ASA and WRA and CRA - [2005] WASAT 171

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: HUMAN RIGHTS

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION: ASA and WRA and CRA [2005] WASAT 171

MEMBER: MR J MANSVELD (MEMBER)

HEARD: 21 APRIL 2005
27 APRIL 2005

DELIVERED : 11 JULY 2005

FILE NO/S: GAA 98 of 2005

BETWEEN: ASA and WRA
Applicants
AND
CRA
Represented Person

Catchwords:

Guardianship - Presumption of capacity - Weight given to the different evidence

Legislation:

Guardianship and Administration Act 1990 (WA), s 4 and s 43

Result:

The application for guardianship is dismissed

Category: B

Representation:

Counsel:

Applicants: Self-represented
Represented Person : Andrew van Kemplen

Solicitors:

Applicants: Self-represented
Represented Person : Stephen Bottrill

Case(s) referred to in decision(s):

Review of Guardianship and Administration Orders in respect of MM (2001) 28 SR (WA) 320

Case(s) also cited:

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

The application

These reasons relate to an application for guardianship made on 9 February 2005 for CRA by one of his daughters, ASA and his son, WRA. The applicants are CRA's joint plenary administrators having been appointed by the Guardianship and Administration Board on 22 June 2004.
The Tribunal first heard the application on 21 April 2005. CRA did not attend but was represented by his solicitor, AVK. The hearing was attended by the applicants, AVK, LA, spouse of CRA, CMA, daughter, MCA, daughter and JT, soninlaw.
AVK advised the Tribunal of the availability of a report from Dr JFS, psychiatrist, who had completed a recent assessment on CRA's capacity. The parties at the hearing were agreed that Dr JFS had a good knowledge of CRA's mental health history and had seen him previous to the current assessment.
The hearing was therefore adjourned to enable the Tribunal to receive a report from Dr JFS.
The hearing was reconvened on 27 April 2005, the Tribunal having received the report of Dr JFS on 26 April 2005. CRA attended as did those present at the hearing on 21 April, 2005. A further addition to the attendees was RDA, a friend of CRA.
The question before the Tribunal is whether CRA is in need of guardianship because he is currently incapable of autonomous decisionmaking in his own best interests over aspects of his life.

