WKX (Review Guardianship)
[2013] TASGAB 23
•31 October 2013
GUARDIANSHIP AND ADMINISTRATION BOARD
LAUNCESTON
File No XXXX
WKX – Application for Review of order by the Public Guardian
WKX (Review Guardianship) [2013] TASGAB 23
REASONS FOR DECISION
Ken Stanton (Chair)
Sue Hill (Board member)
Philippa Whyte (Board member)
Date of Hearing: 20 September 2013
Guardianship – Review of Guardianship – Nature of Review – Grievances about conduct of current guardian – Substitute guardian proposed – Informal form of application for substitute guardian - Suitability of Public Guardian as neutral guardian in case of potential family conflict – Unsuitability of proposed substitute guardian – Conflict of interest – Preserving family relationships - Best interests of represented person
Guardianship and Administration Act 1995 s. 6, 11(2), 21, 67
Holt & Anor v Protective Services Commissioner (1993) 31 NSWLR 227
BND (Review of Administration) [2012] TASGAB 3
On 6 April 2011 the Board made an order that the Public Guardian continue as the guardian of WKX (“WKX”). It made the following orders:
1. That the Public Guardian continue as WKX’s guardian.
2. That the powers and duties of the guardian be those conferred by Division 3 of Part 4 of the Guardianship and Administration Act 1995.
3. That the order remains in effect until 16 September 2013.
By application dated 5 September 2013 the Public Guardian applied for a review of that order on the basis that it was due to expire. On 20 September 2013, pursuant to section 67 of the Guardianship and Administration Act 1995, the Board undertook that review.
By letter to the Registrar of the Board dated 4 October 2013 and received by the Board on 7 October 2013 KX requested a statement of reasons for decision concerning the review. This is that statement.
The hearing on 20 September 2013
The hearing of the review was attended by KX, WKX’s father (“KX”), Ms Pat Clarke from the office of the Public Guardian and Ms Debra Collier, WKX’s case manager from Tasmanian Rehabilitation Services, all of whom gave evidence.
At the hearing the Board had before it:
a.The application for review dated 5 September 2013
b.The Board’s Compliance Officer’s Report dated 16 September 2013
c.The Health Care Professional’s Report from Dr Andrew Jackson dated 18 September 2013
d.The order of the Board dated 6 April 2011 and the Reasons for Decision of the Board in respect of that order
e.A letter from the then Deputy Premier, Attorney General and Minister for Justice Lara Giddings to KX dated 5 May 2009
f.A letter from the President of the Board to KX dated 4 February 2009
g.A letter from the Public Guardian to the Board dated 9 September 2009
h.A letter from the Public Guardian to the Board dated 23 March 2011 and enclosed incident report
i.A visit report from Marguerite Lester dated 1 April 2011
j.The Annual Report to the Board by the Public Guardian in respect of WKX dated 6 October 2011
k.A letter from Crown Law to the Secretary Department of Justice dated 19 December 2011
l.A copy of the reasons for decision of Tennent J in the Supreme Court of Tasmania in JLW v Guardianship and Administration Board [2011] TASSC 66
m.A letter from Dr Jackson to KX dated 5 October 2011 and Health and Fitness World Attendance Record
n.A letter from the Board to KX dated 23 December 2011
o.The notes of decision of the President of the Board dated 22 December 2011
p.A letter from the Board to KX dated 17 January 2012
q.The notes of the decision of the President of the Board dated 13 January 2012
r.A letter from the Public Guardian to KX dated 14 February 2012
s.A letter from the Board to KX dated 29 March 2012
t.A letter from the Board to KX dated 28 May 2012 and reasons for decision of the Board
u.A letter from the Board to KX dated 18 June 2012
v.A letter from the Board to the Public Guardian dated 26 June 2012
w.A letter from the Board to KX dated 27 June 2012
x.Reasons for decision of the Board dated 5 July 2012
y.A letter from the Public Guardian to the President of the Board dated 9 July 2012
z.A letter from Dr Mark Slayter to Dr Andrew Jackson dated 1 May 2012
aa.A letter from Dr Andrew Jackson to Dr Mark Slayter dated 4 May 2012
bb.A letter from Dr Jackson to XXXX dated 13 December 2011
cc.A letter from the Board to KX dated 12 July 2012
dd.A letter from the Board to KX dated 23 July 2012
ee.A letter from the Board to KX dated 27 July 2012
ff.A letter from the Attorney-General to KX dated 25 July 2012
gg.The request for an emergency order by KX dated 22 October 2012
hh.The Board notes of decision dated 22 October 2012
ii.An email from the Board to the Public Guardian dated 22 October 2012
jj.A letter from Dr Andrew Jackson to KX dated November 2012
kk.An undated letter from the Attorney-General to KX
ll.A letter from KX to the Public Guardian dated 15 November 2012
mm.A letter from the KX to the Board dated 12 September 2013
nn.A letter from KX to Dominic dated 12 September 2013
oo.A letter from KX to the Public Guardian dated 12 September 2013
pp.The Annual Report of the Public Guardian dated 17 September 2013
qq.Family Report from R Bickel to the Public Guardian marked confidential and dated 20 December 2006.
