An Analysis of R [2026] WASAT 43
1. Introduction
In R [2026] WASAT 43, Dr E Marillier, Senior Member of the Tribunal, conducted a periodic review under s 84 of the Guardianship and Administration Act 1990 (WA) (GA Act) of the orders in place for a represented person referred to as R. The decision is short, but it draws together two propositions of practical importance to legal practitioners in Western Australia.
First, the revocation or lapsing of a community treatment order (CTO) under the Mental Health Act 2014 (WA) (MH Act) does not, of itself, support a finding that the represented person has regained capacity for the purposes of the GA Act. The two statutory regimes apply different tests, and a result under one does not automatically transfer to the other.
Second, where the represented person has shown improvement but is not yet able to manage independently, the Tribunal can structure an administration order that includes a discretionary trial of independent management. That mechanism allows the administrator to hand over progressively greater control of income to the represented person, while preserving the administrator's ability to terminate the trial if the evidence so warrants.
Together, these propositions illustrate how the Tribunal applies the s 4 GA Act principles, in particular the least-restrictive principle, in a way that gives the represented person, in the words of the decision, “both a goal and hope” (at [24]).
This article is directed at legal practitioners advising represented persons, applicants and family members in guardianship and administration matters in Western Australia, and at counsel preparing or responding to applications for revocation following a change in mental health status.
2. Relevant Legal Framework
The GA Act establishes a separate decision-making jurisdiction for adults in Western Australia. Section 4 sets out the principles to be observed by the Tribunal: the best interests of the represented person are the primary concern; the represented person is presumed capable of looking after their own health and safety, of making reasonable judgments in matters relating to their person, of managing their own affairs and of making reasonable judgments in respect of matters relating to their estate, until the contrary is proved; an order may not be made where there is an alternative means of meeting the person's needs that is less restrictive of their freedom of decision and action; any order must be in the least-restrictive terms; and the views and wishes of the represented person must, so far as possible, be ascertained.
Section 43(1)(b) provides that, before appointing a guardian, the Tribunal must be satisfied that the represented person is incapable of looking after their own health and safety, unable to make reasonable judgments in respect of matters relating to their person, or in need of oversight, care or control in the interests of their own health and safety or for the protection of others. Section 43(1)(c) requires that the represented person is in need of a guardian.
For administration, s 64(1)(a) requires the Tribunal to be satisfied that the represented person is unable, by reason of mental disability, to make reasonable judgments in respect of matters relating to all or part of their estate. Section 64(1)(b) requires that they are in need of an administrator. Section 84 provides for the periodic review of guardianship and administration orders.
The MH Act operates separately. Its purpose is to provide a regime for the involuntary treatment of mental illness, with safeguards including independent oversight. A CTO is one form of involuntary treatment order made under the MH Act. Whether a person is subject to a CTO turns on questions including whether the person has a mental illness for which treatment is required and whether less-restrictive options exist; the test is anchored in clinical and treatment criteria specific to the MH Act.
The GA Act and the MH Act apply different tests, addressed to different statutory questions, with different evidentiary thresholds. A finding by clinicians or by the Mental Health Tribunal that involuntary treatment is no longer required is not the same as a finding by the Tribunal that the represented person is capable, for GA Act purposes, of looking after their health and safety or of managing their estate.
The MH Act also constrains what mental health services may disclose about an involuntary patient to a third party without consent. Where the third party is a formally appointed guardian, the appointment generally clears the path for treating clinicians to consult with the guardian. Where the third party is not formally appointed, communication is constrained except where there is a severe risk to the patient (at [17]).
Before R [2026] WASAT 43, it was already settled in practice that the lapsing of a CTO did not automatically result in revocation of guardianship or administration orders. The decision is significant because it expressly states that proposition, and demonstrates how the Tribunal accommodates clinical improvement through tailoring of the order rather than revocation.
3. The Facts of the Case
R is described in the reasons as “a proud aboriginal man” approaching his 60th birthday (at [1]).
R has a formal diagnosis of schizoaffective disorder dating back to September 2009 (at [9]). He has had 21 admissions to hospital since 2009 (at [18]). Relapses and hospitalisations have generally occurred at times when R has been off his regular medication or affected by substance use (at [18]).
In September 2020, the Public Trustee was appointed as plenary administrator of R's estate, and the Public Advocate was appointed as his limited guardian (at [2]). In 2022, R's brother, C, was appointed limited guardian for a number of functions, alongside the Public Advocate as limited guardian for services. In 2023, C was appointed limited guardian for all the necessary guardianship functions. The orders were not changed on a 2024 review.