The submissions of family members

Members of CRA's family present at the hearing gave evidence of their concerns for his safety and wellbeing in the context of the decisions that he makes for himself from time to time. In her oral evidence, the applicant, ASA, submits as follows:
"Okay. Firstly, I don't think that my father's capable of looking after himself, because I've been looking after him with help from family members for the last five years on a daily basis and I have a full understanding of what he's like, and basically not as much as probably […], my sister does, because she lives closer to him. But basically his routines on a weekly basis at least.
The reason that I don't think he's capable of looking after himself is that he's already proven himself to be irresponsible and destructive to himself through handling his finances in the way that he does. He's got into credit card debt, which has gone against everything the Tribunal set out for him and us a few months back when we got the administration order. Since that time he's proved himself, you know, not to manage his money in terms of going ahead, getting into credit card debt and not really having any money in his pockets.
Lastly, I just want to reiterate that my father's mental illness really shouldn't be on trial here. I think that his actions speak for themselves. And also, we are all under my grandmother's will, and in her will she understood that my father wasn't well and she particularly … she states in that will that he's to be protected from himself, knowing … I mean, she lived with him for many years and visited him in psychiatric wards and so she knew probably as much as we do, or maybe a little better, you know, that he does need help and he is a sick man.
So therefore, part of the reason that she said that in her will to protect him from himself was through dad spending money, getting himself into trouble. And the money that she left him was to look after … it was for him to look after himself for the rest of his life, and he's got one … one sort of track mind to spend that money before he goes. Before he dies he would like to spend all of it, and that's not the reason why the money was put into trust for him, or wasn't her wishes to allow him to gallivant around [overseas], and God knows what. But really, I really … you know, I looked after my grandmother for five months before she died and on her deathbed she was extremely concerned for dad."
[Tribunal]: What is it about your father, in your view, that prevents him from making decisions about where he should travel, which is understandably the basis of the application? What is it about him and his, in your view, impaired decisionmaking that stops him from making those sorts of decisions, carrying them through and dealing with them in that way?
[ASA]: Okay. Well, part of his illness is that he can't … he has no selfcontrol, and I think that that's the crux of this. He does things that he probably knows he shouldn't, but at the same time the drive is overpowering and he cannot control himself." (Transcript of hearing of 27 April 2005, pages 1011.)
About CRA's ability to maintain himself in [overseas], ASA further submits:
"Okay. Well, basically, my father has intentions of going to [overseas]. Now, the trouble that we've had trying to manage him here in Perth, between all of us, it's been quite a job. He's very timeconsuming, he's demanding and all those things. But the crux of the situation is that if he leaves for [overseas] the contact that we'll have with him will be minimal, and not only that, but the trouble that we've had to try and stop these credit card companies giving him credit has been so hard to manage that in Australia, I can't imagine what it would be like dealing with the [overseas] authorities.
[Tribunal]: Okay. So you have concern that if you're not involved in managing his health issues he will continue to make the credit card applications that he's done. Are there other concerns that you have in relation to what he will do that is not in his own best health interests?
[ASA] Sure. Well, he has problems … he's not happy with his medication, so he really isn't settled. He hasn't really found a medication that suits him and that he's happy with, and for that reason as well, if he was to leave before he got his medical condition under better control I think would be detrimental to his health, physically and mentally. Because when he's not on medication he doesn't … he doesn't look after himself properly in terms of eating, managing money so that he can buy food, you know, when he needs to. You know, he cannot … the amount of managing that we do as far as paying his bills, trying to with my sister's help as well get him treated medically and things like that, he won't have any of that over there, and … ". (Transcript page 14.)
The other family members present at the hearing essentially support this view. In his evidence, WRA, son and joint applicant, confirms the fact that CRA constantly works against the administration order by entering into contracts for credit card finance and how, in his view, that will eventually put strain on the sources of income available to CRA. He also assumes that CRA has stopped taking medication since December [2004] because, as administrator, he has not received any pharmacy accounts since that time.
The daughter, CMA, who has the most contact with CRA, states in her evidence that she understands her father's reluctance to take medication for his illness from time to time because of the longterm sideeffects. She goes on to say:
" … But at this stage, the prognosis for his illness is that his attacks of mania will become more frequent and more severe as he ages. That was something [Dr AA] has stated.
… But generally, you know, if he … his stress levels are managed and he's calm and he's got someone he can talk to about his health concerns, about the way he's feeling, his lifestyle and management issues, then you can sort of sort it out, get to the bottom of it and it will pass." (Transcript page 16.)
CMA's further evidence is that her father ostensibly manages his medication and has psychiatric consultations at least sixmonthly.
When asked what her view is about CRA's ability to initiate travel and to make the decision to travel overseas when he might not have the support he currently receives, she states:
"It's another difficult question. I can't answer yes or no, but I can give an opinion. Basically, I wouldn't want to take anybody's right away to go freely where they so wish. However, I have spoken to dad's trustee, [IL], in the UK who said that, in the past, dad had often got himself into financial difficulty in [overseas], and that has been a pattern that's set over many years. It's dad's love, [overseas], and medicine is his love and that's what he lives for, so it's a very difficult question. The only risk I would see [overseas] is exploitation because dad gives away all his money. The risk could be that he would give away his bread and butter money so he would not be able to eat, and … because he feels sorry for people. He does have a good heart in that way.
… So the risk of exploitation could be there financially. As far as organising his trip to [overseas], he has found a hostel, a bedsitter where he would have a room. He's been invited to go and study for the first year, so he's actually … at that capacity he's able to organise himself. There's another family member, [M] who's [sic] also said that if dad wishes to go he would help him set up a base [overseas] and he would oversee that. But it still leaves the question as to how dad will manage himself and his finances in terms of his … you know, his laundry and his food and those issues. That would have to be clarified." (Transcript page 17.)
The evidence of LA, CRA's spouse, includes a brief history of her experience of his mental illness, failed general practice as a consequence of his illness as she sees it, and his fairly regular visits overseas over the years.
When asked what she thinks will happen if CRA travels to [overseas], she answers:
" He's done that before on several occasions. He doesn't last there very long, and eventually somebody has to get him out of there. In the past it was his mother, through the trustees, if you like, but it was his mother who did that. Now he hasn't got his mother any more so it will have to be us or my children. And obvious … .
[Tribunal]: And would that be because of financial reasons?
[LA]: Well, he goes there with the hope that somebody's going to employ him, and I think the last time he was in [ … ] and my daughter, [ASA], went to visit him, and after sitting in his rooms for weeks and weeks they turned him down because of his mental condition, obviously. The other reason which I think … he won't last, I know that. He won't get a job because he hasn't worked for 20 years. I'm a little younger than he is, but I know what it feels to … you know, I know the amount of energy you have to work, and I have been with him [overseas] and I know how hard the work is there. It's extremely hard, you know. They were … well, anyway … .
Now, the other reason why he shouldn't go [overseas] is because, at this stage, he has applied for a visa in Australia. All the papers, everything has gone through, and we are afraid that if he leaves the country with no visa, he's going to find it very difficult to come back, if they allow him to come back. And the other thing is, he hasn't got anywhere else to go. He's got relations in [ … ] but they are distant relations there. His family are here, and we don't think he should travel under those circumstances." (Transcript page 22.)
The evidence about the visa is that the family has applied for a retirement visa for CRA in Australia, and that is close to finalisation. In his evidence, WRA states that CRA has been prepared to leave Australia without having his retirement visa certified, thereby putting at risk his ability to reenter the country.
In her evidence, MCA, another daughter of CRA, puts her concerns in this way:
"We all love our father, and he's a really loving but very, very difficult man. The issues as I see them are related … there's, you know, the mental health issue and the money issue and so on, and the question of capacity. Regardless, I know that people give medical opinions and so on, but we're here and our family pull together and we live with him more or less on a daytoday, weektoweek basis, and while we're not medical professionals, we have perhaps an understanding of what my father is like that I think some people can miss in an hour's session and so on." (Transcript page 24.)
" … And he's very delusional. He'll be telling people in five minutes how he's going to practice medicine and he's going to study. He just doesn't … he can't … he struggles to put himself in a realistic … what I think most people would consider a realistic understanding of the world and how things work." (Transcript page 25.)
" … He went to Sydney, I think about a year ago … You know, he'll sleep on the floor of a camping ground with his jacket under his head. He'll sleep in a train station in Sydney, you know, rather than pay the whatever it is for basic accommodation.
My real fears are that if he goes [overseas] he's going to give all this money away, be stuck somewhere in a country where people just are struggling to live anyway. Nobody will be there to help him, and he just doesn't have the ability to realise what he does now might affect his life in 5 or 10 minutes, and what that actually means. … I really do believe that, you know, the best thing for him, the best thing for the family and for everyone, and for him being able to stay in Australia and maintain a relatively independent lifestyle, is for the guardianship order to be granted." (Transcript pages 25 and 26.)
In his evidence, JT, a son in law of CRA, says that he has known CRA for 16 years and that "I have observed all the things the family has mentioned with regard to [CRA's] life, and I share all of those concerns" (Transcript page 40).

