C
[2019] WASAT 98
•28 OCTOBER 2019
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: C [2019] WASAT 98
MEMBER: MS H LESLIE, MEMBER
HEARD: 24 AUGUST 2018
DELIVERED : 28 OCTOBER 2019
FILE NO/S: GAA 2622 of 2018
C
Represented Person
Catchwords:
Guardianship - Criteria for guardianship - Risk to health and safety - Need for oversight care and control - Guardianship for capable persons
Legislation:
Family Court Act 1997 (WA), s 45
Guardianship and Administration Act 1990 (WA), s 4, s 40(1), s 43(1), s 43(1)(c)
Result:
Application successful in part
Category: B
Representation:
Counsel:
| Represented Person | : | N/A |
Solicitors:
| Represented Person | : | N/A |
Case(s) referred to in decision(s):
Briginshaw v Briginshaw (1938) 60 CLR 336
K [2018] WASAT 27
KRM [2017] WASAT 135
LGW [2004] WAGAB 4
Ms G [2017] WASAT 108
Public Advocate and CEF [2010] WASAT 54
REASONS FOR DECISION OF THE TRIBUNAL:
The application
The application before the Tribunal is an application under s 40(1) of the Guardianship and Administration Act 1990 (WA) (the GA Act) for a guardianship order in respect of the proposed represented person C.
C is a young adult who suffers from severe spastic dyskinetic cerebral palsy as a result of injuries including an acquired brain injury sustained by her at birth. The application is made at the request of C by her speech therapist A.
It is not suggested in the application that C has a mental disability nor that she has lost her capacity to make decisions for herself. Notwithstanding this, C supports the appointment of a guardian for herself.
History of orders/applications
By order of the District Court of Western Australia made 2 June 2005, C was awarded very substantial damages by way of compensation for her birth injuries. By order of the court those damages were paid into a trust to be managed by a nominated trustee (the trustee) for C, the court being satisfied that by reason of her injuries including the acquired brain injury, C was not able to manage her own financial affairs. It is also noted that she was six years old at the time of the order.
On 10 September 2012, when C was 13 years old, being satisfied that C was unable to make reasonable judgments about her financial affairs, the Tribunal made a limited administration order in favour of the trustee to allow it to invest part of the damages in personal superannuation as part of an investment strategy for C's benefit.
The evidence upon which the administration order was made included medical evidence from Dr AG, (who had by then been C's paediatrician for five years) that C could not make reasonable decisions in relation to her financial affairs but noting that:
[C] has severe (GMFCS V) dyskinetic cerebral palsy. She is non-verbal. However, [her] specific cognitive status [is] difficult to determine in view of her motor impairment. [C's] cognition is not deteriorating as cerebral palsy is a non-progressive brain impairment. She is a child and therefore has an ongoing capacity to learn. The severe level of her motor impairment however means that she is unable to fully demonstrate her cognitive capacity with standardised assessment tools.
Dr AG noted that C at the time communicated slowly and with difficulty using an ECHO Augmentative Communication Device operated via a head switch (ACD).
Jurisdiction
Section 43(1) of the GA Act provides that the Tribunal may make a guardianship order in respect of a person who:
(a)has attained the age of 18 years;
(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
(c)is in need of a guardian,
…
Section 4 of the GA Act provides as follows:
(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.
Consideration
Section 43(1)(c) - Need for a guardianship order
Urgent hearing
A's report in support of the application, in response to a specific question as to whether or not C's health and safety is at risk, states:
… Yes I am very concerned for [C's] safety, her physical safety and her mental health. Since she has told her mother (and StepFather now knows) about her wish to move out she has messaged me begging me to move her into the emergency accommodation because [of] how bad things are at home. She communicates with me over Facebook messenger and I have all these messages screenshot. She has asked me to help her move out. I fear for her and my safety if I was to go to her house to move her out. She can't leave without their help. She has told me it is hell at home[.]
