ZJ
[2013] WASAT 12
•23 JANUARY 2013
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: HUMAN RIGHTS
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: ZJ [2013] WASAT 12
MEMBER: MS H LESLIE (SENIOR SESSIONAL MEMBER)
HEARD :27 NOVEMBER 2012
DATE OF ORDER : 27 NOVEMBER 2012
DATE OF ORDER 27 NOVEMBER 2012
WRITTEN
REASONS
DELIVERED : 23 JANUARY 2013
FILE NO/S: GAA 3229 of 2012
GAA 3230 of 2012
BETWEEN :ZJ
Represented Person
Catchwords:
Guardianship Need Profound disability Vulnerability
Legislation:
Guardianship and Administration Act 1990 (WA), s 43(1)(a), s 43(1)(b), s 45(1)
Result:
Public Advocate appointed limited guardian to determine treatment and services for represented person
Summary of Tribunal's decision:
<summary>The represented person is a profoundly disabled man whose needs, at the time of the hearing, were being well met with full time care from funded service provider agencies. He has an intellectual disability, is blind and deaf and has extremely limited communication, restricted essentially to tactile signing. He is mobile and has the physical capacity to participate in a range of activities. His parents are deceased and he has not had recent contact with his only sibling (whose whereabouts at the time of the hearing were unknown). He has no other relative or caring contact in the community to oversee arrangements for him. The Tribunal found that, although there were no current decisions required, and although he was presently well cared for, such is the level of his vulnerability and disability that, in the absence of the involvement of any other third party independent of the service provider staff with his interests at heart, he required the formal appointment of an independent guardian to ensure his protection, to oversee his circumstances and to promote his welfare and best interests.
</summary>
Category: B
Representation:
Counsel:
Represented Person : N/A
Solicitors:
Represented Person : N/A
Case(s) referred to in decision(s):
AS and AA [2007] WASAT 54
REASONS FOR DECISION OF THE TRIBUNAL:
Background
On 27 November 2011, the Tribunal reviewed a guardianship order made on 26 November 2007 (original order) pursuant to which the Public Advocate was appointed as limited guardian to consent to medical treatment or health care of the represented person, and to determine the services to which the represented person should have access.
The review hearing was attended only by the Public Advocate's representative, RS, who spoke to the report provided to the Tribunal for the hearing.
The Tribunal had the benefit of an uptodate report from FF, Coordinator of the Community Living Association which provides accommodation and services to the represented person. It also had the benefit of access to the various medical and other reports which were before the Tribunal when the original order was made.
Capacity
The represented person is profoundly disabled. He has an intellectual disability and is deaf and blind and, as a consequence, he has significant sensory impairments and communication difficulties. He uses hearing aids, but is described as 'non-verbal'. He resides in the house in which he has resided since he was a child, with full time support services. His parents are both deceased.
It was not in dispute, and the Tribunal was satisfied on the basis of the reports available, that the represented person meets the criteria laid out in s 43(1)(a), s 43(1)(b)(i), s 43(1)(b)(ii) and s 43(1)(b)(iii) of the Guardianship and Administration Act 1990 (WA) (GA Act). The represented person is a person for whom a guardianship order could be made. This is a proposition with which the Public Advocate also agrees.
Need
The question for determination is whether, in the current circumstances, there is a need for a guardian. These reasons address that question.
Specific decisions
In relation to the treatment and healthcare function, the Public Advocate states that the only decision that has been made during the currency of the order was a decision (made following an appropriate investigation into the question) not to proceed with a cochlear implant procedure. It appears that all other minor health issues have been managed by the represented person's carers.
The represented person is reviewed regularly by his doctor and is not, and has not been for the duration of the order, on any medication. The advice is that there is no anticipated future need for any medication to meet his ongoing health needs.
The represented person does not have any identified health conditions for which he would require treatment for the foreseeable future.
In relation to the services function, whilst the guardian was not required to consent (or to withhold consent) to the provision of any particular services during the period of the order, the guardian was involved in supporting referrals to, and applications for, increased funding in relation to the Strong Families Program and the Senses Foundation. It appears that the support programs designed for the represented person, and the activities in which he participates, have either been in place for a long time or have been arranged through his Disability Service Commission (DSC) funding package without reference of such matters to the Public Advocate.