The evidence of CRA

Although represented, CRA chose as well to give evidence on his own behalf. As regards the current status of his mental illness and his ability to travel, he says:
"Well, can we come down to hard facts? The two psychiatric reports recent ones are completely clean. Two clean psychiatric reports on my mental state. My last admission to the bin with a manic attack was 14 years ago, right. Not too bad. I have to take a very little bit of a heavy tranquilliser to sleep, but I shall soon be coming off that.
Now, for practical proof of my competence in every way, I've just completed a sevenweek trip in the eastern states. I had eight addresses to call on of family and friends, and of the eight addresses, I called on seven, and as I can not only fly an aeroplane or could I could also sail a boat. So I was really quite clever to take a map from the school atlas with me to see where I was. And I was seven weeks on the road with $400 a week, and in the seven weeks on the road calling on seven different addresses, I didn't spend one night in a hotel; I spent two or three nights with various old friends, and in between, of course, I stayed at caravan parks.
I was thought a bit anomalous turning up at caravan parks with just a bedding roll, you know - a sleeping bag and pillow - and they didn't quite understand that, with a background in the dark continent, one is quite able to sleep on the ground or on the floor, and I'm glad I did … ." (Transcript page 31.)
Asked by the Tribunal whether travelling in this way (sleeping on the ground in a caravan park) is in the best interests of his health and safety, CRA says that his physical health is good, and further:
"Well, my response is to tell these people that I had an education a bit different from what you get in Australia. I left home when I was seven and then I went to a prep school a boarding prep school; a naval prep school. Then I went to [M], a public school of no particular standing except it's meant to be the hardest and toughest. And then I was in a good regiment. So, you know, if anyone thinks they're going to mess with me, well, bring them on." (Transcript page 32.)
CRA goes on to say that it is his intention to travel [overseas] to complete a refresher year for medical practice because he has been out of such practice for 23 years. He expects to be "highly employable" either as a general practitioner in a city environment [overseas] or on a mission station as an assistant, the latter if he cannot regain registration as a medical practitioner [overseas]. CRA says later that he has an interest in tropical medicine and would be "snapped up" in [ ... ] or the [ … ] "… or anywhere where they need a competent doctor who knows what it is like working in the tropics" (Transcript page 39). His initial plan is to work [overseas] for about 10 months and then come back to Australia and "see everyone".
When asked by the Tribunal to respond to his family's concerns for his safety, CRA says:
"Well, these days, with the satellite telephone … I mean, in the old days the telephone was a landline, and you had to go through the operator and it took a morning to get through. But the satellite telephone reaches everywhere and you can speak immediately on the phone. And then again, in the modern world, the aeroplanes are bigger and faster. For instance, to fly from Perth to [ … ] these days you do it in one hit. You used to come down in [ … ] for a fuelling stop. So they're nervous little things, you know." (Transcript page 35.)
CRA says that he manages his own medication. He takes a tablet at night to sleep and he is regulating the strength of the medication in an orderly way. He has found that if he ceases the medication, he cannot sleep. CRA is "quite happy" with Dr JFS as his current treating psychiatrist and would have no difficulty in finding a psychiatrist [overseas].
In response to the allegation that he mismanages his finances, CRA says:
"Well, now I get the most ridiculous letter you could ever get from a lawyer. 'How, in less than a year, you have incurred further debts now total a staggering £25,000?' Well, how can £25,000 be a staggering debt when your mother's just left you 2 million? Is that 1 point what is it? 1.2 per cent. You know, I was a real demon, wasn't I, running through 1.2 per cent of what mum left for me? A real demon, eh. 1.2 per cent, just running through it. A staggering 25,000 quid. Oh, yeah, staggering, eh. Aren't they silly, these people?" (Transcript page 39.)