The Tribunal also received a report from an occupational therapist MM who was familiar with C's circumstances from prior involvement and employment at an available emergency respite facility. Her report stated, inter alia:
… [C] is seeking urgent assistance to move away from her family, initially to respite. She has emailed myself and [A] requesting assistance with this. She does not feel supported by her parents with this decision. She has asked her mother if she can move to her own house and the family situation is now stressful for [C], this is an urgent situation. She is worried about telling her father and believes the situation will deteriorate rapidly if she does[.]
It is common ground that, after the application was filed but prior to the hearing occurring, C was assisted by her sister N and A to move into emergency accommodation. Police were present at her father's home to assist.
In view of C's fear about ramifications if her family knew of her whereabouts, and yet her distress about being separated from her parents, arrangements were made to bring the hearing of the matter forward.
Subsequent to her move into emergency accommodation but prior to the urgent hearing, as an interim arrangement, C moved back to G's (her mother's) home after agreement was reached that M (her stepfather) would move out of the home which he did.
The hearing
The hearing was attended by A, G and C's parents, a representative from the trustee and a representative from Office of the Public Advocate (Public Advocate).
From the medical reports before the Tribunal, none of which are challenged to any significant extent, C has a diagnosis of severe spastic dyskinetic cerebral palsy causing a number of physical disabilities.
In a neurology report dated 10 November 2016 from Dr SG, those disabilities are described follows:
… She has uncontrollable posturing of her trunk and limbs. She is fully dependent for care. She is mute. She is wheel chair bound and unable to mobilise independently. She has a gastronomy tube for feeding.
She has [medication] injections in her upper limbs … to prevent discomfort and injury resulting from dystonia[.]
The Tribunal had before it a number of reports from Dr AG, who is a consultant in paediatric rehabilitation, who has known C for many years and who provided the report at the time that the administration order was made. Those reports are mostly in the form of letters to other doctors. They record the proposed represented person's cerebral palsy diagnosis. Importantly, in her report to Dr SG of 14 June 2016, Dr AG states that C:
... appears to have relatively spared cognition. [C] 'talks' via a computerised system with which she must laboriously pre-type out messages using a chin activated switch as she is unable to speak. She is however very definite and motivated with expressing her needs and wants.
A, in her report of 14 August 2018, states 'even though she has cerebral palsy, her intellect is intact and as long as she is using her high technology communication device with her head switch … then she can ask and answer all questions and responds in full intelligible sentences. The problem is she can't action anything as her severe physical disability means she is totally dependent on others'; and elsewhere '[C] needs to use her high-technology communication device to talk to people to give them her answer, without this she can't make any decisions. She can make decisions but needs a support person to show her the question'; and elsewhere in relation to the making of personal decisions, 'yes [C] does understand ... [C] would love more supports ... [C] wants to move out to shared accommodation'; and elsewhere 'she communicates with me over Facebook messenger ... she has asked me to help her move out'.
A also referred in an email to the Tribunal to C having herself written a letter to G regarding her decision to leave home. A has also referred in her documents to the fact that C attends TAFE two days a week doing a basic skills course. It is common ground that her mother escorts her to TAFE in place of a support worker, claiming that an independent support worker for C would be too expensive.