The question of the represented person's participation in such programs or activities is unclear. It is accepted that he would not be forced into anything to which he was clearly indicating opposition. It is, however, unclear to what extent he has the wherewithal to exercise an active choice in relation to options put before him, or the extent to which he is able to conceptualise or to communicate enthusiasm for, or opposition to, any program or activity in particular; in other words, to what extent he is simply a passive participant included by reason of the choice and actions of others, namely, staff of the service providers.
Vulnerability
Notwithstanding the limited decisionmaking required of the Public Advocate described above, it is conceded by RS on behalf of the Public Advocate, quite rightly in my view, that guardianship is not just about decisionmaking.
The represented person is 26 years old. As previously stated, he is profoundly disabled. He has an intellectual disability, and is deaf and blind and, as a consequence, he has significant sensory impairments and communication difficulties. He uses hearing aids, but is described as 'non-verbal'. Communication is 'very minimal' through keyword (tactile) signing and some through voice, though it appears that there is uncertainty as to the represented person's level of comprehension.
FF's report describes the represented person as totally reliant on his support staff for all his daily needs and to manage his daytoday life. It appears that the decisions in which he himself can participate are very basic. Examples given are simple choices such as the choice between an orange or an apple, or a walk or a swim. He requires '24/7 support'.
FF describes the represented person as 'very vulnerable in all areas' and FF 'wholeheartedly support[s]' the need for a guardian to assist with the planning and management of the represented person's life.
At the time of the original order in 2007, the Tribunal had a report from the represented person's lifetime general practitioner, Dr M, in which he indicates that the represented person communicates slowly and with difficulty using sign language only, and that the represented person has had profound deafness and blindness since birth, which make assessment of his cognitive ability impossible. He notes that the represented person has little insight because of his disability.
In 2007, the Tribunal also had a report from SL, the then Community Living Association representative, in which she indicated that the represented person:
a)tends to keep to himself and not interact with visitors;
b)does not communicate verbally;
c)does follow simple instructions via tactile signing on his hand;
d)signs to support staff when he has wants or needs; and
e)would never be able to be left alone as he would get lost and disoriented very easily.
In her application to the Tribunal at that time, SL indicated that the represented person:
… is unable to make major lifestyle decisions. He [is also] unable to make day to day lifestyle decisions even on a smaller scale. Outside of his immediate needs, he would be unaware of how to ask for/approach major life decisions.
In 2012, at the time of the review hearing, the Public Advocate confirmed, and the Tribunal accepted, that the represented person:
a)resides in the house he previously shared with his mother and is supported by the Community Living Association (CLA) which provides around the clock support;
b)has good supports in place from both CLA and his Local Area Coordinator from the DSC;
c)receives specialist input from Senses Foundation and their DeafBlind consultant in relation to his sensory impairment;
d)has had assistance from the Strong Families Program in relation to the supporting and training of his support workers;
e)has recurrent funding from DSC that will remain with him for life. He has both accommodation support funding and Alternatives to Work funding. This funding provides around the clock care for the represented person, supporting him both in the home and to pursue various leisure activities in the community, such as tandem bike riding, surfing, walking and attending the local leisure centre;
f)is unable to express his views or wishes in relation to the question of guardianship; and
g)has only one surviving relative, a twin brother who visits rarely and, though he used to live in the same town, whose current whereabouts are unknown.
Is there a need for a guardian?
The Public Advocate confirmed that the DSC Local Area Coordinator would prefer a guardian to remain involved.
In her report, FF states that she 'wholeheartedly support[s]' the need for a guardian to assist with the planning and management of the represented person's life.
The Public Advocate's position, however, is that there are less restrictive alternatives currently in place and therefore there is no longer a need for a guardianship order. Revocation of the order is recommended.
As was said in AS and AA [2007] WASAT 54 (AS) at [53] [60]:
Another problem with the submission of the Public Advocate is that it isolates the determination of need from the role and functions of a guardian.
These matters were addressed by the Full Board of the former Guardianship and Administration Board in LGW [2004] WAGAB 4.
In LGW, [t]he Full Board appointed a guardian despite the fact that the person was being held in custody under the then Criminal Law (Mentally Impaired Defendants) Act 1996 (WA) and many of her rights had been subsumed in custody. In deciding whether the person was 'in need of a guardian' the Full Board took as its '… starting point [a] look at the statutory statement of the functions of a guardian to consider what role a guardian is intended to play'.