The submission of AVK, CRA's legal representative

As CRA's legal representative, AVK's principle submission is that, on the medical evidence available (discussed later in these reasons), the presumption of capacity has not been displaced. He says that CRA has recently travelled alone to several different locations, including the eastern states, without major incident. AVK questions the relevance of the discussion of CRA's financial situation to the question of guardianship.
AVK submits that CRA has been very candid about his mental illness with the university representatives [overseas] and that he has been welcomed to undertake a postgraduate course. CRA is still registered [overseas] as a medical practitioner (shortly to lapse) but he is unable to currently practice because of the requirement of the continuing professional development programme. If CRA eventually wishes to practice [overseas], then that is between him and local Medical Practitioners' Board. In summary:
" … Basically, you know, all I can say is that [CRA], you know, at 71 wants to spend his declining years [overseas]. He has the support of certain members of his family who've opted to facilitate this. He is quite confident that he can do it on the amount that his administrators have said that they will allow him every week. You know, he's gone as far as organising his accommodation at the hospital, of being accepted as a postgraduate student rather than a medical practitioner. I understand that the family has concerns. I don't think the visa issue is of great concern because, from my understanding, that has nearly been completed, and once he has his retirement visa, that will be valid for four years, and then usually twoyear extensions thereafter for that part of the visa. And I think it's the situation where, despite the problems [CRA] may have had in the past, he still does have the capacity and can still take care of himself and deserves to be allowed the right of selfdetermination." (Transcript page 28.)

