wishes or that the presence at the hearing of WKX would enable him to more effectively express those wishes.  Further the Board had observed on 17 September 2010 that WKX appeared to become distressed and agitated in the face of conflict regarding these matters.  On that basis the Board did not consider it necessary to require WKX to attend and neither of the parties contended that his presence should be secured. 

The Board determined that the only parties to the application were the applicant and the Public Guardian represented by her delegate, Ms Hillier.  The Board considered Ms Hillier to be an appropriate person to represent the Public Guardian because she has had responsibility for WKX’s guardianship under delegation from the guardian since 21 July 2009. 

The Board informed the parties that it would proceed to hear KX’s application by first hearing any evidence he wished to call or submit.  That during that stage of the proceedings the Ms Hillier would have an opportunity to ask questions of KX and any witnesses he called, after which Ms Hillier would present the Public Guardian’s case and evidence during which at appropriate times KX would be able to ask questions of Ms Hillier and any witnesses she called. 

The remaining persons attending the hearing were not treated as parties but were plainly available for questioning by either party or the Board itself.  None of them did so apart from G who made a brief statement at the conclusion of the Public Guardian’s response. 

Apart from the submission of the documents referred to above, evidence was given orally by KX and Ms Hillier. At the conclusion of his evidence KX submitted the document entitled “KX Hearing 6-4-11 a copy of which was given to Ms Hillier before she was called upon to question KX or commence her evidence. 

G told the Board that she did not support KX being appointed guardian.  She said it was about KX controlling WKX.  She said that WKX would not be given any choices.  She said “He is 25 years old and does not need a mother and father to interact with other people”.  She said he did not need his parents putting him at risk.  He needed to be able to make his own decisions.  She said that in her opinion the Public Guardian was really good and that WKX was socialising and going to work.  He was able to go to the shop and buy work clothes.  She was happy to see him like that and regarded that as independence and preferable to people controlling him.  She said that WKX has the ability to make his own “private decisions” and that when he is with her he does make his own decisions except in relation to medical matters. 

At the conclusion of this statement KX was invited to respond if he wished.  His only response was to observe that he interpreted WKX’s mother’s statement as an argument against the need for a guardian.

Determination

From this evidence and taking into account the submissions and arguments of the parties.  The Board makes the following determinations;

KX cares deeply for his son, and he feels very deeply his responsibilities as a parent and a Christian toward his son.  WKX has a strong bond with his father.   His desire to continue to have access to and contact with his father is not in dispute. 

It was clear that KX lacked the capacity to resolve conflict with those responsible for providing medical treatment, rehabilitation and other services to his son.  The Public Guardian’s delegate cited a number of instances, and provided copies of incident reports of interactions in public places including at the doctor’s surgery, the dentist, and outside the hearing room on 17 October when conflict has occurred which has escalated and led to WKX becoming upset, aggressive and violent. 

It was KX’s evidence that these events occurred in the presence of other people.  KX did not present any witness statement or evidence which would support his perception of those events.  This is a significant omission taking into account that WKX’s GP, Dr K and WKX’s dentist, Dr H, had written to the Public Guardian raising issues concerning WKX’s treatment.  It is reasonable for the Board to conclude that the absence of any adverse report, statement or submission from professional service providers or even bystanders is significant given KX’s claims of mistreatment, bullying and improper conduct on the part of the Public Guardian or her delegates, or staff of [XXXX].  In this respect the Board prefers the versions of contested events contained in the evidence of the Public Guardian where it conflicts with KX’s evidence.

It was apparent to the Board members who interviewed WKX that he appears unable to weigh up and choose between alternatives or to manage pressure or influence from interested persons when making choices.  It is the Board’s view that WKX is vulnerable to pressure and accordingly needs a substitute decision maker who is capable of weighing up the merits of any arrangements, treatment, residence, access, diversional therapy and outings to determine what is in WKX’s best interests and then to have adequate resources to implement those decisions and to deal with objections from interested persons such as the applicant.

It was clear from his own evidence that KX carries a degree of resentment toward WKX’s mother.  He believes that she was the source of the allegations of sexual misconduct on his part.  He appeared to hold her responsible for arranging hand surgery performed by an orthopaedic surgeon, which KX said was a failure.  When asked to outline what efforts he would make to facilitate WKX’s relationship with his mother he was hesitant to make any firm commitment stating simply that it was something “that would have to be negotiated”. 

