BG
[2016] WASAT 39
•9 MARCH 2016
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: BG [2016] WASAT 39
MEMBER: MR J MANSVELD (SENIOR MEMBER)
HEARD: 6 JANUARY AND 23 FEBRUARY 2016
DELIVERED : 9 MARCH 2016
FILE NO/S: GAA 5108 of 2015
MATTER :BG
Represented Person
Catchwords:
Guardianship and administration - Best interests - Capacity - Need for a guardian - Need for an administrator - Suitability to be appointed guardian and administrator - Limited guardianship order - Plenary administration order
Legislation:
Guardian and Administration Act 1990 (WA), s 3, s 4, s 43, s 44, s 45, s 64, s 68, s 69, s 97(1)(b)(iii), Pt 9(C)
Result:
The Public Advocate is appointed limited guardian
The Public Trustee is appointed plenary administrator
Summary of Tribunal's decision:
BG was a 23yearold man with a diagnosis of intellectual disability and a mental illness.
BG lived in public housing rental accommodation and was in receipt of funding from the Disability Services Commission. The funding was managed through a communitybased agency.
The primary family support for BG was his mother.
Applications for guardianship and administration orders for BG were made by his mental health team and supported by the Disability Services Commission.
The Local Area Coordinator of the Disability Services Commission and the communitybased agency were concerned that BG was associating with people who were taking advantage of him and putting his public housing tenancy at risk.
The Tribunal found that there was somewhat of an impasse between BG's mother and the communitybased agency about what was the most appropriate model of support, and at best, the current system was one of 'muddling through', not helped by the fact that BG's mother had been very unwell and had a condition that unfortunately would continue to impact on her ability to assist BG.
The Tribunal found that something needed to happen to progress BG's connection with the community in more positive ways than his association with people who caused him harm, as he himself had made clear. This might require, for example, a thorough exploration of alternate accommodation for BG, given that his current accommodation appeared to be hampering that progress.
Despite the commitment of BG's mother, the Tribunal was not satisfied that the current arrangements for decisionmaking were working in the best interests of BG.
The Public Advocate was appointed limited guardian of BG and the Public Trustee was appointed plenary administrator of his estate.
Category: B
Representation:
Counsel:
Represented Person : NIL
Solicitors:
Represented Person : N/A
Case(s) referred to in decision(s):
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
The reasons below were given orally on 9 March 2016. The matter had been heard on 23 February 2016.
Except for minor amendments mainly for the purposes of style and grammar, including the anonymising of names as required by the Guardianship and Administration Act 1990 (WA), the decision and reasons are those that were handed down on 9 March 2016.
Background
BG is a 23yearold man with a diagnosis of intellectual disability and a mental illness.
BG lives in public housing rental accommodation and is in receipt of funding from the Disability Services Commission (DSC).
The DSC funding is managed through a communitybased agency (CLA).
BG also receives support through a DSC Local Area Coordinator (LAC).
The primary family support for BG is his mother, SG.
On 29 October 2015, BG had been admitted to a mental health unit suffering from an acute psychosis. He was discharged on a community treatment order (CTO) on 13 November 2015.
In November 2015, the local mental health team (applicant) made applications for guardianship and administration orders for BG under the Guardianship and Administration Act 1990 (WA) (GA Act).
The matter was part heard on 6 January 2016 and adjourned. The applications were referred to the Public Advocate pursuant to s 97(1)(b)(iii) of the GA Act for investigation and report.
The final hearing took place on 23 February 2016. Present were BG, SG, her partner, RS, the applicant, the LAC, representatives from the CLA and representatives from the Public Advocate (Public Advocate).
The decision was reserved.
Subsequent to the hearing on 23 February 2016, the Public Advocate filed with the Tribunal a submission dated 2 March 2016 from a mental health advocate who had met with BG in the company of a representative from CLA. The submission purports to reflect the concerns held by BG in respect of his current accommodation and some of the people who visit him.
I have decided to accept the submission even though the other parties to the proceeding (except for the Public Advocate) have not had the opportunity to have access to it. I have done so because it appears to be an expression of BG's views on his current circumstances and is not inconsistent with the evidence presented to the Tribunal. Although BG was present at both hearings, he did not contribute much by way of oral evidence.
Relevant legislation
The relevant legislation is the GA Act.