The medical evidence

The Tribunal has before it three medical reports. In chronological order, they are from Dr PW (undated) received by the Guardianship and Administration Board on 16 June 2004 in relation to an application for administration, from Dr AA, consultant psychiatrist dated 17 March 2005, and most recently from Dr JFS, psychiatrist dated 18 April 2005.
A the time of her report, Dr PW was CRA's general practitioner, and had been so for approximately 18 months. She states CRA suffers from "manic depression" and, in her opinion, was then incapable of making reasonable decisions in relation to his personal health care and financial affairs, but she was unsure whether he could make reasonable decisions in relation to his living situation which includes accommodation issues. Dr PW expressed a concern that CRA was at that time not cooperating with " … proper psychiatric management" and that his prognosis was "poor".
Dr AA's report states that he had last seen CRA in October 2004 and that there were " … no clinical suggestions of incapacity when I saw him in October 2004". CRA's prognosis was said to be "reasonable" and that he appeared not to have had a major relapse of his illness since Dr AA's first contact with him. Dr AA found CRA to have capacity to make reasonable decisions in relation to his health care, living situation and financial affairs.
The report and assessment from Dr JFS is the most recent, and includes an understanding of CRA's mental health circumstances over a period of time. In his report, which is addressed to AVK, Dr JFS states that he has diagnosed CRA with "bipolar 1 disorder", and last examined him on 13 April 2005. On that last examination, CRA was found to be competent to make decisions regarding his daytoday care and welfare, and did not present with psychotic features. In his time as CRA's treating doctor, Dr JFS has not witnessed any relapse of his manic depression. Dr JFS finds that CRA is compliant with his prescribed medication. In completing his assessment, Dr JFS has discussed CRA's condition with Dr AA.
The Tribunal decided to take oral evidence from Dr JFS so he could elaborate on his assessment and be questioned on it specifically in relation to the guardianship issues brought by the applicants. The Tribunal spoke to Dr JFS by way of telephone conference.
[Tribunal]: " ... I just wanted to, in my own mind, clarify some points in relation to your report with regard to [CRA], and the application that we have before us is a guardianship application, and it really speaks to the issue of [CRA's] capacity, if you like, to travel, and concerns have been expressed by his family as to his safety were he to be travelling in foreign countries, and so forth. And we've asked [CRA] what his intentions are in that respect, and he's indicated to us that it is his proposal that he travel [overseas] where he will be undertaking an internship under the supervision of a professor of obstetrics for the purposes of a year and, upon
…
Upon further questioning, the Tribunal asked [CRA] what he would do, or what his intentions were in that regard, and he indicated that it was his intention to seek some form of employment [overseas] and, failing that, he would pursue potentially alternative occupation in tropical medicine in other parts of the country, indicating that, were he to fail to receive his registration, he would be prepared to pursue, if you like, employment as an assistant in a sort of semimission capacity.
And, I guess, the evidence that's been presented to us by the family is that they would have some concerns about the prudence of that in terms of his decisionmaking, and his safety in that regard. I was wondering whether you could comment, on the basis of your interview with [CRA], as to whether there are any mental health implications or any concerns that you might have about the prudence of that as a pursuit …
[DR JFS] … What I did [ … ] was independently make a diagnosis of bipolar 1 disorder. Having done that, I then had an opportunity to talk to [Dr AA], who is a consultant psychiatrist at […], and with [Dr AA], I raised concerns that I had had mentioned to me by [CRA's] previous psychiatrist, who is [Professor G]. Now, to me, it's very interesting that [CRA] has experience working [overseas], I believe [ … ], where [Professor G] used to work, and [Professor G] also ‑ ‑ he has experience with psychiatry in the [ … ] as well, so I felt that [Professor G] was in a very good position to make an assessment of [CRA's] longitudinal ability to work, and [Professor G] had doubts on [CRA's] capacity to work as a doctor.
Now, I raised that issue with [Dr AA], and [Dr AA] ‑ ‑ his interest is not so much in [CRA's] ability to work as a doctor but in his ability to remain well in the community, and [Dr AA] assured me that, with the use of the outreach facility for […] and the frequent visits and the support that he had in the community, that he did not feel that [CRA] was not up to ... (indistinct) ... the job. So, essentially, that was a separate issue to be decided.
… So, on the basis of supporting diagnosis and the comments of the longitudinal history, primarily from [Dr AA], and also having raised those concerns with [CRA], I took the view that he was able to manage his affairs and that we didn't have grounds under the Mental Health Act to invoke any involuntary orders for his welfare.
Now, the second issue is the concern about whether or not he will remain well if he travelled off [overseas], and when I last saw him, [CRA] stated that he had spent several weeks in the eastern states and had been able to manage his affairs, and visiting people in several states, and travel. And on that basis, I took the view that he was able to travel at least in Australia …
[Tribunal]: … So in terms of, say, paragraph 1 of your report dated the 18th of April, you made some comments about CRA having the capacity and is competent to make decisions regarding his daytoday care and welfare, and does not present with features which would indicate psychosis.