At the hearing KX handed the Board:
a.A letter dated 20 September 2013 which appeared to be an application for him to be appointed as WKX’s guardian. That application was formally defective because, it did not contain the declaration required by r12 of the Guardianship and Administration Regulations 2007. Nonetheless the Board was prepared to consider the purport of the application in the context of the review pursuant to section 67 on the basis that it appeared KX was contending that it was in WKX’s best interests that the appointment of the Public Guardian should not continue and that he should be appointed as WKX’s guardian instead.
b.A letter dated 14 October 2010 from Tasmania Police to KX.
Ms Clarke provided the Tribunal with a letter from the Anti-Discrimination Tribunal to the Office of the Public Guardian dated 30 August 2013.
The represented person
On 1 March 1997 when WKX was 10 years old he suffered a severe brain injury when he was hit by a car while riding his pushbike. He is now 27 years old. He has been the subject of guardianship orders since 20 July 2004.
KX and WKX’s mother separated many years ago, prior to WKX’s injury. WKX lives at XXXX, a facility run by Anglicare and attends various therapeutic and social and vocational activities.
10.The Health Care Professional Report (HCPR) from Dr Jackson of 18 September 2013 indicated that there had been no significant changes in WKX’s disability or capacity to make reasonable judgments.
11.The Public Guardian sought a continuing appointment and KX sought appointment as WKX’s guardian. There was therefore no dispute that WKX had a disability which affected his capacity to make reasonable judgments in respect of matters relating to his person and circumstances which created the need for a guardian. There was no dispute that the appointment of a guardian was in WKX’s best interests. There was nothing to suggest that there had been any change in WKX’s wishes or that his circumstances had changed so an option less restrictive than a full guardianship order was appropriate. The Board was satisfied of those matters.
12.The principal matter of contention on the review was whether the appointment of the Public Guardian should continue or whether that appointment should be revoked and KX should be appointed as WKX’s guardian.
The nature of the review under section 67
13.A review under section 67 of the Act requires the Board to consider whether it will exercise its powers under section 68 to vary or continue the order, with or without conditions or the revoke the order and make any consequential orders. In respect of a review of an administration order, in BND (Review of Administration) [2012] TASGAB 3 at [7] the Board said that the role of areview hearing is to determine whether one of the elements in the Act has fundamentally altered since the making of the order, to such an extent that the order ought to be revoked or varied and that because the applicants had made a fresh nomination for a new administrator who was not proposed at the last hearing, there existed the possibility of a change to the elements of the appointment required specified by the Act. Similar principles apply to a review of a guardianship order where a nomination of an alternative guardian has been made. This is such a case.
However the Board is not limited to considering facts and circumstances arising since that order. Neither is it bound by previous decisions of the Board. It can consider all matters relevant to the continuation variation or revocation of the order. In doing so it is required by s11(2) of the Act to act according to equity and good conscience without regard to technicalities or legal forms.
15.In the case of a long standing guardianship for a represented person who has an ongoing need for a guardian it is appropriate on a review under section 67 for the Board to focus on changes in facts or circumstances which would justify a change to the existing guardianship regime. Further, where the Public Guardian is already appointed and acting as guardian and has been for many years the Board is not required to revisit matters that have already been decided in respect of that appointment simply because they are raised again on the review. Nonetheless, on this review, the Board considered all of the material presented to it by KX and the Public Guardian even where it dealt with matters that had previously been raised by him and dealt with by the Board in order to determine whether it should continue vary or revoke the order of 6 April 2011 which governed WKX’s guardianship regime.
16.This statement of reasons is written in two parts, the first dealing with KX’s objections to the current guardianship and arrangements and the second dealing with KX’s application to be appointed as WKX’s guardian.
KX’s contentions
17.In his letter to the Board dated 12 September 2013 KX raised the following matters:
a.“…[T]he criminal presentation of my sons [sic] loss of fertility as claimed on 4/2/11 and that I have advised you of his statement on that date “Dad I am ‘scared’ I have lost my sperm”. KX referred to the fact that no permission had been given for “such to happen”.
b.“After my notification to the [Public Guardian] 4/2/11 I was informed by her that WKX could not see his Dr in relation to his concern, the [Public Guardian] notified the Mowbray Medical Clinic that I was not to be informed of any progress in WKX’s condition etc.”
18.The letter to the Board of 12 September 2013 attached a copy of a letter to the Public Guardian of the same date. The letter to the Public Guardian raised the following matters:
a.A phone call with the Public Guardian in which KX said she spoke about the same plan she appeared to have 2 years ago and in which she “did not arrive at a well thought out plan this time just the same unfair plan for WKX to have visitation with his dad”.
b.That KX is still waiting for the Public Guardian’s plan “which is still born” and has been since her actions of 4/2/11 when she “refused WKX to seek medical advice concerning his fears of that time, the [sic] he still has when he said “Dad I am afraid, I have lost my sperm”. KX asked “Why after all these years have you refused to allow WKX to see a Dr concerning this criminal administration of medication which has castrated WKX, a deliberate administration for an intended effect, CASTRATION, a deliberate refusal to see a doctor because of [the Public Guardian’s] previous knowledge that WKX had been medicated and the effect caused.” KX asserted that “criminal act” had been done with the knowledge of the Public Guardian, Anglicare and WKX’s mother.
c.A passport had been obtained for WKX without the permission of the Public Guardian.
