BZ
[2019] WASAT 14
•27 MARCH 2019
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: BZ [2019] WASAT 14
MEMBER: MS F CHILD, MEMBER
HEARD: 12 DECEMBER 2018
DELIVERED : 27 MARCH 2019
FILE NO/S: GAA 2579 of 2018
BZ
Represented Person
Catchwords:
Guardianship and Administration - Application for review of guardianship and administration orders Represented person with diagnosis of organic personality disorder causing impulsive spending, self-harming behaviour and recurrent situational crises - Need for administrator to manage impulsive spending to ensure access to necessities Need for a guardian to advocate in respect of migration matters as represented person on Temporary Protection Visa and at risk of cancellation of visa - Wishes of the represented person that orders be revoked - Limited guardianship order made Administration order confirmed
Legislation:
Guardianship and Administration Act 1990 (WA), s 3, s 4, s 43(1), s 64(1), s 86, s 110ZD
Result:
Public Trustee confirmed as administrator
Public Advocate appointed limited guardian
Category: B
Representation:
Counsel:
| Represented Person | : | Ms S Oliver |
Solicitors:
| Represented Person | : | Mental Health Law Centre |
Case(s) referred to in decision(s):
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
These are the reasons of the Tribunal for the decisions made on 13 December 2018 in respect of the review of guardianship and administration orders made for BZ (the represented person).
The represented person sought review of the orders pursuant to s 86 of the Guardianship and Administration Act 1990 (WA) (the GA Act) of a guardianship order dated 11 March 2014 by which the Public Advocate is appointed limited guardian and an administration order dated 13 February 2018 by which the Public Trustee is appointed plenary administrator.
Background
The represented person is a man of 24 years. He is an asylum seeker and suffered serious injuries in a boat sinking in 2012 in which a number of people died. He was being treated for those injuries when he required aortic valve replacement surgery following which he suffered a rupture of a brain aneurysm and sustained a brain injury.
The represented person is prescribed Warfarin for his heart condition but is reportedly erratic with compliance. He is also reported to have self-harmed or threatened self-harm and has had a number of admissions to mental health units.
The represented person reportedly has no family in Australia and is said to be socially isolated and lacking any consistent support. He is reported to be homeless or in insecure housing and has had contact with the criminal justice system for a range of offences including assaults. He has had a period of imprisonment.
Evidence and material before the Tribunal
The following reports are before the Tribunal:
•Dr A, general practitioner dated 7 October 2018 with hospital discharge letters attached;
•Dr M, consultant psychiatrist dated 11 September 2018 with discharged summaries attached;
•Ms KC, clinical nurse dated 11 September 2018;
•Public Trustee dated 25 September 2018; and
•Public Advocate dated 21 September 2018.
In addition to the reports filed for this review, the Tribunal has had regard to a neuropsychological assessment of the represented person by Dr MC, neuropsychologist dated 17 October 2017.
The Tribunal heard from the represented person, his treating medical practitioners, representatives of the Public Advocate (Public Advocate) and submissions from a solicitor from the Mental Health Law Centre for the represented person.
Principles to be observed
In all proceedings brought under the GA Act the Tribunal must observe the principles set out in s 4 of the GA Act:
(1)In dealing with proceedings commenced under this Act the State Administrative Tribunal shall observe the principles set out in this section.
(2)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.
(3)Every person shall be presumed to be capable of —
(a)looking after his own health and safety;
(b)making reasonable judgments in respect of matters relating to his person;
(c)managing his own affairs; and
(d)making reasonable judgments in respect of matters relating to his estate,
until the contrary is proved to the satisfaction of the State Administrative Tribunal.
(4)A guardianship or administration order shall not be made if the needs of the person in respect of whom an application for such an order is made could, in the opinion of the State Administrative Tribunal, be met by other means less restrictive of the person's freedom of decision and action.
(5)A plenary guardian shall not be appointed under section 43(1) or (2a) if the appointment of a limited guardian under that section would be sufficient, in the opinion of the State Administrative Tribunal, to meet the needs of the person in respect of whom the application is made.
(6)An order appointing a limited guardian or an administrator for a person shall be in terms that, in the opinion of the State Administrative Tribunal, impose the least restrictions possible in the circumstances on the person's freedom of decision and action.
(7)In considering any matter relating to a represented person or a person in respect of whom an application is made the State Administrative Tribunal shall, as far as possible, seek to ascertain the views and wishes of the person concerned as expressed, in whatever manner, at the time, or as gathered from the person's previous actions.
To appoint an administrator of an estate, or confirm such an order on review, the Tribunal must be satisfied that the person for whom the order is made, is unable, by reason of a mental disability to make reasonable judgments in respect of matters relating to all or any part of his estate and is in need of an administrator of his estate (s 64(1) of the GA Act).
