NDIA Accountability Project

Inquiry into Guardianship and Administration in Western Australia

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Inquiry into Guardianship and
Administration in Western Australia

Submission from the Mental Health Commission

Acknowledgements

Acknowledgement of Country

The Mental Health Commission acknowledges Aboriginal and Torres Strait Islander people as the traditional custodians of this country and its waters. The Commission wishes to pay its respects to Elders past and present, and extend this to all Aboriginal people seeing this message.

Recognition of Lived Experience

We recognise the individual and collective expertise of those with living and lived experience of mental health, alcohol and other drug issues, including their families and carers.

© Copyright

This work is copyright. It may be reproduced in whole or in part for study or training purposes subject to an acknowledgement to the Mental Health Commission. Reproduction for purposes other than those above requires written permission of the Mental Health Commission.

Table of contents

Acknowledgements 1
Acknowledgement of Country 1
© Copyright 1
About the Mental Health Commission 3
Our Vision: Western Australians lead healthy and fulfilling lives 3
Legislation administered by the Commission 3
Interaction between the Commission’s work and the guardianship and administration system in Western Australia 4

  1. The organisational capability of the Public Trustee’s office and the Office of the Public Advocate to represent and protect the human rights of vulnerable people. 5
  2. The organisational culture of the Public Trustee’s office and the Office of the Public Advocate and how this is impacting delivery of services to vulnerable people. 5
  3. The adequacy of mechanisms currently in place to resolve complaints, disputes, and allegations. 5
  4. Accessibility of information, including whether the Public Trustee’s office and the Office of the Public Advocate provide information to relevant individuals and organisations in a timely, fair, and transparent manner. 5
  5. Outcomes experienced by represented persons and their families because of decisions made by the Public Trustee and Public Advocate. 6
  6. Whether current oversight mechanisms are adequate to ensure guardians and administrators are held accountable for their decisions. 6
  7. The role and conduct of the State Administrative Tribunal as far as it relates to the above. 8

2 | Inquiry into Guardianship and Administration in Western Australia

About the Mental Health Commission

Our Vision: Western Australians lead healthy and fulfilling lives

The Mental Health Commission (Commission) facilitates the delivery of mental health, alcohol and other drug (AOD) services and programs, and leads the transformation required across the system to better meet the needs of the community into the future.

The Commission was established on 8 March 2010 to lead mental health reform throughout the state and work towards a modern, effective mental health system that places the individual and their recovery at the centre of its focus. On 1 July 2015, the Commission and the Drug and Alcohol Office amalgamated, establishing an integrated approach to mental health and AOD service delivery for Western Australia (WA).

The Commission is guided by the Western Australian Mental Health, Alcohol and Other Drugs Strategy

Legislation administered by the Commission.

The Commission is the agency principally assisting the Minister for Mental Health in the administration of the Mental Health Act 2014 (MHA 2014) and the Alcohol and Other Drugs Act 1974.

The MHA 2014 provides for the treatment, care and protection of people experiencing mental illness, particularly involuntary patients. The purposes of the legislation are:

  • to ensure that people experiencing mental illness are provided with the best possible treatment and care, in the least restrictive way and with respect for their dignity.
  • to recognise the role of families and carers in the treatment, care, and support of people with mental illness
  • to recognise and facilitate the involvement of people with mental illness and their personal support people in the consideration of the options that are available for their treatment and care.
  • to help minimise the effect of mental illness on family life.
  • to ensure the protection of people who have or may have a mental illness.
  • to ensure the protection of the community.

3 | Inquiry into Guardianship and Administration in Western Australia

Interaction between the Commission’s work and the guardianship and administration system in Western Australia

Introductory statement

The Mental Health Commission (Commission) is grateful for the opportunity to make a submission to the Standing Committee on Community Development and Justice in response to its Inquiry into Guardianship and Administration in Western Australia (the Inquiry).