19.KX suggested the issues he was concerned about were:
a.That WKX had been sterilised
b.That WKX was walking when he was under KX’s care but now just sat in a chair without any assistance
c.That a passport had been obtained for WKX
20.In the letter of 20 September 2013 handed to the Board at the hearing on that day KX:
a.asked for “information gained through the Board’s enquiries in relation to what the Guardianship Act Part 6 describes as a criminal act in that WKX has lost his fertility “WKXs term – “Dad I am scared” I have lost my sperm”.
b.Sought answers to “Questions regarding the criminal act of my son being made infertile.”
c.Referred to allegations made by the Public Guardian in 2008 and by Anglicare on 3/9/04 to the effect that WKX was sexually assaulted by KX. KX asserts those allegations are false and that they have not been reported to the police. KX makes the comment that due to “known lies (false allegations) MY SON is not to be considered in a safe place under the [Public Guardian] & in the care of Anglicare”.
d.Stated “[Board] there is no doubt that WKX has received special treatment without the consent of the Board.
There is no doubt that [WKX] has been made infertile, that he can no longer masturbate.”
21.During the course of the hearing KX also raised the following matters:
a.False allegations had been made against him by the Public Guardian in 2008;
b.The limitations imposed by the Public Guardian on KX visiting WKX
22.It therefore appeared to the Board that KX sought to contend that the Public Guardian was not suitable as a guardian and that he should be appointed in substitution for the Public Guardian because:
a.Under the guardianship of the Public Guardian WKX had suffered some sexual dysfunction described variously as “lost his sperm”, been castrated, been rendered infertile, lost his libido or could no longer obtain an erection or masturbate. That was the result of special treatment within the meaning of the Act which had, to the knowledge of the Public Guardian, Anglicare and WKX’s mother, occurred without the requisite Board consent and therefore constituted a criminal assault.
b.The Public Guardian did not at the time the concern expressed by WKX about his loss of sperm was brought to her attention and has not subsequently allowed or arranged for WKX to seek treatment in respect of that concern.
c.While the Public Guardian was WKX’s guardian a passport had been obtained which would enable WKX to be taken to the Philippines or out of the country thereby removing the evidence of the criminal conduct constituted by the administration of a substance which had the effect of causing his castration, loss of fertility, loss of libido or inability to obtain an erection or masturbate.
d.The Public Guardian and Anglicare had made false allegations that KX had sexually assaulted WKX.
e.The Public Guardian has imposed inappropriate restrictions on KX’s visitation of WKX.
f.The Public Guardian has not ensured appropriate care for WKX.
23.It is to be observed that that many if not all of those issues have been raised by KX and dealt with in previous decisions of the Board. Most recently the issue of the passport was raised by KX in a request for an emergency order received by the Board on 18 October 2012. In a request made on 2 May 2012 for a review of the Board’s order of 6 April 2011 KX raised the Public Guardian’s failure to provide medical treatment or permit investigation by WKX’s medical practitioner and the Board rejected the application pursuant to s11 of the Act on the grounds that it was lacking in substance and there had been no change in material facts since the Board’s decision of 6 April 2011. Another application raising the question of WKX’s medical treatment was considered by the Board and dismissed on 13 January 2012. On 22 December 2011 an application by KX for an emergency order giving a direction to the Public Guardian in respect of a long standing complaint by KX was dismissed by the Board on the grounds that urgency had not been established. In the hearing which resulted in the order of 6 April 2011 KX raised, amongst other matters:
a.WKX’s lack of contact with his father and others;
b.That there had been false allegations that KX had criminally sexually assaulted WKX;
c.That neglect on the part of the Public Guardian had led to poor personal hygiene, dental health, injuries and untreated or inadequately treated medical conditions.
24.It is also appropriate to observe that the matters raised by KX are essentially grievances about the conduct of the Public Guardian who is a statutory officer. Such grievances are the subject of oversight by the Ombudsman and the Supreme Court. It is not the primary role of a review pursuant to section 67 to make findings about such grievances. However they can be considered to the extent they are relevant to the primary question of whether a change in the guardianship regime is in WKX’s best interests and any consequential orders that might be appropriate in the event such a change is effected.
WKX’s “loss of sperm”
25.This matter has its genesis in KX’s assertion that on WKX said to him on 3 or 4 February 2011 words to the effect. “Dad I’m scared I have lost my sperm.” While the only evidence that WKX made that comment is from KX, there is no evidence which directly contradicts that. The Board is therefore prepared to act on the basis that comment was made by WKX to KX on or about 3 or 4 February 2011.
26.However the fact that WKX made that comment falls very far short of establishing the WKX has been castrated, been rendered infertile, lost his libido or can no longer obtain an erection or masturbate.
27.In order to be satisfied KX’s contention is correct the Board would need to find that WKX’s comment was referring to a chemical castration, loss of fertility, loss of libido or an inability to obtain an erection or masturbate. It would also need to find that the WKX did in fact have that type of the sexual dysfunction. That finding would be assisted if the means by which the condition was produced was established. KX’s evidence in support of those conclusions is what can, at its most generous, be described as circumstantial.