Some two years before the hearing, R was allocated Department of Housing accommodation. C and R explained to the Tribunal that the allocation was the result of R's pre-existing position on the housing waiting list, not a consequence of C being the guardian (at [10]). All parties agreed that stable accommodation had been a very important part of R's improved health (at [23]).
R was discharged from hospital in early 2025 and was placed on a CTO at that time. The CTO had recently been revoked or had lapsed (at [11]). R was uncertain whether he was meant to continue receiving depot medication, and whether he was meant to receive follow-up through the community mental health service or through his general practitioner (at [11]).
R submitted to the Tribunal that the revocation of the CTO meant that the Tribunal should find that he had capacity, and revoke the appointment of the guardian and the administrator (at [11]).
Medical and case management evidence before the Tribunal included:
(a) 2020 evidence from psychiatrist Dr V indicating that R was unable to manage a budget or pay bills, was unable to organise Centrelink payments without assistance, was chronically homeless, and lacked capacity to make medical treatment, accommodation and services decisions (at [8]);
(b) a March 2026 report from psychiatrist Dr B confirming the diagnosis, considering the condition static, and adopting a similar view of capacity to that held by Dr V in 2020 (at [9]);
(c) a report from case manager A noting strained or fractured relationships within the family (including with C), impaired insight, poor impulse control and fluctuating mental state (at [13]); and
(d) an update email from A indicating that R was relatively stable while compliant with medication, but inconsistent in his attendance at the clinic; he would attend, but rarely at the time scheduled (at [14]).
R has no phone, which makes it difficult for him to receive reminders about appointments (at [15]). His next depot medication was due on 27 May 2026 (at [16]).
Concerning finances, R's estate is simple; he receives the disability support pension. The Public Trustee organises payment of rent, utilities, ambulance insurance and a $50 per fortnight repayment to the Fines Enforcement Registry (at [21]). R manages an allowance of about $260 per week, paid in three instalments (at [22]).
R told the Tribunal that, as a smoker, he found it difficult to budget his allowance for both food and cigarettes (at [22]). C suggested that, if R had Centrepay set up for rent and utilities, he would be able to budget for the other essentials (at [22]). R indicated that, if revocation was not the Tribunal's decision, he would like the opportunity for a trial of independent management (at [22]). Towards the end of the hearing, R said “a trial would be nice” (at [25]).
4. Analysis of the Tribunal's Reasoning
The statutory regimes apply different tests
The Senior Member's reasoning addresses head-on the proposition that R put forward, that the lapsing of the CTO ought to result in revocation. The Tribunal observed (at [11]):
I note that the tests for whether a mental health patient undergoes treatment as a voluntary or involuntary patient are different from the tests for whether or not a person needs a guardian or administrator.
That is a short but important statement. The MH Act addresses the conditions for involuntary treatment of mental illness; the GA Act addresses capacity to make decisions and the need for substituted decision-making. A person may lack capacity for GA Act purposes while no longer requiring involuntary treatment under the MH Act, and conversely.
The mental health communication framework as part of the s 4 analysis
The Senior Member also accepted the practical evidence of case manager A that, if C were not appointed guardian, the community mental health service would be much more restricted in what they could communicate to C, and that under the MH Act it would require a severe risk to R before they could communicate without his consent (at [17]).
This is significant because the consequence of refusing to appoint a guardian extends beyond decision-making for the represented person. It affects the information flow that allows family members to support the represented person in remaining engaged with treatment, including with depot medication now required only every six months (at [16]).
The Senior Member treated this consequence as part of the s 4 GA Act analysis: the appointment of a guardian was not only the least restrictive means of meeting R's needs in his own right, but also operated to support the family-mediated supports on which his stability depended.
Vulnerability and the limits of clinical recovery
The Senior Member accepted that R was doing better than he had at times in the past (at [19]), and accepted that R had managed informally in his Department of Housing accommodation for nearly two years (at [20]). The Senior Member nevertheless found that R remained vulnerable in critical respects: his lack of insight into the need for medication, his uncertainty as to whether he should continue treatment, his impaired ability to retain and recall appointments, the reliance on case management as an intermediary to keep him aligned with depot administration, and the long history of relapse linked to non-medication or substance use (at [16], [18], [19], [23]).
The Senior Member therefore declined to revoke either the guardianship or the administration order outright (at [25]). The s 4 presumption of capacity had not been displaced in R's favour; on the medical evidence it had been displaced against him, and that medical evidence had not changed.