The primary concern of the Tribunal is the best interests of BG: s 4(2) of the GA Act.
BG is presumed to be capable of looking after his own health and safety; making reasonable judgments in respect of matters relating to his person; managing his own affairs; and making reasonable judgments in respect of matters relating to his estate, until the contrary is proved to the satisfaction of the Tribunal: s 4(3) of the GA Act.
Under s 43 of the GA Act, the Tribunal cannot consider appointing a guardian for BG unless it can be satisfied on the evidence that he is incapable of looking after his own health and safety; is unable to make reasonable judgments about matters relating to his person; or is in need of oversight care or control in the interests of his own health and safety or for the protection of others.
Under s 64 of the GA Act, the Tribunal cannot consider appointing an administrator of the estate of BG unless it can be satisfied on the evidence that by reason of a mental disability, BG is unable to make reasonable judgments in respect of matters relating to all or any part of his estate.
'Mental disability' is defined in s 3 of the GA Act to include an intellectual disability, a psychiatric condition, an acquired brain injury and dementia.
If a finding of incapacity is made in respect to BG, the Tribunal must further determine whether BG is in need of guardianship and administration orders. If the needs of BG can be met in a manner less restrictive of his freedom of decision and action then orders should not be made: s 4(4), s 43(1)(c) and s 64(1)(b) of the GA Act.
If the Tribunal decides that BG is in need of guardianship and administration orders, it must then decide what authority should be given to the guardian and administrator, who the guardian and administrator should be and what review date should be set, given the requirement that orders must be reviewed at least once every five years: s 43(1)(d), s 43(1)(e), s 44, s 45, s 64(1)(c), s 64(1)(d), s 68, s 69 of the GA Act.
As to the authority given to a guardian, the GA Act states that if a limited order is sufficient to meet the needs of BG then a plenary order should not be made. If limited guardianship and administration orders are made, the orders must place the least restriction necessary on BG: s 4(5) and s 4(6) of the GA Act.
In considering the applications, the Tribunal shall, as far as possible, seek to ascertain the views and wishes of BG as expressed, in whatever manner, at the time, or as gathered from BG's previous actions: s 4(6) of the GA Act.
The involvement of the DSC with BG
The history of the involvement of the DSC with BG is contained in a letter from the Director General to the Public Advocate dated 24 December 2015, which is before the Tribunal. Relevantly, the Director General states:
•BG's eligibility for DSC services was approved in April 1998 subsequent to a referral by a paediatrician in 1996 and an assessment by a clinical psychologist in February 1998 confirming a diagnosis of intellectual disability.
•An assessment in December 2004 by a paediatrician, psychologist and speech pathologist found that BG did not meet sufficient criteria to gain a diagnosis of Autism Spectrum Disorder but that he was found to have a severe intellectual disability, expressive and receptive language impairment and a high number of obsessive tendencies.
•The DSC commenced providing LAC services to BG in late 2003 with the majority of contact occurring after 2009.
•In about 2009/2010, BG was charged with a serious criminal offence but that charge was ultimately withdrawn in early 2011.
•In the conduct of the criminal proceeding, a psychiatrist had assessed BG in August 2010 as having a moderate intellectual disability. He was assessed as being so compromised by his language, cognitive attention and hyperactivity disabilities that he was considered unfit to plead in the criminal matter.
•In December 2012, BG was admitted to hospital after having caused damage to the interior of his mother's home following her refusal to allow him to purchase marijuana.
•In February or March 2015, SG disclosed to the LAC that she had been diagnosed with a degenerative health condition.
•In October 2015, the LAC advised that BG's behaviour and inadequate decision-making capability were placing his tenancy at risk. BG was exhibiting erratic behaviour and was admitted to a mental health unit.
•Letters from a consultant psychiatrist, Dr C, from October and November 2015 stated that BG had been admitted to a mental health unit because of a psychotic delirium most likely secondary to the use of synthetic cannabinoids. It was reported that BG had used multiple illicit substances which adversely affected his mental state. He was being treated as an involuntary patient under the relevant mental health legislation.
•BG currently has a funding allocation of $170,051 per annum for intensive 'Family Support' and $19,964 for 'Post School Options' services. Both of the services are delivered by CLA but it is the view of the LAC that BG's current funded supports are not being fully utilised.