28.The Board is not satisfied that when WKX said he was scared he had lost his sperm that he was stating that he had been castrated, lost his fertility, lost his libido, could not obtain an erection or was unable to masturbate. It might be inferred that WKX was referring to a concern about some aspect of his sexual function but what that concern was or what aspect of his sexual function WKX was referring to is not clear. KX gives no evidence of the context of WKX’s comment or of any further detail provided by WKX as to what he meant by that comment. The fact that the comment could be interpreted and indeed has been interpreted by KX to refer to the very different conditions of castration, sterilisation, loss of fertility, loss of libido, an inability to obtain an erection and the inability to masturbate, demonstrates the uncertainty about WKX’s meaning when he made the comment to KX. The problems KX suggests WKX was referring to are simply KX’s assumption about the meaning of WKX’s comment. They essentially cover the field of male sexual dysfunction.
29.The principal objective fact to which KX refers in support of the conclusion that WKX suffers from the sexual dysfunction alleged is that that WKX no longer masturbates. Even that conclusion is an inference KX sought to have drawn from the fact that the difficulties experienced by the carers with WKX masturbating openly which existed when he was a teenager have not been reported by carers in recent times. The fact that WKX is no longer observed to masturbate is as consistent with him masturbating in private as it is with a cessation of masturbation.
30.KX adduced no medical evidence of WKX’s condition. He gave evidence that Dr Jackson had said that WKX’s prescription medication wouldn’t have the effect KX contends exists. KX uses that to support an inference that the condition he contends exists must have been caused in some other way, namely by unauthorised chemical castration. But it is equally consistent with Dr Jackson conveying that the condition KX is concerned about does not exist. Indeed that is more consistent with what Dr Jackson wrote to Dr Mark Slayter in a letter of 4 May 2012 where he said:
“I believe that KX’s current concerns have no sound basis and I have told him so.”
31.At the hearing KX was unable to recall the precise words used by Dr Jackson but accepted that Dr Jackson had said something like that to him about that issue. KX appears to have understood that to mean that WKX’s normal medication didn’t have the effect of producing the condition KX alleges or assumes.
32.As for the means by which WKX was castrated, KX says that WKX’s condition was produced by administration of medication to sterilise him by WKX’s mother. KX doesn’t know what the medication is and says that he has not witnessed any such administration and he has not been told by anyone else that they have seen it. But he says WKX’s mother was the one who administered the chemical because:
a.Only she, the Public Guardian and the manager at Anglicare would have the ability to administer the chemical and he has discounted the Public Guardian and the Anglicare manager because they have no reason to do so although they would benefit from the cessation of masturbation;
b.WKX’s mother has access to such chemicals because she works at a place where they are administered to other disabled males; and
c.Dr Jackson has told him that none of the medication prescribed for WKX would have the effect of castrating him.
33.That evidence is insufficient to satisfy the Board that WKX has been castrated, rendered infertile, lost his libido or that he is unable to obtain an erection or masturbate, let alone that such a condition, if it did exist, was caused by the administration of a chemical by WKX’s mother or anyone else. The reasoning used by KX to support the conclusion for which he contends is at best inference based on the assumption that his contention is correct. KX is seeking to have the Board assume his contention is correct, interpret the facts in light of that assumption and use that interpretation to support the contention. It is a classic example of circular reasoning. In the Board’s view, the conclusion for which KX contends is, at best, speculative with no sound basis in the evidence. It is fanciful.
34.It is also inconsistent with the letter from the Office of the Public Guardian of 9 July 2012. That letter indicates that:
a.Dr Jackson has told the Public Guardian that he will not raise the issue with WKX but if it is a real issue for WKX, WKX will raise it with him.
b.WKX’s speech therapist has told the Public Guardian that she believes WKX would raise an issue with her if it was important to him. WKX received a letter from his father one day telling him that he needed to speak with Dr Jackson about his ‘loss of sperm’ while in the company of the speech therapist. The therapist asked WKX if he wanted to talk about it and he said no. She suggested if he was concerned about anything he could talk to Dr Jackson or to N, the house manager at XXXX. WKX asked the therapist to put the letter away which she did.
c.WKX has never spoken to N, about the ‘loss of sperm’ issue and N has said that if it was an issue for WKX she believes he would talk to her about it as he brings up other issues he is concerned about.
35.Ms Clarke said there is no record of WKX ever raising the issue in any of the Public Guardian’s notes. And the Public Guardian is not aware of WKX raising it with anyone at all. Ms Collier said that there has never been a report of WKX raising a concern about sperm.
36.For those reasons, the Board is not satisfied that WKX has been castrated, lost his fertility, lost his libido, cannot maintain an erection or that he does not masturbate.
37.In light of that the Board is not satisfied that the Public Guardian has allowed such a condition to arise, let alone done so knowingly. This contention of KX therefore provides no basis upon which to conclude it is in WKX’s best interests to vary or revoke the present guardianship regime for WKX.