Tailoring rather than revocation
The Senior Member accepted that the improvement in R's condition should be acknowledged. The Tribunal said (at [24]):
I am persuaded by C and R that the improvement in R's condition appropriately would be recognised by an order which provides both a goal and hope.
The decision shows two ways in which the orders were tailored.
First, the guardianship order was substituted with a much narrower set of functions. The 2023 order, which had conferred legal and accommodation functions, was revoked. The new order conferred only treatment decisions and the determination of services to which R was to have access (Order 7).
Second, the administration order was reissued with an authorisation for a trial of independent management of R's Centrelink income, after the administrator had paid expenses they considered essential. Order 4 uses the non-exhaustive formulation “including but not limited to ambulance insurance and Public Trustee fees”, preserving administrator discretion to designate further expenses as essential. The reasons at [26] indicate that the Senior Member contemplated rent, utilities, food, clothing and medication costs, together with the Fines Enforcement Registry repayments, resting with R during the trial. The administrator retained the discretion to terminate the trial if no longer satisfied that it was in R's best interests, including where R was struggling to budget for essentials or contacting the administrator often for funds (at [27]).
The role of the represented person's voice
A notable feature of the reasoning is the weight placed on R's own articulated wishes within the s 4 framework. The Tribunal expressly took R's words “a trial would be nice” as the foundation of the trial mechanism (at [25]). The Senior Member did not, however, allow R's view that the lapsing of the CTO equated to capacity to determine the outcome. The decision thus illustrates the discipline of s 4: the views and wishes of the represented person must be ascertained and given weight, but they remain one factor in a best-interests assessment, and not the determinant.
5. Assessing the Consequences
The decision has a number of practical consequences for represented persons, family members and practitioners.
For represented persons
A lapsed or revoked CTO is not a passport out of guardianship and administration. Practitioners advising represented persons should ensure that the represented person understands this distinction at the outset of any review application, so that expectations are realistic. The decision also illustrates that genuine clinical improvement and articulated personal wishes can be recognised through tailoring of the order, including by progressively widening the scope of what the represented person manages.
For family members and informal supports
Where a family member is providing significant informal support and where information flow from clinicians is critical to the represented person's stability, the formal appointment of that family member as guardian can be the least restrictive means of preserving that information flow. The MH Act's confidentiality regime is not suspended merely because a family member is in fact involved.
For administrators and the Public Trustee
The trial of independent management mechanism imposes a discretionary, evaluative role on the administrator. The administrator must not only continue to pay essentials but must also assess whether the trial remains in the represented person's best interests. The decision identifies, at [27], two of the warning signs to look for: important bills going unpaid, and frequent contact from the represented person seeking additional funds.
For listing and review work
The decision was made with a relatively short review period of approximately 12 months, reflecting the experimental nature of the trial. Practitioners can expect short review periods to accompany trial-of-independent-management orders, so that the experiment can be assessed before the next allocation.
Quantification
The decision involves no monetary award. The economic dimension of the decision is the redistribution of decision-making over R's $260 per week allowance, against the background of a simple estate consisting of disability support pension income.
6. Worked Example
Consider this hypothetical scenario.
S is a man in his early 50s with a diagnosis of bipolar affective disorder. He has been the subject of a guardianship order for three years and an administration order for four years. His sister has been appointed limited guardian. The Public Trustee has been appointed plenary administrator. S has been on a CTO for the last 12 months following hospitalisation for a manic episode. The CTO has just lapsed. S has obtained a private rental property and has been stable for six months. He attends a periodic review of the orders and seeks revocation.
Argument for revocation (S's view)
S would argue that the lapsing of the CTO reflects clinical recovery, that he has been compliant with all treatment, that he is housed and self-supporting, that his sister is involved as an informal support, and that he is now able to manage his Centrelink payments independently.
Argument against revocation (administrator and clinician view)
The administrator and the treating clinician would argue that the GA Act tests are different from the MH Act tests, that the s 64(1)(a) and s 43(1)(b) thresholds are addressed to capacity and need rather than involuntary treatment, and that the medical evidence does not support a finding that S has the capacity to manage his estate or that he no longer needs a guardian for medical treatment decisions. They would argue that the formal guardianship appointment is necessary to permit the treating clinician to consult with the sister about ongoing pharmacological maintenance.
The R [2026] WASAT 43 approach
Following the framework adopted in R, the Tribunal could:
(a) decline to revoke the orders, reasoning that the lapsing of the CTO does not establish GA Act capacity;
(b) tailor the guardianship order to a narrower set of functions, such as treatment and services, removing legal and accommodation functions where the evidence does not support continuing them;
(c) authorise a trial of independent management of S's Centrelink income, after payment by the administrator of essentials such as Public Trustee fees, ambulance insurance and rent, with the administrator retaining a discretion to terminate the trial; and
(d) set a relatively short review period within 12 months to allow the trial to be evaluated.