To appoint a guardian for a person or confirm such an order on review the Tribunal must be satisfied that the person is incapable of looking after his own health and safety, unable to make reasonable judgments in respect of matters relating to his person or is in need of oversight care or control in the interest of his own health and safety or for the protection of others and is in need of a guardian (s 43(1) of the GA Act).
A mental disability is defined in s 3 of the GA Act to include an acquired brain injury and a psychiatric condition.
Is the represented person a person for whom a guardian and administrator may be appointed
In his report, Dr M reports the represented person's diagnosis is an 'organic personality disorder after rupture of a mycotic aneurysm and subarachnoid haemorrhage in 2012 …'.
Dr M describes the represented person's condition as a static one and is unsure whether the represented person is capable in the sphere of simple financial matters and legal matters but in his opinion the represented person is incapable of making decisions in respect of complex financial matters.
Dr M's opinion is that the represented person is incapable of making decisions about medical treatment, accommodation and services because the doctor reports the represented person is unable to remember the details of treatment and could not give an account or even list his medications and could not demonstrate sound reasoning around accommodation and services issues.
Dr A, says that the represented person has a diagnosis of organic personality disorder ... uninhibited behaviour [and] impulsivity. Dr A's opinion is that the represented person is capable of making decisions about simple financial matters but incapable of complex decisions; referring to impulsivity and reduced responsibility. Dr A is unsure about the represented person's capacity in respect of personal matters and notes 'poor compliance with instructions, unpredictability'.
Hospital discharge letters before the Tribunal confirm the complex nature of the represented person's health condition, his history of challenging behaviours including offending and the seriousness and possible life-threatening risk of his non-compliance with the warfarin regime.
In his oral evidence, Dr A says that he is looking after the represented person's warfarin and medication and that the represented person is inconsistent with taking warfarin even though he is aware of the risk to his health of possible (blood) clots.
In his oral evidence Dr M confirms the diagnosis given in his report and says the key trait of the condition in the represented person presents as 'impulsiveness' (ts 4, 12 December 2018).
Dr M reports that the represented person spends money impulsively and gives the example that the represented person has been hospitalised after a suicide attempt in the context of financial stresses following the represented person borrowing money from different sources and impulsively spending over a thousand dollars on horseracing gambling. The represented person reportedly incurred a debt of about $7,000 from various sources over a few weeks. Dr M says that the represented person's decision making on bigger matters '… does affect his mental state, to the point of suicide' (ts 4, 12 December 2018).
Dr M says that the represented person is quite resourceful but has difficulty in finding and securing accommodation partly driven by finances and partly by his behaviour including 'repeated crises'. Dr M agrees with Dr A regarding the represented persons non-compliance with his medication.
KM refers to assessments of the represented person which confirm 'significant impairment of cognitive capacity'. She reports the represented person is able to make simple financial decisions but lacks capacity to make appropriate complex decisions. She indicates this is demonstrated as the represented person 'purchases a costly item a car, laptop [and then] sells them in a short time'.
She reports the represented person purchases an item on impulse and will gamble money at the casino leaving him without money to live on. She says he is regularly taken advantage of by others and purchases items that do not work. She says his 'behaviour can be problematic at times' and he has poor insight into his mental health and remains at chronic risk of misadventure.
In the report of Dr MC, dated 17 October 2017 it is reported that the represented person experienced
Significant weakness in speed of processing and pockets of marked executive dysfunction.
On this background fluctuating overlay of cognitive impairment secondary to the impact of psychosocial stresses on his mental state. When his stresses exacerbated he decompensates and becomes highly preoccupied with the focus of his concern with very limited capacity to allocate cognitive resources outside of this.
At these times he appears increasingly prone to rigid thinking and impulsive, unpredictable behaviour with impaired insight into the probable impact of these.
Some of his cognitive difficulties likely reflect low education and English as a second language these factors cannot account for the apparent degree of executive dysfunction. Cognitive impairments are considered due to a combination of developmental risk factors and the brain injury he sustained in Australia.
The Tribunal is satisfied on the evidence as a whole that the presumption of capacity is rebutted and that represented person has an acquired brain injury and resultant psychiatric condition of organic personality disorder which leads to impulsivity in his decision-making and he is by reason of this disability incapable of making reasonable judgments about his estate.
Dr A is unsure of the represented person's capacity to make judgments about medical treatment but notes he is intermittently non-compliant with that treatment. Dr M considers the represented person incapable of making treatment decisions.
The Tribunal is satisfied on the evidence of the health professionals that the represented person is unable to manage the health risks associated with his cardiac condition and comply with prescribed medication. It prefers the evidence of Dr M to the extent that there is any inconsistency that the represented person has limited insight into his cardiac condition and is regularly non-compliant with the warfarin regime.