Not obtaining treatment for ‘loss of sperm’
38.KX asserts that he arranged an appointment for WKX with a GP, presumably Dr Jackson for the day after WKX made his comment about loss of sperm. KX says the appointment was cancelled by the Public Guardian and in essence that the Public Guardian has not arranged treatment for the issue to since then. In essence KX is suggesting that as a result of a concern expressed by WKX once to KX the Public Guardian should initiate further investigation and treatment of a condition involving WKX’s sexual function.
39.However in her letter of 9 July 2012 to the President of the Board the Public Guardian provides the following information in respect of the ‘loss of sperm’ issue.
a.She has raised the issue with Dr Jackson. Dr Jackson said that he will not raise the issue with WKX but believes if it is a real issue for him, WKX will raise it with Dr Jackson.
b.She has asked WKX’s speech therapist and the XXXX house manager about the issue. They have said that they believe WKX would raise the issue with them if it was important to him.
c.The issue was raised with WKX in a letter to WKX from KX which told WKX that he need to speak with Dr Jackson about his loss of sperm WKX received that letter in the company of his speech therapist who suggested if WKX wanted to talk about it he could talk to Dr Jackson or to house manager. WKX did not want to discuss the matter, asking for the letter to be put away.
If the matter was as important to WKX as KX’s contention would suggest, WKX could raise it with any of his trusted carers or his doctor. There has been ample opportunity for him to do so. It is likely he has not done so either because the dysfunction complained of has not continued or is no longer of concern to WKX.
41.If there was some clear indication of the existence of dysfunction and that condition was of continuing concern to WKX, further investigation and treatment might be appropriate. However it is appropriate to allow WKX privacy in respect of such issues and to allow him to raise any concerns again if and when he wants to. Further investigation and treatment might be distressing for WKX. The one occasion where the matter was raised with WKX by KX’s letter, WKX effectively discouraged its pursuit.
42.There is no indication in the evidence that failing to initiate further investigation of the matter has had or is likely to have an adverse impact on WKX’s mental, physical or sexual health. Dr Jackson does not suggest further investigation, advising a wait and see approach.
43.There is no indication in the evidence that it is otherwise contrary to WKX’s best interests not to initiate treatment or undertake any further investigation. It is consistent with the object of the legislation, which seeks to place the least restriction possible on WKX’s freedom of decision and action, to allow WKX to choose when and with whom to raise a desire to have treatment or further investigation of any concerns he has about his sexual function however described.
44.The Board is not satisfied the conduct of the Public Guardian in respect of investigation and treatment of the alleged loss of sperm issue is inappropriate in any way. On the contrary the Public Guardian has adopted a reasonable course to address the issue once it was raised. There is nothing in the conduct of the Public Guardian in respect of this issue which would justify the conclusion that it is in WKX’s best interests to appoint an alternative guardian.
WKX’s Passport
45.KX suggests a passport has been procured without the permission of the Public Guardian.
46.KX’s concern appears to be that the passport will facilitate WKX’s removal from Tasmania enabling a cover up of the criminal assault on WKX constituted by the chemical castration KX alleges has occurred. KX says he heard WKX’s mother say in effect that the passport would enable him to travel to the Philippines.
47.Because the Board is not satisfied such an assault has occurred it is not satisfied that the existence of the passport would be used for the purpose KX asserts.
48.No other problem with WKX having a passport is suggested. Dr Jackson stated in his letter to KX of 1 November 2012 that he has no concerns about WKX obtaining a passport. He does suggest prolonged air flight and travel to the Philippines or another country where the standard of care WKX would be able to access if things go wrong might be less than required might not be in WKX’s best interests. But the existence of the passport does not make such travel likely.
49.WKX would not be able to travel overseas without the Public Guardian’s consent. Given his accommodation and care arrangements it is unlikely such travel would be able to be arranged in a clandestine way. There is no evidence that any steps have been taken to arrange travel overseas for WKX in the time since KX raised his concerns about obtaining a passport.
50.The Board is not satisfied the continued existence of WKX’s passport or the Public Guardian’s acquiescence in obtaining the passport are matters which suggest, let alone require, an alternative guardian to the Public Guardian is in WKX’s best interests.
Allegations of sexual assault made against KX
KX says that false allegations have been made against him to the effect that he has sexually assaulted WKX. The allegations are said to have been made by Anglicare on 3/9/04 and the Public Guardian in 2008.
52.If the Public Guardian pursued an allegation of sexual misconduct against KX which she knew was false or relied on an allegation by Anglicare which she knew to be false, that might be a matter which could impact on whether it was in WKX’s best interests for the Public Guardian to continue as his guardian. However the Board is not satisfied that is what the Public Guardian has done.
53.The details of the allegations by Anglicare in 2004 were not apparent on the evidence to this Division of the Board.
54.According to the letter from the Public Guardian to the Acting Registrar of the Board dated 9 September 2009 WKX made allegations to an Anglicare staff member that there had been some activity of a sexual nature involving KX which WKX did not wish to continue. It appears that allegation may have been made in approximately September 2008. That letter suggests the allegation resulted in an investigation involving an independent advocate, the Police and a sexual support service.
55.KX denies any inappropriate sexual contact with WKX. He also says any suggestion of police involvement in an investigation of such allegations is false. He also disputes the fact of WKX making an allegation.