[DR JFS]: Well, that was certainly true when I last examined him on the 18th of April, and at no time in his initial referral to me, which was in July 2002, have I managed to elicit any psychotic features. At no time have I thought that his condition was sufficiently severe to warrant a diagnosis of being psychotic.
[Tribunal]: Just so that I can state again what I thought you said, was that, in part, predicated upon the view that he had access to a competent outreach service and that in terms of his capacity to function effectively within the community, within at least the […] area, you were confident that he could maintain, if you like, his own autonomy and be safely managed in that environment?
[DR JFS]: This is where we get to the issue of medication. Now, medication has beneficial and detrimental facets, and with the bipolar disorder, there are times when more medication is needed than at other times, and, generally, the best way to manage a patient is under the supervision of a medical practitioner who knows the patient well and can gauge the level of medication. In [CRA's] case, his longterm use of neurolectics [sic] I believe has caused some tardive dyskinetic sideeffect, so there are some disadvantages for being on longterm neurolectic medication. But the fact that he has those sideeffects indicated that he has been compliant on medication for a very long time …
… And some of the symptoms of his condition the insomnia, for example are incongruent with his mood. He's dysphoric due to insomnia. So he's actually motivated to remain compliant.
The next point is that, with the new atypical antipsychotics, they do have an effect of bolstering mood as well as restoring elevated mood to ... (indistinct) ... levels. And they have fewer tardive dyskinetic sideeffects. And with the Seroquel that he's been prescribed now, and I believe he is compliant on, I think that his prognosis for remaining well is relatively favourable, and he wishes to continue to take the medication because, in some ways, it has less sideeffects, which have been quite troubling for him … .
… Obviously [CRA] does have bipolar disorder. It's a longstanding disorder that's likely to continue. Does that preclude people from travelling overseas? Well, not always, if they're stabilised and they can demonstrate over a long period of time compliance with medication and not having episodes of breaking down. My view is that [CRA] has demonstrated that degree of stability and that degree of insight into his condition, and if what he's suggesting is that he's going to be in a medical facility [overseas], one would hope that there would be access to medical supervision there and that he would engage the services of someone, as he did engaging my services, which would be the sensible thing to do.
Because we don't have a history, certainly since 2002 since I've been seeing him, of him requiring regular involuntary admissions, I take the view that, at least for that period, there's not been the precedent of a need for a committal order. Therefore, if he hasn't had to be committed and he's compliant with medication, the past should predict the future wellness.
Of course, he's an experienced traveller who's lived [overseas] before, and [overseas] is a completely different environment to being in Australia. One would assume, if he was attached to a medical facility with some kind of medical supervision, that in that case, he would, if he did relapse, have the benefit of support from his colleagues.
[Tribunal]: … In terms of the decision and the notion of CRA travelling [overseas] to pursue this medical vocation, and his interest in either doing that or going to practice tropic medicine elsewhere, is there a concern at all in your mind that that may be reinforcing some of the elements of his mental illness and the illness for which he's received treatment?
[DR JFS]: … But as I say, I prefaced all my remarks with the discussion that I had with [Professor G]. [Professor G] raised concerns about [CRA] working as a doctor, and with …
… But what we're really trying to decide is whether or not he's shown the capacity to travel to another country, and I think, on balance, taking all things into consideration, that that is probably a fair thing; that he be allowed to do that. We have our concerns, but I don't think those concerns are bound to deny him his right to travel.
His right to practice is a whole different matter …
[Tribunal]: … There may be a concern that actually the premise for this travel and the travel itself may indeed reinforce the mental health difficulties that have manifested themselves over some time. That is, the notion that [CRA] has indicated that he wishes to travel [overseas] to assist and practice as a doctor, and to assist the individuals of [overseas]. … seeking some clarity as to whether the actual premise for the travel may or may not be reinforcing his mental health difficulties, and that, to be allowed to travel may, if you like, sustain those difficulties.
[DR JFS]: What we say is the premise is we define that phenomenologically, … which hinges on whether or not he has overvalued ideas or delusional ideas. If he has overvalued ideas, they are fixed and unshakeable. They're outside of cultural norms. We have to realise that [CRA] is a doctor, he's probably a very capable doctor. I find him extremely knowledgeable [sic]. He recently passed examination. So he comes from that culture of being a medical practitioner. I don't believe he's delusional in any way, and I haven't found him to be psychotic, out of touch with reality or delusional. But, sure; I mean, there may be some unrealistic wish within him to continue to practice as a doctor. That really needs to be decided by the level of care that's around where he intends to go. Whether or not he should be denied going [overseas] is really what's to be decided, and though we have concerns, those concerns don't amount to enough, in my book, to restrict his freedom to do that." (Transcript pages 48 56.)