The Tribunal also accepts the evidence of Dr M and the clinical nurse that the represented person lacks insight into his mental health condition and has historically self-harmed and been admitted to hospital following suicide attempts. The represented person has a reported history of assaultive and threatening behaviour to others.
The Tribunal finds that the represented person is incapable of looking after his own health and safety, is unable to make reasonable judgments about his person and is in need of oversight and care in the interests of his own health and safety and potentially for the protection of others.
The represented person is a person for whom both administration and guardianship orders may be made.
Is the represented person in need of administration and guardianship orders
The submission made on behalf of the represented person is that the represented person's estate is a simple one; limited as it is to a Centrelink income of special benefit. It is asserted that he is able to manage his personal expenditure. It is said that he has not engaged in selling motor vehicles and has not been gambling for some months. This last submission was challenged by the evidence of Dr M.
It is submitted for the represented person that as his estate is small and that the opinion of Dr M expressed in his report is that the represented person has capacity to make simple decisions that the evidence does not support the making of an administration order. It is noted that Dr M's opinion is given in the report dated 11 September 2018 and predates the hospital admission in October 2018 and specifically refers to the represented person budgeting and not at that time getting into debt. Dr M's opinion expressed in his report was qualified in his later oral evidence.
It is said on behalf of the represented person that the reason for his suicide attempt and admission to hospital in October 2018 was as a result of the guardianship and administration orders. The represented person asserts that the crisis which resulted in his hospitalisation was a result of the administration orders as he was unable to pay money he owed (ts 7, 12 December 2018). It is said on his behalf that he made a further suicide attempt by jumping from a building in the week prior to the hearing and that this attempt was directly linked to the current guardianship and administration orders (ts 8, 12 December 2018).
The represented person says he is non-compliant with his prescribed medication because he is stressed by the Public Advocate's guardian and it is understood by the processes before the Tribunal (ts 9, 12 December 2018).
It is accepted that the represented person's income is very restricted and although his estate is small there have been complexities in the past with the represented person buying and selling motor vehicles without the necessary motor vehicle dealer's licence and with resultant convictions.
More recently the Public Trustee reports that there have been gaps in the represented person's income because of his failure to meet Centrelink reporting obligations. The represented person agrees that this had occurred but blamed the Public Trustee for this (ts 9, 12 December 2018).
The crises referred to in Dr M's evidence occurred during a period when the represented person was on this restricted income. The Tribunal accepts the evidence of Dr M of the link between the impulsivity of the represented person regarding his spending, incurring debt and the recurrent financial crises experienced by him and his suicide attempts.
The Public Advocate supports the continuation of the administration order because of the history of debts incurred by the represented person.
In respect of the review of the guardianship order the Public Advocate’s guardian argues that decisions have not been made by the guardian for the represented person since 2015 in relation to the functions in the existing order for his accommodation, health care treatment or for services. It is said that the represented person is resourceful in obtaining accommodation services and employment. It is argued that the guardian is unable to enforce his compliance with the medical treatment.
The Public Advocate argues that the guardianship order is required to deal with immigration matters with the Department of Home Affairs (the Department). The guardian reports that in the months prior to the hearing the Department made a submission that the represented person's temporary protection visa be cancelled and he be deported from Australia on character grounds because of his criminal convictions. The Public Advocate reports that the guardian advocated for the represented person to the Department and the decision to recommend cancellation of the visa did not proceed.
The Public Advocate also reports that the represented person's visa is due for review in April 2019 and the Public Advocate is already in contact with the Department regarding the review. It is acknowledged that this review is causing a great deal of stress for the represented person.
The represented person proposes to travel overseas to find a wife and the Public Advocate expresses concern whether this is permitted under the conditions of his existing visa. The Public Advocate submits that if this matter is not handled appropriately that the represented person may not be able to return to Australia. The guardian argues that travel authorities should be included in the guardianship orders made.
The Public Advocate's submission is that the represented person struggles with the complexities of dealing with the Department and that the orders should provide for a guardian to have that authority to act on his behalf. This submission is consistent with the medical and other professional evidence before the Tribunal of the represented person's limited understanding of laws and legal systems and his interactions with many forms of authority which are characterised by impulsivity and at times inappropriate behaviour.
Wishes of the represented person
The represented person expresses his strong opposition to the orders being made both through his representative and directly.
Over the course of the review proceedings the position of the represented person regarding the guardianship order changed: initially he was agreeable to the confirmation of the Public Advocate as guardian to deal with his immigration status but in the hearing appeared to change his position and asked that the guardianship order be revoked entirely on the basis that the he was able to obtain his own legal advice and assistance.
Following an adjournment to confer with his representative, the represented person agreed that a guardian might be appointed for the immigration matters only and he remained strongly opposed to the administration orders.