56.There is no evidence to suggest that KX has been the subject of any charges or adverse findings in respect of inappropriate sexual conduct with WKX resulting from any allegation investigated by the Public Guardian.
57.The Public Guardian’s letter of 9 September 2009 did say that her investigation involved the police. KX says in response to his request about information relating to those allegations the police letter of 14 October establishes that they were not involved in any investigation. That letter might suggest the police have no record of any complaints to the police or correspondence to the police in relation to those allegations. That might also suggest the Public Guardian has incorrectly indicated police involvement in the investigation of WKX’s allegation. On the other hand the nature of the police involvement in the investigation is not specified by the Public Guardian. It might not have produced any correspondence or resulted in a complaint. And even if the police were not involved in the investigation, the Board is not satisfied that means WKX did not raise the matter or that the Public Guardian should not have investigated it.
58.As to whether WKX raised an allegation, the letter of the Public Guardian dated 9 September 2009 referred to a confidential report from Rosie Bickel dated 21 December 2006, a copy of which was provided to this Division of the Board. That report mentions WKX writing on a computer about sexual activity by his father which upset him.
59.The Public Guardian says she took steps to investigate the allegation. No reason has been suggested why the Public Guardian or any of WKX’s carers would invent an allegation by WKX. The basis upon which KX could deny the allegation had been made as opposed to whether the allegation was correct is not apparent to the Board. He does not suggest for example that WKX has told him he did not make such an allegation. If WKX did make an allegation of inappropriate sexual conduct it was incumbent on the Public Guardian to investigate that allegation, whether or not it was true or was eventually be substantiated. That is what the Public Guardian did.
60.There is no evidence that investigation concluded that KX had engaged in any unlawful or inappropriate sexual activity. Aside from the fact that the existence of the allegation by WKX prompted the Public Guardian to investigate it, the Board is not satisfied KX engaged in any inappropriate sexual conduct with WKX and gives no weight to that allegation in this application. However the Board is not satisfied that the Public Guardian pursued an allegation against KX which she knew to be false. Even if the allegation against KX was false, it was appropriate for the Public Guardian to investigate it. That is what she did. The Board is not satisfied that the Public Guardian’s conduct in respect of the allegation is a reason why her appointment as WKX’s guardian should not be continued.
Requiring supervised access by KX
61.On 27 November 2008 the Public Guardian informed KX that she had made a decision that KX should only have supervised access with WKX. That decision is a standing decision which has continued since then.
62.KX contended that decision was not appropriate. It appears the reason KX considers it was not appropriate was because it was prompted by the false allegations of inappropriate sexual conduct made against him.
63.However the material before the Board suggests that on occasions KX has been involved in conflict in respect of WKX and has behaved in ways that have upset WKX. In those circumstances it is in WKX’s best interests to limit the opportunity for such conflict and behaviour and the Board is not satisfied the Public Guardian’s requirement is inappropriate noting that KX has not taken advantage of such supervised contact. He chooses to attend bowling where WKX goes on Saturdays.
64.The Board is not satisfied that the decision to impose conditions on KX’s contact with WKX suggests it is in WKX’s best interests to revoke the appointment of the Public Guardian as WKX’s guardian.
Neglect by the Public Guardian
65.The only allegation of neglect raised by KX at the hearing was that WKX was left in a wheelchair without assistance. KX gave no details of any observations by him which supported that assertion. How he could know that is not clear when he accepts that he is not allowed to visit WKX at his accommodation. KX called no evidence from anyone else to support that state of affairs.
66.At the hearing Ms Collier and Ms Clarke both disputed the assertion that WKX was left in a wheelchair. Ms Clarke said she had visited WKX about 10 days before the hearing when WKX had returned from bowling. She said he was not wheelchair bound. He walked up the corridor using a frame and showed her his room. Ms Collier said that most of the time when she sees WKX, which is not every day, WKX is using a walking frame. The Annual Report by the Public Guardian suggests that WKX has an active therapeutic and social life. His main goals are to walk and talk. That report indicates he continues to walk independently with a frame.
67.On 1 May 2012 Dr Mark Slayter wrote to Dr Andrew Jackson and said that WKX seemed to be going reasonably well and recommended that he continue on his current programme.
68.On 4 May 2012 Dr Jackson wrote to Dr Mark Slayter and said “I believe that WKX is progressing well, and as well as can be expected, probably more so given that Launceston does not have to hand all of the sophisticated facilities that are otherwise to be found in Hobart and indeed mainland capital cities.”
69.The Board prefers the evidence of Ms Collier and Ms Clarke to that of KX in respect of this issue.
70.The Board is satisfied that the Public Guardian is not neglecting WKX’s needs. There is no reason to conclude that it is in his best interests to replace the Public Guardian for this reason.
Other factors supporting continuation of the Public Guardian
71.The Annual Report of the Public Guardian dated 17 September 2013 indicated there is some disagreement between WKX’ parents as to what is in his best interest. Ms Clarke said that was a reason the Public Guardian sought continued appointment. When KX responded to the evidence of Ms Clarke and Ms Collier he did not deny that conflict.