The Tribunal also received a report from MW, the senior occupational therapist at the Ability Centre who supports C. The report relevantly states:
... [C] finished high school last year and whilst at school had support from staff and peers. She is now at home and at risk of being socially isolated. Her mother attends TAFE with her further limiting independent social opportunities. [C] is wishing to move away from her existing care arrangements with parents at 2 locations, she has wanted this for some time now but only recently alerted therapists by email. … [C] is capable of making planning decisions as has been demonstrated now by her action taken despite her vulnerable situation. She has made contact by email and messenger (as she is non verbal) with those she feels will support her. She has requested control of her finances so essential equipment and services may be provided. She would likely need assistance for complex financial decisions. … [C] is potentially always at risk as she is always reliant on the technology required … to be set up for her by someone else. Once she is set up then she can independently control her computer and will, given the opportunity, be able to learn any new software. Her mathematical capabilities are unknown. … [C] is able to follow instructions and has excellent learning capacity. She requires support and the correct adaptive equipment and technology to do so however has been denied the opportunity to go ahead with many items over many years. She still has the power chair prescribed when she was a child (no longer suitable) and again her request for a new one is being delayed. She also requested a walker however this was also cancelled by her family. … [C] would accept all essential services however has often not had the opportunity to do so. Clinical assessment and recommendations have been made in the past but outcomes are often significantly delayed or not achieved due to lack of action and financial follow through by her direct carers. … [C] lives between her mum and stepfather's house and her dad's house. This is a shared arrangement. She no longer wishes to live with her parents and wishes to live in other supported accommodation with opportunities to have access to equipment essential to enabling her to participate in society as a young adult and to live as independently as possible. … [C] is very aware of her needs and recently typed up a list of her 2018 goals, this is a comprehensive list. She wishes to participate in the community and have independent mobility again via a power chair, regular maintenance and support using all her technology and relevant therapies to maximise her opportunities for life and work.
In relation to a specific question about whether C's health and safety is currently at risk, M's report stated:
[C] does not have all the required technology, equipment in place to allow her independence in her life as a young adult. Without a functioning power chair and suitable technology and environmental controls, she is unable to remove herself from any home or other stressful situations independently. She is in a vulnerable situation as she is dependent on others to put her communication device in place so she can request help and to transport her anywhere required. She has no independence in this[.]
Other evidence
At the hearing, G confirmed that M had moved from her home and she had made a decision to place C's needs ahead of the relationship so as to allow C to feel comfortable returning to live with her. This was only a very recent decision by G at the time of the hearing. It was clearly a hard one for G. It is to G's credit that this step was taken by her prior to the hearing. It however is of concern this issue was not appropriately addressed until things had reached such a point that C felt it necessary to seek third party help into crisis accommodation, and until after the application to the Tribunal was made. It is entirely unclear to the Tribunal whether G holds out hope for a future with M. The extent to which G feels torn between the two people she cares for places her in an unenviable position. It is another reason why it is, in the Tribunal's view, in the best interests of C to have an independent guardian available to support her in accessing necessary supports and services and in the planning of her future.
The public advocate's position
At the hearing the Public Advocate supported a limited guardianship order to allow the Public Advocate to assist C in having access to appropriate support and in navigating the future community options available to her.
Consideration - the law
As appears from the Tribunal's decisions in Public Advocate and CEF [2010] WASAT 54 (CEF), K [2018] WASAT 27 (which applied CEF) and Ms G [2017] WASAT 108, and notwithstanding the Tribunal's decision in the case of KRM [2017] WASAT 135, with which I respectfully disagree, the legislation allows for the making of a guardianship order for a 'capable' person where the criteria set out in (i) or (iii) of s 43(1)(b) are met, that is to say where a person is able to make reasonable judgments in respect of matters relating to his or her person but is either incapable of looking after his or her own health and safety, or is in need of oversight, care or control in the interests of his or her own health and safety or for the protection of others. It is not a precondition for the making a guardianship order that a person meets (ii) of s 43(1)(b). The presence of the word 'or', being the connective used in disjunction after the text of (ii), makes this clear. Put another way, the cases are authority for the proposition that a person may qualify for a guardianship order where his or her health and safety is at risk notwithstanding that he or she has the capacity to make reasonable judgments him or herself in respect of matters relating to his or her person.
This reflects the protective nature of guardianship as laid down in the 2004 decision of the then Guardianship and Administration Board in LGW [2004] WAGAB 4 (LGW). In LGW, the Board provides a comprehensive analysis of the role and scope of guardianship by reference to s 45 of the Family Court Act 1997 (WA). The Tribunal referred to Dickey, Family Law (3rd ed, 1997) and stated the learned author's view that even under the narrowest view of guardianship, the concept signifies duties to the person ab extra, that is, a warding off, the defence, protection and guarding of the person or his property from danger, harm or loss that may inure from without.