The admission of BG to the mental health unit in October 2015
The progress of the admission is contained in the 'Mental Health Unit Clinical Letter' dated 23 October 2015. It relevantly states:
•BG was brought to the emergency department by a housemate for altered behaviour and likely acute psychosis. BG was dishevelled, dirty and had not been attending to his personal needs. He was thought disordered, tangential and not coherent.
•BG's past medical history was said to include Autism Spectrum Disorder, intellectual disability and polysubstance abuse.
•BG required intensive treatment due to a delirium, uncontrollable behaviour and significant risk of selfharm.
•With treatment BG gradually improved and was able to be discharged to his accommodation with services reinstated.
The evidence of the mental health team
In a report to the Tribunal dated 20 November 2015, Dr C confirms that BG has an intellectual disability and refers to the psychosis with which BG presented in October 2015. He assesses BG as having difficulty weighing up decisions and that he has poor impulse control.
In his oral evidence, Dr C says that he is concerned that the psychosis suffered by BG may be the forerunner to an emerging mental illness. He assesses BG as not being able to consent to his psychiatric treatment and states that BG is currently being treated as an involuntary patient under a CTO.
BG's mental health case manager states that the CTO is due to expire on 12 May 2016. The CTO requires BG to attend outpatient appointments and to be given his antipsychotic medication by way of injection. BG attends his appointments accompanied by a support worker from CLA.
The evidence and submissions of the LAC
The LAC supports the applications of the mental health team that BG is in need of the appointment of a guardian and administrator. He does not, however, support the appointment of SG, the mother of BG, or her partner, RS.
The LAC states that BG requires significant support in his decisionmaking, including daytoday decisions that enable him to live in the community. He says that BG's needs have increased since the episode of psychosis in October 2015.
The LAC says that BG has required intense advocacy and support to maintain his accommodation. He states that BG tends to associate with people who take advantage of him both financially and by using his accommodation for short stays. The LAC states he has had discussions with SG, CLA and the accommodation provider, Homeswest, about the people who stay with BG.
The LAC says that people steal BG's possessions and that he currently has a debt with Homeswest.
The LAC does not agree with SG that the person currently caring for BG (and who lives with him) is effectively managing unwanted visitors at BG's accommodation. He agrees that BG needs 24hour supervision and that the funding from the DSC would allow for overnight carer support and some additional support during the day to encourage BG to participate in work experience or voluntary work.
The LAC states that he has concerns about the current model of support regulating with whom BG associates, which is largely managed by SG and the CLA. He says that it is not working optimally in an environment where support funds from the DSC are being underutilised. He is of the view that there has been inconsistent service provision for BG, which is of concern given that BG's circumstances can deteriorate quickly.
The evidence and submissions of SG
SG is of the view that although BG needs 24hour supervision because he cannot live independently, he is otherwise largely able to make his own decisions.
SG states that BG's accommodation is not at risk because the person who was creating problems has left. She states that the person currently living with BG is doing a great job in keeping unwanted people away. The carer is currently applying for a carer's pension which has yet to be approved by Centrelink.
SG believes that there is sufficient DSC funding for 24hour care and blames the CLA for not providing a sufficient pool of carers. She says she has recently introduced a female carer for BG whom she anticipates will be employed by the CLA.
SG states that she is not aware that the current visitors to BG's accommodation are intimidating and therefore should not impact on the CLA accessing BG to provide support. She says that she would find out if there were unwanted visitors and with the help of RS, would get rid of them.
SG states that there are no barriers to her working with the CLA.
SG says that the problems raised by the LAC are past issues and are no longer relevant. She states that BG is beginning to realise that people take advantage of him and she is confident he can take appropriate action.
SG states that BG is in receipt of a disability support pension. She receives the pension as trustee for BG into a bank account to which he does not have access. BG has his own bank account into which she places funds that he can access for his daily use.
SG acknowledges that BG has a debt with Homeswest. The reason for the debt is that the new carer is waiting for approval of the carers pension and therefore cannot yet pay for his share of the rent. SG says this will be resolved when the carers pension is received.
SG states that she suffers from a life threatening medical condition and for a period in late 2015 was not well enough to assist BG, particularly during his psychosis. However, she says she has assisted BG his entire life and, despite her illness, she believes she can continue to do so.