It is submitted for the represented person that given the overriding obligation on the Tribunal to act in his best interests when reviewing the orders, the Tribunal must consider the represented person assertions that his suicide attempts are directly related to the administration orders.
The Tribunal does not accept the submission that the recent admission of the represented person to hospital was as a result of the administration order. That order has been in place since 2013 and the circumstances precipitating the admission as described by Dr M are that the represented person incurred $7,000 of debt in a few weeks by borrowing money from several persons and could not repay it. The represented person did not and does not have the funds to repay such a debt.
The Tribunal does accept that the represented person strongly objects to the orders which impose controls on his spending and on his general autonomy and this is a constant source of distress for him.
In an effort to enable the represented person to have greater control over his finances a direction was given to the administrator in the orders dated 13 February 2018 for a trial whereby the represented person would manage his own income. The Public Trustee reports that the trial was abandoned as the represented person was reported to be spending all of his allowance at the casino and had no funds for his living expenses.
Although the wishes of the represented person are very clearly that the administration order should be revoked, the professional evidence does not support this. Dr M's evidence regarding the recurrent crises experienced by the represented person, and the deterioration in the represented person's mental health and subsequent hospitalisation due to his impulsivity and financial stressors supports the need for the oversight and monitoring of the represented person's income and expenditure to meet his essential financial needs, including medication. This evidence and that of the other health professionals, the submissions from the Public Advocate and the Public Trustee support the confirmation of the administration order on the same terms in the best interests of the represented person.
In respect of the guardianship order, although the weight of the evidence is that the represented person is a person for whom orders may be made and he is in need of substitute decision-making in his best interests, the represented person is dismissive and critical of the role of a guardian and strenuously objects to those orders being made. His views regarding the guardian's role as a necessary advocate and decisionmaker in respect of his immigration status changed over the course of the proceedings.
The represented person is non-compliant or inconsistently compliant with the warfarin regime with such non-compliance referred to in the material before the Tribunal as life-threatening. He says that he does not take this prescribed medication because he is stressed by the guardian. That he should make such a statement underlines for the Tribunal the impaired nature of his decision-making, however it does illustrate his opposition to the orders.
The represented person lacks anyone in his life who can play a role as a substitute consent giver on an informal basis pursuant to s 110ZD of the GA Act. He has had a number of presentations to hospitals and has lifelong health care needs. It is apparent that the represented person has had significant medical interventions and has been treated in the past (prior to the orders being made) on an urgent basis, and potentially this could occur again should his health deteriorate and he is again hospitalised. Alternatively a further application for review could be made to include a treatment function in the orders. There may also be the need for a guardian with authority to consider the release of medical information if claims for compensation in respect of personal injuries claims foreshadowed by the represented person are made.
In light of the wishes of the represented person that the guardianship order be revoked (other than for the visa and immigration matters) the least restrictive order which can be made to protect the represented person's interests is to appoint a guardian to deal with those matters and to revoke the other functions.
The travel function sought by the Public Advocate is, it is accepted, a necessary part of the protection of the represented person's interests in relation to the immigration matters because of the risk of his own potentially impulsive and uninformed decisions regarding travelling overseas while subject to the Temporary Protection Visa.
There are no other proposals for appointment and therefore no alternative to the appointment of the Public Advocate as guardian and the Public Trustee as administrator.
The orders should be reviewed in 3 years.
Orders
For these reasons the Tribunal makes the following orders:
1.The Public Trustee of 553 Hay Street, Perth, Western Australia is appointed plenary administrator of the estate of the represented person with all the powers and duties conferred by the Act.
2.The guardianship order dated 11 March 2014 is amended so that it now reads:
2.The Public Advocate of David Malcolm Justice Centre, Level 23, 28 Barrack Street, Perth, Western Australia be appointed limited guardian of the represented person with the following functions:
(a)In relation to his status under the Migration Act 1958 and any action, proceedings or pending proceedings in respect of the represented person's Temporary Protection Visa;
(i)to seek legal advice on behalf of the represented person;
(ii)to bring and defend any action, suit or other legal proceedings in the name of the represented person; and
(iii)to settle any action in the name of represented person on such terms as the guardian considers to be in the represented person's best interests.
(b)To decide whether or not the represented person is to travel outside Australia;
(c)To decide the terms and conditions upon which the represented person is permitted to travel;
(d)To take possession of all passports issued to the represented person;
(e)To notify the Australian Federal Police about the existence, nature and effect of this order; and
(f)To notify the Department of Foreign Affairs and Trade about the existence, nature and effect of this order.
3.The Tribunal approves delegation by the Public Advocate of her functions as guardian of the represented person to an officer or employee employed in the Office of the Public Advocate.
4.The administration and guardianship orders are to be reviewed by 13 December 2021.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS F CHILD, MEMBER
27 MARCH 2019
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