Clearly where a person has the capacity and/or capability referred to in (i) and (ii) of s 43(1)(b), there will need to be sufficient credible evidence demonstrating any absence of capability and any need for oversight, care or control and the basis of the conclusion that that need exists. Particularly where the evidence has failed to establish on the balance of probabilities that a person does not have the capability to look after their own health and safety, there would need to be clear and cogent evidence supporting the need for oversight, care or control in the interests of health and safety to justify a guardianship order.
There is a common maxim in the area of guardianship that people have a right to make bad or unwise decisions. Competent people make them all the time. It will be for the Tribunal in each instance to ensure that any order under (iii) of s 43(1)(b) is appropriate and that the subsection is not simply being used in an attempt to override what are capably made albeit bad or unwise decisions with which others engaged with or close to the proposed represented person simply disagree.
As set out in KRM at [17], the standard of proof required is high, being the so-called 'Briginshaw' standard (refer Briginshaw vBriginshaw (1938) 60 CLR 336), that is, the Tribunal needs to be satisfied of the existence of risk and the need for an order, and/or of the need for oversight, care and control, on the balance of probabilities but having regard to the nature and seriousness of the potentially affected rights.
Consideration - the evidence
It is undisputed that C is highly dependent, very vulnerable and unable to action her choices and decisions independently. She is able to communicate with them only by means of her ACD. She cannot articulate decisions without her ACD. She cannot execute decisions because of her physical disabilities. She is dependent for all her needs physically. Importantly, she needs to have her ACD set up correctly for her by a third party to enable her to communicate. C's communication is a slow and laborious process but her persistence is indicative of her motivation and determination to be heard. It is evident that she is able to communicate with the clinicians who attend her sufficiently for them to be satisfied in making a determination that her intellect and cognition is not impacted to any significant degree, by her cerebral palsy or any other condition.
It is not in contention that, and the Tribunal finds that, given C's high level of dependency on others, her high level of vulnerability, the limits on her communication abilities and her inability to action her choices and decisions to any extent independently without third party assistance, all by reason of the significant physical disabilities that go with her cerebral palsy condition, she is incapable of looking after her own health and safety and is in need of oversight, care and control in the interests of her health and safety.
She thereby meets the criteria for a guardianship order notwithstanding her capacity to make judgments for herself regarding matters relating to her person when appropriately set up to communicate with a working ACD.
Need
What the Tribunal must then determine is whether there is a need for a guardianship order.
The evidence indicates, and it is not contested that, the circumstances in which the application came to be brought are that C's wishes to exercise a choice, as a young adult, to no longer reside in the households of either of her parents and to explore the options that might be available to her to begin to live her life independently of her family and with the assistance of professional service agencies and carers. She wishes to live with choice, respected, in safety and not in fear and circumstances of conflict, and able to take full advantage of the injury compensation awarded to her much earlier in her life to facilitate precisely those things.
She seeks the assistance of a guardian to navigate that complex course and to consider options and make decisions, in consultation with her, about her future accommodation, supports and services, healthcare and treatment and to liaise with the trustee of her compensation trust. That is the need that is said by the applicant to exist.
The reverse side of the coin that is need is the issue of less restrictive alternative. If there is an alternative mechanism available to facilitate decisionmaking in regard to the matters mentioned without the requirement of the making of a guardianship order, then the Tribunal is mandated not to make such an order.
C is 19 years old. Since the separation of her parents she has lived between their homes with them sharing her care. The care model has been the purchasing by the trustee of two separate homes, one occupied by each parent, and the setting up and funding (for the most part) of two complete households between which C moves. The evidence is that, to this point, the decisions in her life that have needed to be made have been made for her by one or both of her parents in conjunction with her.