SG proposes herself as guardian and administrator for BG, or alternatively, to be jointly appointed with RS. She says that RS has experience with disability, having cared for his late disabled daughter. He owns his business and is flexible as to his available time to assist her and BG.
The evidence and submissions of the CLA
The CLA states that the level of support provided to BG is largely based on what he wants, the formulation of which may include discussions with BG's family. The CLA is not in a position to decide or enforce the level of services provided and, as a consequence, the DSC funds are not fully used.
The CLA states that BG currently receives support during the day to promote community integration. For example, BG visits a farm a number of times a week with a support worker employed by the CLA.
The CLA confirms that SG has introduced a female support worker whom it is likely it will employ once she obtains the required police clearances.
The CLA has ongoing concerns about the safety of its workers because of the people who are present at BG's accommodation from time to time. It is the view of the CLA that these people have a tendency to be an intimidatory presence and can inhibit service provision. However, the CLA believes it can work with SG on these issues.
The Public Advocate
The Public Advocate interviewed BG in person. He presented as dishevelled. He said that he wants SG to be his guardian but did not appear to understand what it is a guardian does. BG was able to inform the Public Advocate that he has an injection (mental health) but he could not say why. He did not remember when the injections started, who agrees to having it done and what would happen if the CLA could not take him to the outpatient appointment.
In discussions with representatives of the CLA, the Public Advocate states there is a wish to extend the services to BG, but when attempts have been made, SG has a tendency to intervene by making her own arrangements.
In the report of the Public Advocate, a concern is raised about the appointment of RS as guardian for BG, referring to confidential information received from the CLA questioning RS's suitability. This matter was not pressed by the Public Advocate or the CLA at the hearing.
The Public Advocate considers BG to be a very vulnerable young man.
The submission of the Public Advocate is that a guardian and administrator should be appointed for BG.
SG should not be appointed due to her illhealth.
RS should not be appointed due to BG's high care needs and the complex funding arrangements currently in place.
The Public Trustee should be appointed plenary administrator of the estate of BG and the Public Advocate appointed limited guardian with decisionmaking authority in the areas of accommodation, treatment, services, and with whom BG has contact.
The views and wishes of BG
At the hearing and when interviewed by the Public Advocate, BG expressed a wish that his mother (SG) be appointed his guardian.
In the material filed with the Tribunal subsequent to the hearing, BG voiced his frustration to the mental health advocate and the CLA about people who visit him and take his possessions. He mentioned that computer games and a television had been stolen, and that his accommodation had been damaged, for which he is liable. BG stated that he has asked people to leave but they have refused.
The mental health advocate states that he took BG to inspect a supported residential accommodation.
The decision of the Tribunal
The primary concern of the Tribunal is the best interests of BG. The focus must be on his independent welfare.
I am satisfied that BG is a person for whom guardianship and administration orders can be made.
The evidence shows that BG has a significant intellectual disability. The evidence of Dr C, which I accept, is that BG is impulsive in his decisionmaking and is unable to weigh up the elements of a decision and its consequences.
There is clear evidence that BG is very vulnerable to the influence of others by virtue of his cognitive difficulties.
It is common ground that BG is unable to live safely on his own. He requires 24hour supervision and assistance to undertake basic daily activities in the community, including ensuring he attends his mental health appointments.
I do not accept SG's contention that BG can mostly make his own decisions and is better able now to protect himself from unwanted visitors. The evidence demonstrates that BG has little influence over who visits and stays in his accommodation, and relies on others to monitor his immediate environment.
It is not in dispute that BG cannot manage his disability support pension so that his daily needs are met. SG currently manages the pension for BG, providing him with a regular, small allowance.
BG has the benefit of significant funds from the DSC for support in the community. The funds are not fully utilised and there is a tension that exists between SG and the CLA in how to make the most appropriate use of the funds.
Despite the CLA saying that it can work with SG to overcome issues of difference, I am not satisfied that is the case.
SG has strong views about the way in which BG should be supported and it seems her views tend to prevail in an environment in which she has a more sanguine view about BG's capacity than I think is warranted.
In that regard, I accept that the CLA is somewhat hamstrung in its endeavours to improve BG's life through the support funds available. I am satisfied this situation is not new but has prevailed for some time to the detriment of BG.