This approach gives weight to S's views while protecting his housing, medication compliance and stability against the well-recognised risks of relapse following CTO discharge.
7. Practitioner Guidance: A Step-by-Step Framework
The following steps may assist practitioners advising represented persons, applicants and family members in matters where a CTO has lapsed and revocation of GA Act orders is sought or anticipated.
Step 1: Identify the precise statutory orders in play
Before advising, identify the precise GA Act orders in place (date, type, scope, functions) and the precise MH Act orders or arrangements (CTO active, lapsed, revoked, voluntary engagement). Distinguish lapsing from revocation: both have the same legal effect for present purposes, but they tell different stories about clinical trajectory.
Step 2: Manage the represented person's expectations early
Explain at the outset that the lapsing of the CTO is not, of itself, a sufficient basis for revoking guardianship or administration. Cite R [2026] WASAT 43 at [11] for the proposition that the tests differ. Avoid setting up the represented person for disappointment by allowing them to believe that revocation is automatic.
Step 3: Assemble the medical and case management evidence afresh
Whatever evidence is on file, assemble updated medical evidence addressing the specific GA Act tests in s 64(1)(a) (estate capacity) and s 43(1)(b) (health and safety, person, oversight). Treating clinicians sometimes write to the GA Act tests; sometimes they do not. A practitioner's request that a treating psychiatrist specifically address the GA Act criteria can sharpen the evidence considerably. Where the evidence is mixed, that mixed picture must be presented honestly.
Step 4: Consider the MH Act information flow
Identify whether there are family members or informal supports whose role depends on receiving information from treating clinicians. If so, evaluate whether removing the guardian appointment would constrict that information flow under the MH Act. Where it would, that is a factor weighing in favour of retaining at least a limited guardianship appointment.
Step 5: Consider tailoring rather than revocation
Where the represented person's circumstances have improved but capacity has not been re-established, consider proposing tailored orders rather than revocation. The two tools illustrated by R [2026] WASAT 43 are: narrowing the guardianship functions to those genuinely required; and seeking authorisation for a trial of independent management of income under the administration order.
Step 6: Frame the trial of independent management precisely
If proposing a trial of independent management, identify which expenses will continue to be paid by the administrator (essentials), and which will pass to the represented person. Draft a proposed order that mirrors the structure used in R [2026] WASAT 43, including the administrator's express discretion to terminate the trial.
Step 7: Address the s 4 principles in submissions
Submissions should expressly address each s 4 principle: best interests, presumption of capacity, less-restrictive alternatives, least-restrictive terms, and the views and wishes of the represented person. The Tribunal's decision shows that all five strands are alive in the analysis.
Step 8: Seek a short review period
Where a trial mechanism is sought, propose a review period of 12 months or less so that the trial can be evaluated. R [2026] WASAT 43 sets a review before 24 April 2027, approximately 12 months from the hearing.
Step 9: Document the represented person's stated views verbatim where possible
The Senior Member treated R's words “a trial would be nice” as the foundation of the trial mechanism. Practitioners should record the represented person's wishes verbatim in their instructions and in their evidence, both to comply with s 4 and because the represented person's voice can shape the relief that the Tribunal considers.
Step 10: Plan for the next review
Whatever order is made, advise on the review period and on the kinds of evidence that will be relevant at that review. If a trial of independent management is in place, advise that the administrator will be looking at indicators such as bill payment and frequency of requests for additional funds (at [27]).
8. Evidence and Arguments Available to Each Side
For the represented person seeking revocation
The represented person seeking revocation should put forward:
(a) updated medical evidence specifically addressed to the s 64(1)(a) and s 43(1)(b) tests;
(b) evidence of stable accommodation, including any evidence of independent maintenance of tenancy;
(c) evidence of ongoing engagement with treatment, whether through depot medication, GP follow-up, or other community mental health support;
(d) evidence of practical money management (bank statements, evidence of payment of bills, evidence of budgeting for essentials);
(e) evidence of informal supports that can step into roles previously played by formal appointments;
(f) the represented person's own evidence as to their wishes and capacity, given orally where possible; and
(g) submissions on the s 4 principles, in particular the presumption of capacity, less-restrictive alternatives, and views and wishes.