The relevant law

When considering guardianship, the Tribunal must be satisfied that the person is someone for whom a guardian could be appointed (the question of capacity) and if found incapable, whether the person should have a guardian appointed (the question of need). This twostep process was expressed in Review of Guardianship and Administration Orders in respect of MM (2001) 28 SR (WA) 320 at 320 332, a decision of the Full Board of the Guardianship and Administration Board.
The twostep process is such that an exploration of need only occurs if the question of capacity has been determined against the person for whom the guardianship order is sought. Section 43(1)(b) and s 4(2)(b) of the Guardianship and Administration Act 1990 are relevant to this initial enquiry into a person's capacity. They provide:
"43. Making of guardianship order
(1)Subject to section 4, where the State Administrative Tribunal is satisfied that a person in respect of whom an application for a guardianship order is made under section 40
(a)       … ;
(b)       is
(i)incapable of looking after his own health and safety;
(ii)unable to make reasonable judgments in respect of matters relating to his person; or
(iii)in need of oversight, care or control in the interests of his own health and safety or for the protection of others;
and … "
"4.      Principles stated
(1)In dealing with proceedings commenced under this Act, the State Administrative Tribunal shall observe the principles set out in subsection (2).
(2)(a)      The primary concern of the State Administrative Tribunal shall be the best interests of any represented person, or of a person in respect of whom an application is made.
(b)Every person shall be presumed to be capable of
(i)looking after his own health and safety;
(ii)making reasonable judgments in respect of matters relating to his person;
(iii)managing his own affairs; and
(iv)making reasonable judgments in respect of matters relating to his estate,
until the contrary is proved to the satisfaction of the State Administrative Tribunal."
The criteria in s 43(1)(b) are disjunctive. Any one of them can provide grounds for a guardianship order. When s 43(1)(b) is read together with s 4(2)(b), it provides the legislative test of capacity with the presumption that a person is assumed to be capable of doing whatever is being questioned by an applicant, until the contrary is proved to the satisfaction of the Tribunal. In the case of CRA, the applicants are questioning his capacity to make reasonable decisions about overseas travel and his ongoing mental health care.

Summary and discussion of the evidence

From the evidence given, the submissions of family members supporting the appointment of a guardian for CRA can be categorized as follows:
a)CRA has a long history of mental illness, and his mother was sufficiently concerned for him that, prior to her death, she arranged for income and capital trusts to be established so he would continue to have funds but not be in control of the trusts;
b)his mania will worsen as he ages;
c)he has no self-control, he is delusional and struggles to maintain a realistic view of the world;
d)he is irresponsible and selfdestructive, particularly in the way he deals with his finances;
e)he needs protection from himself. He puts himself in danger by such behaviour as sleeping in the open at caravan grounds or railway stations as he did in his most recent trip to the eastern states;
f)there is fear for his safety and wellbeing if he travels [overseas];
g)he requires daily assistance and care management by family members and others. If he travels overseas, that support will be lost and he will soon get into difficulty;
h)the family has a better understanding of him than medical professionals;
i)he won't have sufficient medical support overseas;
j)he could be exploited overseas, as he prone to give away his money. If that happens, he is unlikely to be able to support himself;
k)he has done this before (travel overseas), and he hasn't been able to sustain it for very long. He then needs to be rescued, which, in the past, was a task undertaken by his mother but which now would be left to his spouse and children;
l)he has previously travelled overseas in the unrealistic hope that someone will employ him, but he has failed to secure employment. He intends to go through this again; and
m)he should not go overseas because he is still in the process of applying for a retirement visa in Australia.
CRA and his legal representative have submitted to the contrary. This can be categorized as follows:
a)the medical evidence available to the Tribunal does not displace the presumption of competency for CRA. He has not been hospitalised for his illness for 14 years;
b)CRA has recently travelled to several locations in the eastern states without major incident. His life experiences have prepared him to be able to sleep rough, and he is in good physical condition;
c)the discussion about CRA and the management of his finances is not relevant to the question of guardianship. In any case, the money he has used is only just over one percent of his entitlements to the Trusts established by his mother;
d)CRA has the support of some family, and a partner of one of CRA's daughters has said he will assist CRA set up a base [overseas] if that is what he wants;
e)CRA has travelled [overseas] before and knows the place well. For the coming visit, he has organized his accommodation and has been accepted as a post-graduate student at a university [overseas];
f)the visa issue is not of concern because that has nearly been completed, and once issued, it is valid for a number of years; and
g)CRA can still take care of himself and deserves the right of self-determination.
The placing of the family's evidence against that of CRA leads ultimately to the Tribunal attributing differing weight to the opposed positions, based on a judgment of the probability that one position is more likely to be the case than the other in the context of the legislative requirements. Where possible, information is sought external to the positions held which might corroborate or favour one position over the other.
In the case of CRA, such evidence available to the Tribunal is the medical evidence, particularly that of Dr JFS.
The report of Dr PW is not given much weight by the Tribunal given that it is almost two years old, and the assessment of "poor prognosis" has not, in the Tribunal's view, been subsequently realized. The report of Dr AA is of greater value, as it is more recent than that of Dr PW and reference is given to his opinion in the evidence of Dr JFS further to their communications.
The Tribunal has placed significant value on the evidence of Dr JFS. It provides current specialist assessment about the effects of CRA's mental illness on his ability to make reasonable decisions for the management of his illness in the context of his intention to travel overseas.
Dr JFS states that CRA suffers from a longstanding bipolar disorder. His opinion is that CRA has a degree of insight into his condition and that he manages his own illness in an appropriate way. Dr JFS evidences CRA's lack of need for involuntary admission to a mental health facility over many years as providing some substance to the notion that he has been compliant with medication. If CRA were to travel overseas and needed medical support, given he would be in the surroundings of a medical establishment, he would hopefully engage the services of a practitioner much the same as he has engaged Dr JFS. Additionally, he would have the benefit of the support of his colleagues.