The Commission has previously commented on the Guardianship and Administration Act 1990 (GAA) to the Law Reform Commission of WA’s Project 114, which was a 2-part discussion paper on the GAA. The focus of Commission’s submissions to Project 114 concerned amendments to the GAA, and the Law Reform Commission of WA’s final report was tabled in the Legislative Assembly by the Attorney General on Thursday 26 February 2026.

The Commission notes that, in contrast to the legislative focus of Project 114, the remit of the Parliamentary inquiry concerns interagency collaboration and service delivery. Nevertheless, there are areas of the legislation which touch on service delivery. The Commission’s comments to this Inquiry are developed in part from its submissions to Project 114.

Many people who have been subject to involuntary treatment orders under the MHA 2014 have also been, or are currently, subject to guardianship orders and administration orders. The Office of the Public Advocate in its 2024-2025 Annual Report, noted that, ‘mental illness accounted for the largest proportion of guardianship appointments of the Public Advocate as at 30 June 2025,’ representing 33% of people on guardianship orders (47).

It is unknown what proportion of represented persons (‘a person in respect of whom there is in force under the GAA an administration order whereby the Public Trustee is the administrator or a joint administrator of the estate of that person’, as defined in section 2 of the Public Trustee Act 1941 (WA)) have a mental illness or are subject to involuntary treatment orders. However, in its 2024-2025 Annual Report, the Public Trustee noted its increase in demand for its core services, with an increase of 19.3% new clients on the previous reporting period, including appointments by the State Administrative Tribunal (SAT).

The increase in people under orders also increases the potential of people failing to have their human rights upheld.

Part of mitigating such a risk is legislative. In comparing the protections under the MHA 2014 and the GAA, it is apparent that the MHA 2014 provides a more comprehensive and explicit statutory framework for the protection and promotion of human rights in terms of legislating a Charter, including international human rights in the Objects clause, in setting out other statutory rights such as the right to a further opinion and the right to freedom of communication, and the inclusion of four separate statutory oversight bodies, each with an

independent role in overseeing the system and the rights of people who become involved in it involuntarily.

However, legislative reforms, important as they are, can only address part of the potential risk inherent in the functions of GAA legislation. The manner in which public sector agencies carry out the duties under their legislative remit directly impacts on the experience of people affected by that legislation, and the guardianship and administration provisions in the GAA can have significant impact on human rights. Therefore, as a matter of public policy, agencies exercising functions under the GAA needs stringent oversight, transparency and the ability of the complaints of people subject to it, and their support persons, to be taken seriously, investigated, and reported on.

The Commission’s comments on the specific terms of reference are below.

1. The organisational capability of the Public Trustee’s office and the Office of the Public Advocate to represent and protect the human rights of vulnerable people.

The Commission supports modernisation of the operations of the Office of the Public Advocate and the Public Trustee which would:

  • enhance the recognition of human rights.
  • replace a substitute decision-maker approach with supported decision-making wherever possible.
  • seek first the ‘will and preferences’ of the represented person/person who is the subject of an application for guardianship and/or administration.
  • add safeguarding mechanisms beyond the protections offered by the SAT.

2. The organisational culture of the Public Trustee’s office and the Office of the Public Advocate and how this is impacting delivery of services to vulnerable people.

Nil comment.

3. The adequacy of mechanisms currently in place to resolve complaints, disputes, and allegations.

Nil comment.

4. Accessibility of information, including whether the Public Trustee’s office and the Office of the Public Advocate provide information to relevant individuals and organisations in a timely, fair, and transparent manner.

Nil comment.

5. Outcomes experienced by represented persons and their families because of decisions made by the Public Trustee and Public Advocate.

Nil comment.

6. Whether current oversight mechanisms are adequate to ensure guardians and administrators are held accountable for their decisions.

A robust system of oversight should be in place for guardianship and administration that includes agency accountability for their decisions.

This includes statutory requirements for guardians (whether family members etc. or public guardians) to keep records of decisions made, and the process by which they were made. Records should include dates and a brief summary of the views of people consulted.