For the party seeking continuation of the orders
A party seeking continuation, typically the Public Advocate, the Public Trustee, a family member or a treating clinician, should put forward:
(a) the most recent medical evidence on diagnosis, capacity and risk of relapse;
(b) case management evidence on engagement, attendance and insight;
(c) evidence of past hospitalisations, particularly any pattern linking relapse to non-medication or substance use (compare R at [18]);
(d) evidence of the support that the formal appointment has actually provided (compare R at [16] - the intermediary role);
(e) evidence of the MH Act's effect on information flow if the appointment is revoked (compare R at [17]);
(f) evidence of practical financial vulnerability (for example, difficulty budgeting allowance for food and essentials, in R's case for food and cigarettes at [22]); and
(g) submissions framing tailored alternatives, narrower guardianship functions and trial of independent management, as the least-restrictive way of recognising improvement.
9. Key Takeaways for Legal Practice
Takeaway 1: A lapsed or revoked CTO does not equate to GA Act capacity. The MH Act and the GA Act apply different tests. Practitioners should resist any argument framed around the simple equation “no CTO equals capacity”, and should manage the represented person's expectations on this point at the outset.
Takeaway 2: Each statutory regime should be assessed on its own evidence. Updated medical evidence written to the GA Act tests is far more useful than a discharge letter or a summary of the MH Act position. Where time permits, ask the treating psychiatrist to address the GA Act criteria specifically.
Takeaway 3: The s 4 principles operate cumulatively, not as a checklist. The decision shows the Senior Member moving between best interests, presumption of capacity, least restrictiveness, and views and wishes, in an integrated analysis. Submissions that engage each strand will land more squarely than submissions that focus on one in isolation.
Takeaway 4: Tailoring is a legitimate response to clinical improvement. Where the represented person is doing better but is not yet capable, narrowing the guardianship functions and authorising a trial of independent management can recognise the improvement without compromising the safety net.
Takeaway 5: The trial of independent management is a structured, conditional handover. It is not a soft revocation. The administrator retains discretion to terminate. Practitioners should draft the proposed order in clear terms, identifying which expenses are essential and remain with the administrator.
Takeaway 6: A guardian appointment can serve as an information-flow mechanism under the MH Act. The decision recognises that, in practice, the formal appointment of a family member as guardian removes the MH Act's confidentiality constraints in respect of that family member. Where a family member is doing critical informal support work, this is a legitimate consideration in the s 4 analysis.
Takeaway 7: The represented person's articulated wishes can shape the relief. The Tribunal's adoption of R's words “a trial would be nice” as the basis of the trial mechanism illustrates that careful recording of the represented person's wishes can directly affect the form of the order, even where the broader application for revocation is unsuccessful.
Takeaway 8: Short review periods accompany experimental orders. Where a trial mechanism is in place, expect a review within 12 months and prepare evidence accordingly. The administrator's experience of the trial will be central.
Takeaway 9: Stable accommodation is a foundation, not a finding of capacity. Stable housing is a recurrent theme in the decision (at [10], [20], [23]). Accommodation stability is a critical protective factor, but it does not, of itself, displace the medical evidence on capacity.
Takeaway 10: The decision models culturally aware decision-making. The Senior Member opens the reasoning by identifying R as “a proud aboriginal man” (at [1]). The decision does not turn on cultural factors specifically, but the framing reflects the Tribunal's awareness that the represented person's identity, family relationships and lived experience are part of the s 4 analysis.
10. Conclusion
R [2026] WASAT 43 is a short decision, but a useful one. It crystallises a proposition that practitioners encounter regularly but often informally: that the lapsing or revocation of a CTO under the Mental Health Act 2014 (WA) is not a finding of capacity under the Guardianship and Administration Act 1990 (WA). The two statutory regimes serve different functions, apply different tests, and produce different outcomes.
Equally useful is the practical mechanism the decision endorses: a trial of independent management, set within a continuing administration order, with the administrator retaining the discretion to terminate. That mechanism gives effect to the s 4 GA Act principles in a way that recognises clinical improvement, gives the represented person agency, and preserves the protections that the underlying medical evidence still requires. In Dr Marillier's words, it is an order that provides “both a goal and hope” (at [24]).
For practitioners, the decision is a reminder that orders under the GA Act are not binary. The Tribunal has the tools to tailor outcomes, and represented persons, and those who advise them, benefit from advocacy that engages the full range of those tools.
All names used in this article are pseudonyms. The State Administrative Tribunal of Western Australia (Tribunal) expressly anonymised the reasons for party and witness confidentiality. No detail in this article is intended to identify, and no detail does identify, any party, witness or associated person.