One of the issues the Board is required to take into account when appointing a guardian is the impact an appointment would have on the maintenance and fostering of family relationships. In this regard the Board finds that KX has unresolved resentment and conflict with WKX’s mother which would colour his decisions regarding interactions between WKX and his mother and is likely to lead to disruption of that relationship. It also places KX’s personal interests in conflict in a significant respect with WKX’s best interests and wishes which according to section 21(1)(b) of the Act would render KX ineligible to be guardian.

KX’s stated perception of WKX’s development is that he is a 25 year old who is in fact operating only at teenager level and therefore is to be treated as a child.  KX expressed the view that as WKX’s parent he was in a special position to make judgments about all matters relating to WKX, regardless of WKX’s wishes or medical advice. 

WKX’s mother’s statement provided an important contrast to KX’s evaluation of WKX’s capacity and independence. 

KX explained that in the case of conflict between his own views about treatment, equipment and rehabilitation and those of experts such as physiotherapists, occupational therapists, podiatrists and doctors, that he would prefer his own views to those of experts and would apply his own treatment methods in preference to those recommended by experts. 

This approach may well explain KX’s actions, contrary to medical advice, of encouraging WKX to put his head under water, to drink Coca Cola, and his wish to supply WKX with a wheelchair propelled by hand operated levers.  It was very clear from this evidence that if KX were appointed guardian he would in some areas ignore medical advice or fail to obtain or follow medical advice appropriately.  This is not a case of KX advocating for different medical treatments for WKX and encouraging doctors and other treating health professionals to consider alternative remedies, investigations or processes but simply a case of choosing to ignore that advice. 

There was evidence that KX had expressed concern that WKX was suffering from a corn and “rotting toenail” that he had observed.  He said that WKX had been prescribed strong antibiotics to deal with a skin condition. 

The evidence given by Ms Hillier was to the contrary, namely that WKX’s skin condition was treated using steroidal or antibiotic cream prescribed by a doctor and that the doctor had not prescribed any strong antibiotic.  The doctor had then reviewed WKX after a period of time and was satisfied that the cream was sufficient to clear up the condition.  Ms Hillier also gave evidence that the doctor consulted for advice about this condition had undertaken a general examination to ensure that there were no other medical concerns evident from an examination.  She stated that the doctor did not diagnose any condition in the nature of a rotting toenail.  KX did not seek to provide any independent evidence of the medical conditions he described or the validity of his complaints about neglect.  The absence of any complaint, letter or report from any of the treating practitioners or service providers with whom WKX has contact regularly is regarded by the Board as significant. In this respect the Board prefers the versions of contested events contained in the evidence of the Public Guardian where it conflicts with KX’s evidence.

The Board concluded from this evidence that it could not be satisfied that KX would act in WKX’s best interests with regard to obtaining medical treatment and following medical advice. That conclusion would preclude KX as an eligible guardian according to s21(1)(a).

KX explained that if appointed guardian he intended to obtain premises suitable for WKX to live in with him.  KX stated that he currently lives in a caravan.  It appeared from his evidence that he would rely on the Motor Accidents Insurance Board, which pays for the cost of WKX’s accommodation and treatment, to provide the necessary funds and that he intended to lease a house.  Upon questioning by the Board he agreed that he had not made any approach to the Motor Accidents Insurance Board to ascertain whether it would be willing to facilitate WKX living in premises with KX.  He had made no plans or inquiries with regard to the implementation of a change of residence from [XXXX] to a private domestic residence.  The Board regards the lack of any enquiry by KX, let alone planning, with regard to the feasibility of moving WKX’s residence as a factor which militates against appointing him as guardian.  No evidence was given by KX that satisfied the Board that giving KX the authority to make decisions about WKX’s place of residence would result in an outcome in WKX’s best interests.   The Board does not accept that KX has established that WKX should be moved from “[XXXX]” or that the matters he has raised including concerns about treatment, the safety of travel arrangements and unexplained deaths of other residents warrant taking that step.  Instead, in all the circumstances the Board concludes that KX’s decision that WKX should be moved from “[XXXX]” is evidence of his incapacity to reasonably weigh up the merits of WKX remaining at “[XXXX]”.

With regard to social activities KX said that the Office of Public Guardian prevents WKX from attending church.  On being questioned about how KX would handle or approach the issue of WKX going to church KX said he would not agree to WKX missing church to have a relationship with his mother, that he would “prioritise what WKX should do” and if WKX chose not to go to church in a “life or death situation” he intimated that he would not obstruct him but he did not “picture them arising”.  It was clear from his evidence that he regarded church attendance as a high priority and that if WKX expressed the wish to undertake some other activity instead of attending church that KX would override that choice.