In his evidence, Dr JFS states that, in his opinion, CRA is not delusional in any way although he may have an unrealistic wish to continue to practice as a doctor. On balance, Dr JFS is of the view that CRA can presently make a capable decision to travel overseas.

Findings of the Tribunal

The Tribunal accepts from the evidence that CRA suffers from a mental condition known as bipolar 1 disorder which requires ongoing treatment and management. The condition is currently stable according to Dr JFS, but no doubt when unstable, is likely to impair CRA's judgment when making decisions about his life. The Tribunal does not accept, as the applicant and other family members contend, that CRA is permanently incapacitated in his decision-making on matters to do with his person, in particular medical treatment and decisions to travel. If incapacity occurs, it is likely to do so as a product of the very nature of his illness which manifests episodically, especially if CRA is non-compliant with his medication. This is consistent with the assessment of Dr JFS who has seen CRA since July 2002 and who, at no time, has assessed his condition as sufficiently severe to warrant a diagnosis of being psychotic.
The applicant and other family members have provided the Tribunal with their experience of CRA's behaviour and how, for them (and formerly for CRA's late mother), it has involved rescuing him from situations over which it is said he has lost control. The recent experience of the family centres on CRA's apparent attempts to challenge the order for administration by successfully applying for credit card finance without the approval of the administrators, spending from that income source, and there being no explanation as to how the funds have been expended other than perhaps that he is a very generous man and gives his money away.
CRA's alleged history of financial recklessness and the way he currently responds to his perceived entitlement to manage his own finances is put by the applicant to demonstrate that CRA's general conduct is irrational, and this is further supported by his intention to resume practicing medicine when there is little or no hope that he will be able to do so. However, the fact of CRA's financial indiscretions and the fact that he is under administration pursuant to the Act does not, of itself, support the view that CRA is incapable of making lifestyle decisions. The capacity tests for administration and guardianship are different, and the Act permits limited orders to be made on the clear intent of the legislation that people may lack capacity in certain aspects of their lives but not in others. As to CRA's wish to recommence medical practice [overseas], the Tribunal accepts the view of Dr JFS that, though this may be unrealistic, it has yet to be determined and, of itself, does not turn on CRA's ability to travel. The Tribunal accepts that not being able to practice might, if it eventuates, pose a problem for CRA having sufficient income to remain overseas, but this is a matter for him and his administrators to consider at that time.
The Tribunal accepts the evidence of the applicant and other family members, and supported by Dr JFS, that CRA needs to have available to him medical and social supports as part of the ongoing management of his illness. The applicant argues this is mainly provided by the family and would not be available [overseas], the implication being that this will eventually lead to CRA's decompensation. The Tribunal agrees there is a risk, but observes that CRA has arranged his own accommodation overseas in a facility which has medical supports, a family member has agreed to assist him to establish himself there, and there is evidence that CRA seeks specialist assistance when the situation demands it, as he has done with Dr JFS. The Tribunal further notes that CRA recently travelled alone to the eastern states for about seven weeks without major incident, and no evidence has been proffered that he suffered a relapse of his mental illness during that time away from his usual support systems.
As regards the concern that CRA might travel [overseas] without having a valid visa for his return to Australia, the Tribunal understands from the evidence that this matter is near completion and that CRA is aware of the importance of the document.
This evidence of the applicant and other family members is powerfully put, and the Tribunal accepts that CRA continues to present his family with concerns for his wellbeing. The Tribunal does not, however, find this evidence sufficiently compelling to warrant the immediate removal of CRA's right to act autonomously in his personal decisionmaking, in particular, the right to travel overseas and to manage the ongoing treatment of his illness.
The Tribunal finds that CRA does not satisfy the provisions of s 43(1)(b) of the Act, and pursuant to s 4(2)(b) of the Act, the presumption of competency has not been displaced.

Decision of the Tribunal

It is the decision of the Tribunal that the application for guardianship be dismissed.

I certify that this and the preceding [49] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR J MANSVELD, MEMBER