To this point, that mechanism appears to have largely operated as a less restrictive alternative. A number of issues have been raised as indicators that this mechanism is no longer operating in C's best interests.
Firstly, G has re-partnered and there is conflict between C and her stepfather M. This gives rise to difficulty when she is residing with her mother. This ongoing issue had not been able to be resolved in C's best interests by her parents. This issue escalated in the period immediately prior to the hearing.
Secondly, because of the way that the care arrangements have been set up and the trust funds have been utilised, in the words of the application, '[C] is not receiving important medical care' and 'there is no money for [C] to have regular therapy or to get equipment she needs. She has been waiting more than five years for a power[ed] wheelchair. Her parents say there is no money to buy her these things'.
Thirdly, C wishes to live independently of her parents. In the application, A reports that the parents have opposed this, as it significantly impacts their financial position and that this has caused conflict which has caused distress to C. A expresses concern that the parents are not acting in C's best interests and that C may be at risk of neglect or harm.
The financial difficultly appears to have arisen from the fact that, years ago, at a time when the best medical advice was that C had a limited life expectancy, following the separation of her parents, considerable trust funds were put into setting up two homes, one for each of the parents, to allow for the best of family environments for C with each of her parents during her limited expected lifetime.
Happily, she has outlived the expectations of her doctors and may have many years of life ahead of her, and this has required that the trust managers revisit the question of how the capital funds are employed so as to ensure proper funding of her ongoing adult needs, including considering the available options for independent living, this being a reasonable hope and expectation for an intelligent young woman. The consideration of this matter appears to have been underway in a general way for some time now and recent events have brought into sharp focus the need for the future plans to be progressed in a timely way in C's best interests.
It is not disputed that, in advancing an independent living option for C, there is a conflict of interest that arises out of the need for the sale of one or both of the properties in which C's parents each reside, both of which are owned by the trust. If a new model of care and accommodation is to be pursued, some or all of the existing arrangements will need to be unpicked in order to free up funds to pay for the independent services and accommodation that might be decided upon by C and her guardian.
There is also the conflict of interest that arises out of the fact that funds that currently benefit the parents, in the form of a Centrelink carer's benefit and also domestic and housing expenses paid by the compensation trust, will be likely lost to one or both of them if an accommodation and care regime independent of them is to be set up.
The Tribunal is satisfied that there is a need for a formal guardianship order in favour of an independent guardian.
The proposed represented person's wishes
The Tribunal is required under the GA Act to take account of C's wishes. It is noted that C is content in her current situation and is in agreement with a guardian being appointed to make decisions in these areas on her behalf for the future. She appeared to the Tribunal to have good insight into the fact that her health and capacity will inevitably deteriorate over time and bravely acknowledged the same to the Tribunal. She clearly indicated her wish for improved equipment and supports and for options for independent living in the future.
Although it is acknowledged that C continues to have some contact with her family, no family member or other member of the community has put themselves forward as a potential guardian. The only option available to the Tribunal therefore is to appoint the Public Advocate as guardian of last resort. Given the potential conflicts of interest that have been referred to, it is in the view of the Tribunal appropriate and in her best interests in any event to have an independent guardian.
As articulated immediately following the hearing, in the circumstances the Tribunal makes the following declaration:
Orders
1.The time for service of notice of the application is shortened.
The Tribunal declares that the represented person C:
(a)is incapable of looking after her own health and safety; and
(b)is in need of oversight and care in the interests of her own health and safety.
and the Tribunal orders that:
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 function:
(a)To advocate for the represented person and determine the services (including, but not limited to, in-home supports, education supports, support to attend outings in the community, equipment and/or technology to maximise her independence at home and in the community and, if thought appropriate, case management services) to which the represented person should have access.
2.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.
3.The guardianship order is to be reviewed by 11 January 2023.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS H LESLIE, MEMBER
28 OCTOBER 2019
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