A standard ‘decision form’ could be developed, to reflect a robust decision-making framework, and provide a clear process for a guardian or administrator to follow, while also serving as an official record.

In considering human rights approaches and freedom of information, the system should allow for an individual under guardianship to be able to access information and records that pertain to them.

Suggested methods of strengthening oversight and accountability

In recognition of the impost upon fundamental human rights, the MHA 2014 contains four statutory independent oversight bodies, each with different functions. Consideration may be given to these for applicability to the GGA. Oversight bodies include:

Mental Health Advocacy Service (MHAS) (Part 20)

The MHA 2014 requires that MHAS contact or visit involuntary patients: (adults within 7 days; children within 24 hours), ensure consumers are informed of their rights, that rights are observed, and wishes are made known. MHAS also identifies and raises systemic issues in the mental health system.

Mental Health Tribunal (Tribunal) (Parts 21 and 22)

The Tribunal is an independent decision-making body established to safeguard the rights of involuntary mental health patients. Its main function is to review every involuntary order made, but also make decisions regarding a range of other matters under the MHA 2014, such as reviewing admission of long-term voluntary patients, review orders restricting a patient’s freedom of communication. Decisions of the Tribunal may be reviewed by the SAT, and those decisions may be appealed to the Supreme Court.

Chief Psychiatrist (Part 23)

The Chief Psychiatrist is responsible for the treatment and care of all involuntary patients, accused persons with mental impairment detained in an authorised hospital, and other groups of patients specified in the MHA 2014. The Chief Psychiatrist publishes standards for treatment and care for mental health services and oversees compliance with those standards. The Chief Psychiatrist also has statutory powers to review treatment, inspect, request reports, monitor notifiable incidents and conduct investigations in response to notifiable incidents.

Health and Disability Complaints Office (HaDSCO) (Part 19)

HaDSCO has responsibilities under the MHA 2014 as an external, independent complaints body. HaDSCO reviews and identifies causes of complaints; provides advice and makes recommendations for service improvement; educates the community and service providers about complaint handling, conducting inquiries into broader issues arising from complaints received, and works in collaboration with the community and service providers to improve services.

Each of these independent statutory bodies provides an annual report to the Minister, which is tabled in Parliament.

Equivalent statutory assistance, advocacy and oversight should ideally be available under the GAA, particularly for guardianship and administration, that would complement the jurisdiction of SAT, and improve performance, transparency, accountability and rights protection.

Relevant safeguarding and oversight mechanisms could include, for example:

  • Establishing an advocacy body, like MHAS, whereby it would be a statutory requirement for all people subject to an application for guardianship and/or administration, is contacted and offered support and advocacy, explained any rights under the GAA; and assist the person in hearings of the SAT. See, for example, Independent Mental Capacity Advocates, established under section 35 of the Mental Capacity Act 2005 (UK).
  • Enshrining a right for the person to request a second opinion by an independent professional in regard to evidence before the SAT that the person does not have the capabilities and capacities listed under section 4(4).
  • Establishing an independent guardianship and administration oversight and complaints body. This could be a commission that oversees OPA and the Public Trustee, in the same vein as the Parliamentary Inspector of the Corruption and Crime Commission oversees the Corruption and Crime Commission, fulfilling the role of auditing operations, monitoring compliance with the legislation, assessing procedures and decisions made, and investigating complaints about processes, conduct of guardians and administrators, and treatment of represented persons.
  • Parliament establishing a Joint Standing Committee on the Public Advocate and the Public Trustee - in the same vein as the Joint Standing Committee on the Commissioner for Children and Young People monitors, reviews and reports to Parliament on the exercise of the functions of the children’s commissioner.
  • Enshrining a shorter duration for all guardianship and administration orders, for example two years instead of five years. This would bring about more frequent review of orders by SAT.
  • Introducing duties of guardians and administrators as to how powers are exercised (based on the Guardian and Administration Act 2019 (Vic)).

7. The role and conduct of the State Administrative Tribunal as far as it relates to the above.

Nil comment.

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mhc.wa.gov.au