I agree with the submission of the LAC that there is somewhat of an impasse between SG and the CLA about what is the most appropriate model of support, and, at best, the current system is one of 'muddling through', not helped by the fact that SG has been very unwell and has a condition that unfortunately will continue to impact on her ability to assist BG.
I am concerned that the Public Advocate feels the need to say that BG is a most vulnerable person in his present environment.
Something needs to happen to progress BG's connection with the community in more positive ways than his association with people who cause him harm, as he himself made clear to the mental health advocate. This may require, for example, a thorough exploration of alternate accommodation, given the evidence that his current accommodation appears to be hampering that progress.
Despite SG's commitment to BG, I am not satisfied, on the evidence, that the current arrangements for decisionmaking are working in the best interests of BG.
The time has come to have another decisionmaker take a fresh look at BG's current circumstances and decide what changes need to be made. This, in my view, cannot be SG because she seems wedded to a particular view of BG that underestimates his vulnerabilities. It cannot also at this time be RS because, in my view, he is too closely aligned with SG.
I have therefore decided that it is in BG's best interests to appoint the Public Advocate as his guardian to make decisions about his accommodation, the support services to which he should have access, and to decide with whom BG is to associate with the attendant next friend legal authority to support that latter function.
This will enable a new approach to be taken with the CLA and the LAC to the way BG lives in the community in these critical, early adult years. As I have already indicated, this may include considering more formal, supported accommodation.
I have decided not to include the treatment function in the guardianship order. In my view, BG's mental health treatment can be dealt with under the relevant mental health legislation as is currently the case, particularly as Dr C has assessed BG as not having the capacity to consent to his own psychiatric treatment. I am also satisfied that under the 'person's responsible' provisions of the GA Act (Pt 9C), SG remains currently able to deal with general medical issues that arise from time to time.
I have decided to appoint the Public Trustee as BG's administrator. I am doing so principally because I am not satisfied that the appointment of the Public Advocate as guardian is compatible with SG retaining control of BG's finances at this time. It is very likely the case that the Public Advocate will consider changing BG's accommodation and I need to be certain that if this happens, the administrator will not impede that decision.
I am also conscious of SG's health issues and her understandable difficulties in maintaining a consistent presence at the level of BG's daily financial needs and basic living circumstances. She remains of course a very important presence in BG's life, and the Public Advocate as guardian will no doubt consult her about BG's ongoing needs.
I will make the orders reviewable in two years as a reasonable time to assess whether the appointments I have made have had a positive influence on BG and whether the restrictions on his life represented by the orders should continue.
Orders
On an application for the appointment of a guardian for the represented person, heard before Senior Member J Mansveld on 23 February 2016
The Tribunal declares that [BG]:
(a)is incapable of looking after his own health and safety;
(b)is unable to make reasonable judgments in respect of matters relating to his person;
(c)is in need of oversight, care or control in the interests of his own health and safety or for the protection of others; and
(d)is in need of a guardian,
and the Tribunal orders that:
1.The Public Advocate of Level 2, International House, 26 St Georges Terrace, Perth, Western Australia be appointed limited guardian of [BG] with the following functions:
(a)To decide where [BG] is to live, whether permanently or temporarily;
(b)To decide with whom [BG] is to live;
(c)To determine the services to which [BG] should have access;
(d)To decide with whom [BG] is to associate; and
(e)As the next friend of [BG], commence, conduct or settle any legal proceedings on behalf of [BG], except proceedings relating to the estate of [BG].
2.The Tribunal approves delegation by the Public Advocate of her functions as guardian of [BG] to an officer or employee employed in the Office of the Public Advocate.
3.This order is to be reviewed by 8 March 2018.
On an application for the appointment of an administrator for the represented person, [BG] heard before Senior Member J Mansveld on 23 February 2016
The Tribunal declares that [BG]:
(a)is unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all of his estate; and
(b)is in need of an administrator of his estate,
and the Tribunal orders that:
1.The Public Trustee of 553 Hay Street, Perth, Western Australia is appointed plenary administrator of the estate of [BG] with all the powers and duties conferred by the Act.
2.This order is to be reviewed by 9 March 2018.
I certify that this and the preceding [82] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR J MANSVELD, SENIOR MEMBER
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