72.It was clear to the Board that KX held some resentment towards WKX’s mother. At the hearing he referred to events prior to WKX’s injury when she ‘kidnapped’ the children from school. He stated that the only person to complain about him was WKX’s mother making false allegations against him. He says she spent time with the family at Christmas time in 1995 telling the children what a nasty man he was. He said she returned when WKX was injured “because she thought there was some money around.”
73.The existence of conflict or potential conflict between KX and WKX’s mother in respect of WKX’s person and circumstances requires an independent guardian. No independent guardian other than the Public Guardian was suggested by anyone.
74.Further, the Public Guardian’s Annual Report to the Board of 17 September 2013 indicates, as did the report of 6 October 2011, that WKX, for the most part, likes having a guardian and has expressed that he likes the Public Guardian to be the one making decisions for him.
75.Finally the Public Guardian is a statutory officer. The office was created by the Act to fulfil the parens patriae obligations of the Crown. The conduct of the guardian is subject to oversight by the Ombudsman and the Courts. The fact that the Public Guardian does not do what an interested person believes they should is no basis for considering an alternative guardian. The scheme of the legislation suggests the Public Guardian will generally be an appropriate guardian. Section 15(1)(h) provides that one of the Public Guardians functions is to act as guardian when appointed by the Board. Section 23 requires a guardianship order appointing someone other than the Public Guardian to be forwarded to the Public Guardian. If the Public Guardian had concerns about that appointment she could initiate a review of the order. In the view of the Board, while, in contrast to administrators, the factors the Board must consider in appointing the Public Guardian are no different to those to be considered in appointing a private guardian, it would take something more than unsubstantiated grievances about the conduct of the Public Guardian to justify preferring a private guardian. Significant advantages of appointing the Public Guardian are her independence from the influence of the interests of those who might wish to influence the represented person. In Holt & Anor v Protective Services Commissioner (1993) 31 NSWLR 227, Kirby P considered the advantages of appointing the New South Wales Protective Services Commissioner to manage the estate of a protected person. His Honour said at 242 that one of the advantages of the appointment of a statutory officer was the:
“dispassionate and neutral approach where there is the potential for family conflict and sharply divided views concerning the best interests of the protected person.”
In the Board’s view this is a case where that advantage exists.
76.For all of those reasons the Board is satisfied that, considering the matters referred to in section 21 of the Act, it is appropriate to continue the appointment of the Public Guardian.
KX’s suitability as a guardian
77.While the Board was not satisfied that any of the matters raised by KX justified removing the Public Guardian from her role as WKX’s guardian the Board considered whether KX would be an appropriate guardian for WKX in light of the requirements of section 21 of the Act. That section requires that before appointing KX as guardian the Board would need to be satisfied he met the requirements of s21 of the Act which are in summary:
a.He will act in WKX’s best interests;
b.He is not in a position where his interests conflict or may conflict with WKX’s interests.
c.He is a suitable person to act as guardian taking account of:
i.WKX’s wishes
ii.The desirability of preserving existing family relationships
iii.The compatibility of KX with WKX and any administrator
iv.Whether KX will be available and accessible to WKX so as to fulfil the requirements of guardianship.
78.In this case, as in many cases, there is significant overlap between the various considerations in section 21 of the Act, particularly what is in WKX’s best interests and KX’s suitability to be WKX’s guardian. The Board considered the following matters in respect of the satisfaction required by s21 of the Act.
Absence of actual or potential conflict of interest
79.There is evidence that WKX has raised an allegation of sexual misconduct by KX. Whether he has in fact done so and whether any such allegation is justified or not, the fact that such evidence exists creates a potential conflict between WKX’s interests and KX’s interests. The Board therefore cannot be satisfied that KX is not in a position where his interests and WKX’s interests may conflict. That would preclude the Board from or at least mitigate against the Board appointing KX as WKX’s guardian.
WKX’s wishes
80.KX did not give evidence about WKX’s wishes. In his application for emergency orders of 22 October 2012 he stated that WKX had asked him to “fight for his ‘Freedom’”. There was no other evidence that WKX’s wishes had changed, that he objected to the Public Guardian’s continued guardianship or that he wanted KX to be his guardian. The Board was not satisfied that WKX’s wishes justified KX’s appointment as guardian.
Preserving Family Relationships
81.Fostering relationships with WKX’s family is relevant to his best interests. KX’s ability and inclination to do that is also relevant to his suitability to act as guardian. The Board considers it unlikely KX would be able or inclined to foster such relationships.
82.When asked what he would do to foster a relationship between WKX and his siblings KX said he had no idea what contact they had with WKX now. He said he would need to know what their position was about it to start with. KX has no contact with WKX’s siblings because he says they “followed their mother’s wishes and allegations.”
83.KX agreed that there was value in continuing the relationship between WKX and his mother. When asked what he would do to foster that relationship he said he had tried for 25 years to foster her to be part of the family. When asked what he would do to make sure WKX had a relationship with his mother in light of the fact that she is not now part of the family KX responded rather enigmatically, “to ensure that I have a relationship with him.” When further questioned about what he would do to foster that relationship he said “those things that are possible”. When asked what those things were he said “those things would have to come.” He then said WKX would come first and the things that matter to WKX would be a priority and referred to getting WKX medically examined and attending to the things that had been neglected.