The functions are set out in s 45 of the GA Act:
'45. Authority of plenary guardian
(1)Subject to section 43(3), where a person is appointed as a plenary guardian, or 2 or more persons are appointed as joint plenary guardians, he or they have all of the functions in respect of the person of the represented person that are, under the Family Court Act 1997, vested in a person in whose favour has been made
(a)a parenting order which allocates parental responsibility for a child; and
(b)a parenting order which provides that a person is to share parental responsibility for a child,
as if the represented person were a child lacking in mature understanding, but a plenary guardian does not, and joint plenary guardians do not, have the right to chastise or punish a represented person.
(2)Without limiting subsection (1), a plenary guardian may
(a)decide where the represented person is to live, whether permanently or temporarily;
(b)decide with whom the represented person is to live;
(c)decide whether the represented person should work and, if so, the nature or type of work, for whom he is to work and matters related thereto;
(d)subject to Division 3, consent to any treatment or health care of the represented person;
(e)decide what education and training the represented person is to receive;
(f)decide with whom the represented person is to associate;
(g)as the next friend of the represented person, commence, conduct or settle any legal proceedings on behalf of the represented person, except proceedings relating to the estate of the represented person; and
(h)as the guardian ad litem of the represented person, defend or settle any legal proceedings taken against the represented person, except proceedings relating to the estate of the represented person.
(3)A plenary guardian may not
(a)vote in any election;
(b)make a will or other testamentary instrument;
(c)consent, under section 17 of the Adoption Act 1994, to the adoption of a child or under section 69(1)(a)(ii) of that Act to the adoption of a represented person; or
(d)under the Marriage Act 1961 of the Commonwealth, give consent in relation to the marriage of a minor, sign a notice of intended marriage or take part in the solemnisation of a marriage,
on behalf of a represented person; or
(e)consent to the sterilisation of a represented person except in accordance with Division 3.'
It is helpful to quote from the decision in LGW at some length ([33] [] [35]):
'… The scope of guardianship is therefore defined by the reference to the provisions of the Family Court Act. Section 68 of the Family Court Act defines ''parental responsibility'' as ''all the duties, powers, responsibilities and authority which, by law, parents have in relation to children'' …
In this regard, amicus pointed the Board to Dickey, Family Law (1997 Third Edition) which states that parental responsibility involves the power to determine such matters as the form of education that a child is to receive, the religion that the child is to be brought up in, the name by which a child is to be known, the place where the child is to reside, the diet the child is to receive and the persons with whom the child may associate. Dickey also specifically acknowledges that parental responsibility includes the power to make representations on behalf of the child. In the context of adult guardianship, this might take the form for example of making enquiries, obtaining information, seeking assistance, marshalling services or making submissions on behalf of the represented person as well as being the ''voice'' with legal standing to assert the best interests of the represented person. Dickey also notes that even under the narrowest view of guardianship, the concept signifies duties to the child ab extra, that is, a warding off, the defence, protection and guarding of the child, or his property from danger, harm or loss that may inure from without, as opposed to custody which essentially concerns the control, care and responsibility for a child in regard to his daytoday needs, food, clothing, instruction and the like [citingWedd v. Wedd [1948] SASR 104 at 106-107]. On this view, the description in s 45(1) encompasses not only ''authoritative'' decisionmaking but all the other duties, powers and responsibilities that a parent may exercise in relation to a child.
… In the end, we are driven back to the text of the legislation. It appears to us that the description of the functions in s 45(1) is clear in its terms. The references to the provisions of the Family Court Act in our view describe a bundle of responsibilities that often include decisionmaking but may also cover a range of other functions, duties and powers that attach whenever one has the equivalent of parental responsibility for the longterm and daytoday care, welfare and development of a represented person. This includes acting to assert and protect the rights and interests of the child against third parties and making representations on behalf of a person.'
And at [40]:
'We consider that for someone to be in need of a guardian there must be some issue that requires the Board to intervene to vest someone with clear legal authority in respect of matters ''relating to [her] person''. (see s 43(1)(b)(ii)). This will often be the need for a decision to be made with legal authority, but in an appropriate case can involve other functions within the compass of parental responsibility even though the ultimate authority to make a particular decision lies in the hands of another. Thus, we do not consider that the concept of need in s 43(1)(c) is restricted to the need to make an ''authoritative decision''. The question is whether there is a need for legal authority to act on behalf of the person with disability. We believe this view is consistent with the observations made in Re MM (2001) 28 SR (WA) 320 referred to above.'
At the time of the LGW decision, s 45(1) of the GA Act referred to the then 'specific issues order' which conferred responsibility for the daytoday and longterm care, welfare and development of a child. The change in the Family Court Act 1997 (WA) (and consequential change to the GA Act) to 'parenting order' maintains the reliance on the definition of 'parental responsibility' as noted in LGW. Although the terminology is different the scope of responsibility remains the same.