In some cases a guardian may need to override a represented person’s wishes in a proper exercise of their duty to act in that person’s interests.  An example of such a situation was when the Ms Hillier acknowledged that she overrode WKX’s wish to have KX present at hydrotherapy citing the reason that the presence of his father had resulted on multiple occasions, in incidents involving WKX becoming upset, aggressive and at times violent, and in KX interfering in the therapist’s program rather than discussing the therapy with the therapist at times other than when the therapy is in progress.

However, KX did not identify or provide evidence of any reason for overriding WKX’s choices about church attendance other than to state that it was his obligation as a Christian to attend. The Act requires the Board to take account of WKX’s wishes so far as they can be ascertained; see s21(2)(a), and to observe the principles in s6 of the Act requiring the exercise of powers and performance of duties under the Act to be least restrictive of the person’s freedom of decision and action, and so that the wishes of the person with a disability are carried into effect. If KX were appointed guardian it is clear that he would not act in accordance with those principles with respect to church attendance.

Based on the evidence it has heard and the observations the Board made during the course of the hearing the Board accepts that G’s statement is consistent with evidence of WKX’s capacity to express his wishes with regard to matters that are not contentious.  It also provides evidence that KX’s complaints about the Public Guardian’s discharge of her duties are not warranted.

In addition to the events which were described in the evidence the Board carefully observed KX’s manner and approach during the hearing, his capacity to absorb, evaluate and respond to contentious matters arising in WKX’s guardianship.  One example of this was when KX while questioning Ms Hillier asked her to state the reasons for which she prevented KX participating in certain activities, reiterating his belief that the only motivating factor was the guardian’s belief that there was a risk that KX would engage in sexual misconduct based on unproven and disputed allegations.  Ms Hillier stated that the following were the reasons for which she had decided to limit KX’s access

1.    Continual incidents involving KX where WKX became upset

2.    KX providing inappropriate food and drink to WKX

3.    Putting WKX in the drivers seat of his car

4.    Unnecessarily parking in a place where WKX had to be taken across a busy road which was hazardous for him.

5.    That unsupervised contact with KX would put him in danger.

It was apparent from KX’s further questioning that he did not hear, take in or chose to ignore, her reasons and reiterated his belief that the allegations of sexual misconduct were behind her limiting his access.  He did not further question Ms Hillier about the other reasons she gave and he did not offer any evidence which satisfied the Board that Ms Hillier’s account of the reasons for her decisions to restrict KX’s access were not the real reasons for that action. 

The falsity of the allegations of sexual misconduct was a central element of KX’s application.  It is distressing for KX that he has been unable to obtain a formal finding that the allegations are baseless.  Ms Hillier did not present any evidence which would enable the Board to conclude that the allegations were true.  The only foundation in fact for those allegations was attributed to a complaint by WKX to Ms Hillier.  The Public Guardian had reported the allegation to the proper authorities but produced nothing to contradict KX’s evidence that the ensuing investigations have resulted in no charges or finding adverse to KX with regard to the allegations. The last page of SC’s report in one of five bullet points referred to the need to ensure KX did not “speak or act in a sexually inappropriate manner”.  Ms Hillier did not provide any evidence about the reason for SC making that suggestion.  However Ms Hillier gave evidence that she did not restrict KX’s access in response to the allegations nor did she restrict his access in response to SC’s report.

Ms Hillier informed the Board that KX had been offered the opportunity to address the allegations of sexual misconduct and explained that SC’s report which was written in 2006 did not lead to any immediate decision to restrict KX’s access.  On the contrary that access was not restricted until some 2 years later.  Ms Hillier asserted, without dissent from KX, that he had not made any attempt to discuss SC’s report with SC. 

From observing KX in the hearing it is the Board’s view that he does not have the capacity to effectively investigate, evaluate and resolve conflict or to obtain and present information to, and negotiate with, treating professionals and service providers.  Given the severity of WKX’s injury and impairment it is inevitable that he will need the attention of a range of service and treatment providers.  The person who has responsibility for obtaining advice and making decisions must have the capacity to do those things.

The Board’s determinations with regard to each of KX’s specific grounds are as follows;

• He was able to provide full time guardianship as opposed to the Public Guardian only visiting every two months or so. 