Accommodation
84.Another important consideration in respect of WKX’s best interests is WKX’s accommodation. KX stated that he considered XXXX was not the right place for WKX. He said if he was guardian he would arrange for a house to be built for WKX. He suggested that would be funded by the MAIB but he had not discussed that with the MAIB because he said that would be pointless.
85.When asked why XXXX was not suitable accommodation KX said that was because he was not allowed to go there. When asked what he could do better KX said WKX needed his “sole” Dad who has bonded with him. KX expressed the view that no-one else had bonded with WKX and specifically that WKX’s mother had not bonded with him.
86.Ms Clarke said that WKX had a very nice room with lifting equipment, that WKX seemed fairly busy and the Public Guardian had no issues with accommodation. Ms Collier said that WKX has an active weekly program helping him to achieve his goals.
87.In the Board’s view there is nothing to support the assertion that WKX’s accommodation at XXXX is inappropriate. The Board prefers the views of the Public Guardian, Ms Clarke and Ms Collier in respect of WKX’s accommodation to the assertion of KX to the contrary, particularly in light of the fact that KX has not been to XXXX recently and his only contact with WKX in the last 3 or 4 months has been a few times at bowling on a Saturday.
Other matters impacting on KX’s suitability
88.It was clear to the Board that KX cares very deeply for WKX. However the Board formed the view that KX considered he was the only one who had a meaningful relationship with WKX and had his best interests at heart and that his views of WKX’s best interests were the only legitimate views.
89.In addition KX was fixated on issues which he considered important. A clear example of that was the asserted ‘loss of sperm’. KX’s fixation with that issue is demonstrated by his evidence and conduct during the hearing. He said that if he was WKX’s guardian the first thing he would do would be to have WKX medically assessed in relation to his loss of sperm to establish the assault he alleged had occurred on WKX. That statement was made by KX immediately after dealing with questions from the Board about the steps he would take to foster a relationship with WKX’s mother. How having WKX medically assessed is related to fostering that relationship is not at all clear to the Board and further demonstrates KX’s fixation on that issue. KX interjected in Ms Clarke’s evidence to make the ironical comment that WKX should remain at the Public Guardian where he’s being refused medical treatment for that issue, again demonstrating the importance he places on that issue. He appeared to place more importance on that issue than WKX has done for the last 2 years. KX appeared unable to take an objectively reasonable approach to that matter as demonstrated by the fanciful process of reasoning he undertook to assert that WKX’s mother had administered a drug which had affected WKX’s sexual function. KX’s fixation on that issue and his inability to deal with it objectively mean he is unlikely to act in WKX’s best interests in respect of it. It is also likely to create conflict with WKX’s service providers and medical practitioners.
90.Ms Clarke indicated that arrangements had been made to provide KX with supervised access to WKX on Monday afternoons at the Door of Hope. That location was selected because it was close to KX and WKX’s carers would bring WKX to KX who was unwell rather than requiring him to come to WKX. However KX had not taken up those arrangements.
91.KX appears to have considered that the false allegations of sexual misconduct against him formed part of the reason for the requirement that he have supervised access with WKX. That may be so. Ms Clarke said the reasons had been fully explained to KX and he did not dispute that although he clearly did not agree with those reasons whatever they may have been.
92.However when asked what steps he had taken to have access with WKX KX responded that it was not suitable for him because someone else had to be sitting there. When asked why, if it was suitable for WKX, he didn’t pursue the access, he responded that it was not a suitable arrangement. The Board formed the view that KX has chosen not to pursue that access because he disagrees with the requirement for it to be supervised. He chooses to limit his contact with WKX to when WKX goes bowling on Saturdays rather than visit Vernon when the visit is supervised.
93.The Board considers that if KX genuinely sought to act in WKX’s best interests he would take the opportunity to visit with WKX within the stipulations set down by the guardian even if he didn’t think the restrictive arrangements were appropriate. He has not done that.
94.In the Board’s view the way KX approaches those matters are entrenched, relating as they do to issues which have been raised by him over many years. Despite KX’s lip service to acting in WKX’s best interest, the Board’s view is that his fixation on issues which he considers important, even when they have no objective substance or relate to his own personal interests, is not likely to lead to decisions which are in fact in WKX’s best interest.
Conclusion
95.The Board was satisfied that WKX suffered from a disability which made him unable to make reasonable judgments in respect of his person and circumstances and that he still needed a guardian with full powers. The principal issue was who that guardian should be. There was no suggestion that WKX’s wishes had changed in respect of that issue. The most significant factor to be considered was WKX’s best interests. The Board was not satisfied that any of the matters raised by KX justified varying or revoking the order to remove the Public Guardian as WKX’s guardian and the Board was satisfied that it was not appropriate to appoint KX as WKX’s guardian.
THE BOARD ORDERS
That the Public Guardian continue as the represented person’s guardian.
That the powers and duties of the guardian be those conferred by Division 3 of Part 4 of the Guardianship and Administration Act 1995.
That the order remains in effect until 16 September 2016.
DATED 31 October 2013
Ken Stanton Sue Hill Philippa Whyte
CHAIR BOARD MEMBER BOARD MEMBER
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