The relevance of LGW to the current case is twofold. Firstly, the extent of guardianship (as it relates to 'parental responsibility') is very wide and includes decisionmaking, advocacy, making representations, seeking assistance, marshalling services and ensuring protection. …
With respect, I entirely agree with those remarks, as extracted.
Findings
The evidence before the Tribunal is that the represented person is manifestly in need of a guardian. It would seem he is unable to adequately care for himself even at the most basic level and is totally reliant on others. He is extremely vulnerable. He is unable to plan or problemsolve for his future and appears to be able only to react (and then largely nonverbally) to his circumstances as they immediately present to him. He is only able to exercise the most basic of choices. He is mobile with assistance, but he is unable to see or hear. His communication is extremely limited. It is very unclear if he has any ability to protect himself or to remove himself from any situation by choice. He requires supervision with everything. As a consequence, the represented person is about as vulnerable as it is possible to be. He is potentially exposed to the possibility of abuse in many forms.
Given the represented person's profound level of disability and the absence of any current connection with, or interest shown by, any family or other caring person outside of those who are part of his funded care structure, I am in no doubt that the represented person needs a guardian at least to 'ensure his protection' in the way that a parent is charged with the responsibility '… to assert and protect the rights and interests of [a] child …'. I do not mean to suggest that the represented person is presently in any sense in need of protection from those charged with his care. From all reports, he is well looked after and is in as stimulating and caring an environment as can be arranged for him in current circumstances.
As a society, it is incumbent upon us to ensure that someone independent of the paid service provider is responsible for overseeing the arrangements for the represented person, to ensure that his needs are met in terms of his medical and health care, and the support services that are made available to him.
In addition, the Tribunal has long taken the view that it is not appropriate for service providers to be the de facto guardians for vulnerable disabled persons who are in their care. There will always be conflicts for service providers between the interests of their various clients. There will be resource and funding issues, staffing pressures and other such matters which impact upon the systems of service provision as between clients, despite the most altruistic and beneficent of intentions towards an individual client. In a time of such intense demand for, and such pressure on, limited resources, someone independent of 'the system' needs to be 'in the represented person's corner', ensuring that his legitimate share of the available resources is obtained and is best used to meet his needs as they are independently determined.
The represented person has no one to do this for him if he does not have a guardian. Again, in saying this, I do not mean to suggest that the represented person is in any sense not presently getting his proper share of the available resources, or that they are not presently being best used to meet his needs as they are presently determined.
Even if, given the represented person's level of relative wellness, his strong network of service provider support and his stable care environment, specific identifiable decisions are not needed, where appropriate, from time to time, his guardian may need to advocate for him, to make representations on his behalf and to seek assistance and marshal support for him.
The Public Advocate's representative has indicated that, in a circumstance such as this, the Public Advocate's benchmark standard for proactive contact with a client is a minimum of once a year; further, that in a case like this where there is not a series of obvious decisions to be taken, or ongoing matters requiring specific attention for a client, other than that benchmark annual contact, the Public Advocate would rely on the service provider agencies to bring matters to the attention of the Public Advocate where the attention of the guardian was required. It might be said that, other than in the context of an 'annual check-up', this amounts to the service providers acting as the de facto guardians for the represented person.
As I indicated at the hearing, the internal protocols set by the Public Advocate as to how she exercises her authority to properly 'ensure [the] protection' of persons for whom she is guardian and the extent to which she is limited in doing this by practicalities, geography and resource implications, is a matter for her and the legislators.
Conclusion
As was said in AS, 'need is not to be determined by reference to the difficulty the guardian might encounter in carrying out his or her function(s)'. In my view, this very vulnerable young man is entitled to have an independent guardian to ensure his protection, oversee his circumstances and promote his welfare and best interests in the way contemplated by Dickey (as quoted in LGW in the AS decision at [57].) The Public Advocate is required to take responsibility in these matters by overseeing his medical and health care treatment and the adequacy, suitability and appropriateness of the services and supports provided to him, and to advocate and make any decisions that may come up in the future regarding these matters.
Orders
Accordingly, in my view, the orders previously made appointing the Public Advocate as limited guardian to consent to medical treatment or health care of the represented person, and to determine the services to which the represented person should have access, should be confirmed for a further five years.
I certify that this and the preceding [34] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS H LESLIE, SENIOR SESSIONAL MEMBER
0