The Board does not accept that 24 hour, seven day per week presence at WKX’s residence is necessary for a guardian to adequately discharge their duties or that KX’s relative lack of competing responsibilities compared with the Public Guardian overrides other considerations set out above which militate against appointing KX as guardian.
The Board does not accept that WKX has the capacity to state his preference on this issue or explain his reasons for absconding, sufficiently free from influence and with the ability to weigh up the merits of choice of residence for the Board to give his statements decisive weight.  The Board was not satisfied that his expressed wish to be with the applicant should be interpreted as expressing the wish to move residence.
And
Prevention by the Public Guardian of WKX attending church, having visits from his pastor and playing in a band.
The Board does not accept that WKX is denied reasonable and appropriate contact with father, relatives, pastor and friends.  No evidence corroborating the applicant’s perceptions of the lack of contact was submitted by the applicant.  The Board finds that it is the applicant’s behaviour which leads to restrictions on his access and it is the preference expressed from time to time by of WKX which leads to him not attending church.

• WKX’s stated preference was to be with the applicant, evidenced by his absconding from “[XXXX]” where he was resident. 

• The lack of contact with his father, relatives, pastor or friends.

• The opportunity to live a normal life and have effective rehabilitation

And

The lack of improvement evidenced by reference to a neuropsychological assessment.
And
Neglect on the part of the Public Guardian leading to WKX having poor personal hygiene, and dental health, injuries and untreated or inadequately treated medical conditions.
And
Lack of planning by the Public Guardian regarding; - rehabilitation, therapy, provision of mobile chairs, inadequate and unsafe transport arrangements and leaving WKX in residential care where there had been deaths which were unexpected or unexplained.

KX submitted no expert evidence in support of his contention that WKX did not receive reasonable rehabilitation, medical and dental treatment and other services directed to permitting him to lead as normal a life as is possible for a person in his circumstances.  The Board finds that KX’s views about treatment and rehabilitation should not be relied upon unless supported by suitably qualified expert opinion.  The Board concluded that appointing the applicant as guardian in place of the respondent would be unlikely to lead to overall enhancement of WKX’s treatment, rehabilitation and normality of life but instead was likely to lead to KX failing to follow advice from WKX’s treating heath professionals.

• That the applicant had no impediments in his record of character.

The Board accepts that there was no evidence of any relevant offence, criminal or otherwise, which would be a barrier to KX being appointed guardian.

• That there had been false allegations that the applicant had criminally sexually assaulted WKX.

The Board is satisfied that an allegation of sexual misconduct was made and that the guardian’s investigation and response were appropriate.  

However, there was no evidence submitted at this hearing on which the Board could properly find that KX had engaged in unlawful conduct of a sexual nature toward WKX.  The lack of any evidence from the Public Guardian tending to establish that there had been in fact been misconduct of a sexual nature leads this Board to give that allegation no weight in determining this application.

Ms Hillier acknowledged that SC’s report had influenced her decisions regarding KX’s access to WKX but maintained that it was not the primary reason citing matters of WKX’s health and safety and disruption of his treatment, therapy and social interactions in public.

The Board has concluded that the allegations were not the substantial reason for restrictions continuing to be placed on KX’s access to WKX.  In this respect the Board prefers the evidence of the Public Guardian where it conflicts with KX’s evidence.

The Board is satisfied that it is the applicant’s behaviour at appointments, therapy sessions and in managing conflict involving WKX which has lead to continued restrictions on his access to WKX. 

If it were to be a significant decisive factor in determining this application the Board would fully examine the available evidence surrounding the issue including making its own enquiries to the extent permitted by the Act and providing the parties with sufficient information about the allegations to accord them procedural fairness. 

In the circumstances of this case it is consistent with authority for the reasons set out above for the Board to determine this application without determining whether there was in fact any substance to the allegation. 

The Board has concluded that KX should not be appointed guardian in place of the Public Guardian. 

The appointment of the Public Guardian was extended for one year at the hearing of the review and commencement of hearing this application in order to preserve the status quo.  Now that KX’s application has been determined and taking into account the range of matters it raised and the evidence which was submitted, the Board does not think further review would be warranted before the usual three years.  Accordingly the appointment of the Public Guardian will be extended to 17 September 2013 being three years from the last review. 

ORDERS:
The application is rejected.
The term of the Public Guardian’s appointment as Guardian is extended to 17 September 2013.

Dated 11 May 2011