CT
[2008] WASAT 286
•3 DECEMBER 2008
CT [2008] WASAT 286
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2008] WASAT 286 | |
| GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) | |||
| Case No: | GAA:2573/2008 | 25 AUGUST 2008 AND 15 OCTOBER 2008 | |
| Coram: | MS F CHILD (MEMBER) | 2/12/08 | |
| 9 | Judgment Part: | 1 of 1 | |
| Result: | Order appointing an administrator revoked | ||
| B | |||
| PDF Version |
| Parties: | CT |
Catchwords: | Guardianship and administration Review of administration order Diagnosis of longstanding mental illness Fluctuating condition Presumption of capacity not set aside |
Legislation: | Guardianship and Administration Act 1990 (WA), s 4, s 4(2), s 64, s 84, s 90 |
Case References: | Nil |
Summary | Following periodic review of an administration order the Tribunal revoked the order. The order had been made five years before and had appointed the Public Trustee as the plenary administrator of the estate of a woman with a diagnosis of a mental illness.,The Tribunal revoked the order as it was not satisfied that the presumption of capacity set out in the legislation had been set aside by the evidence before the Tribunal in the woman's case. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : HUMAN RIGHTS ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : CT [2008] WASAT 286 MEMBER : MS F CHILD (MEMBER) HEARD : 25 AUGUST 2008 AND 15 OCTOBER 2008 DELIVERED : 3 DECEMBER 2008 FILE NO/S : GAA 2573 of 2008 BETWEEN : CT
- Represented Person
Catchwords:
Guardianship and administration - Review of administration order - Diagnosis of longstanding mental illness - Fluctuating condition - Presumption of capacity not set aside
Legislation:
Guardianship and Administration Act 1990 (WA), s 4, s 4(2), s 64, s 84, s 90
Result:
Order appointing an administrator revoked
(Page 2)
Category: B
Representation:
Counsel:
Represented Person : N/A
Solicitors:
Represented Person : N/A
Case(s) referred to in decision(s):
Nil
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Summary of Tribunal's decision
1 Following periodic review of an administration order the Tribunal revoked the order. The order had been made five years before and had appointed the Public Trustee as the plenary administrator of the estate of a woman with a diagnosis of a mental illness.
2 The Tribunal revoked the order as it was not satisfied that the presumption of capacity set out in the legislation had been set aside by the evidence before the Tribunal in the woman's case.
Background
3 The represented person is a woman of 36 years who has a diagnosed mental illness. The order under review is one made in 2003 by which the Public Trustee was appointed the plenary administrator of her estate. The represented person is in receipt of a disability support pension and has lived for the last few years in New South Wales. She was recently hospitalised for a period of four weeks and is now treated with medication in the community.
History of orders
4 The represented person was first made subject to an administration order in 1998 following an application by the Public Trustee to the Guardianship and Administration Board (Board) while she was an inpatient at a psychiatric hospital. The diagnosis of the represented person as reported by the Psychiatric Registrar at that time was 'schizoaffective disorder'. The condition of the represented person was said to be 'fluctuating'. The order made by the Board appointed the Public Trustee as plenary administrator with a review date in one year. The order was reviewed in 1999 and revoked. On review, the psychiatric evidence, in a report dated 14 December 1999, was that the represented person was currently stable and did not have a diagnosis that impaired her cognitive ability. Although the report noted that it was impossible to predict when the represented person would have another relapse, the psychiatrist considered her 'legally competent and able to manage her affairs'.
5 In January 2001, a further application was made for the appointment of an administrator for the represented person. The applicant was a social worker from the local mental health service which the represented person attended. The Psychiatric Registrar, Dr T, in a report dated 25 January 2001, noted that the represented person had
(Page 4)
- been admitted to hospital from 30 November 2000 and her condition was diagnosed as 'bipolar affective disorder' which was described as 'fluctuating' and 'improving'. The medical opinion was that she was incapable of managing her financial affairs. An order was made appointing the Public Trustee plenary administrator, reviewable in February 2003.
6 That order was reviewed on 5 September 2003 and confirmed for a period of five years. A file note dated 5 September 2003 made by the member who determined the matter records the following:
No medical reports of the [represented person]'s capacity made available.
The [represented person] had not seen her treating [doctors]. The [represented person] did not attend but phoned the Board.
I decided the [represented person] did not have capacity for the following reasons:
[T]he [represented person]'s aunt, present told of the [represented person]'s ongoing difficulties, including paying fines;
[T]he [represented person] wanted to continue with the P/T as she considered it helpful to pay her bill;
[T]he medical reports from 1998 indicate a chronic condition.
7 An application was made on behalf of the represented person in October 2004 for review of the order, but the application was dismissed as no medical evidence was produced for the review.
Current review
8 The current review is a periodic review pursuant to s 84 of the Guardianship and Administration Act 1990 (WA) (GA Act) of the administration order made on 5 September 2003.
Legislation
9 Orders made for the appointment of an administrator under the GA Act are not permanent. The legislation requires that they be reviewed periodically. The maximum period of an order is five years. On review, the Tribunal may confirm, amend, substitute a new order or revoke an order (s 90 of the GA Act).
10 In any proceedings under the GA Act, the Tribunal is required to observe the principles set out in s 4(2) of the GA Act.
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11 Those principles provide that the primary concern of the Tribunal must be the best interests of any represented person; every person shall be presumed to be capable of looking after their own health and safety, and making reasonable judgments in respect of matters relating to their person; managing their own affairs; and making reasonable judgments in respect of matters relating to their estate, until the contrary is proved to the satisfaction of the Tribunal. The principles also include that orders should not be made if the needs of the person concerned could, in the opinion of the Tribunal, be met by means less restrictive of the person's freedom of decision and action. Any order made should be in terms that impose the least restrictions possible in the circumstances on the person's freedom of decision and action. In considering any matter, the Tribunal is bound to attempt to ascertain the wishes of the person as expressed or gathered from the person's previous actions.
12 To make an order on review for the represented person, the Tribunal must be satisfied that she is a person for whom an order can be made, that there is a need for the order and there are no less formal means by which her needs can be met.
13 In respect of an administration order, the Tribunal must be satisfied that the person is unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all or any part of her estate (s 64 of the GA Act).
Evidence
Capacity
14 For the purpose of the review, requests were made, by letter from the Tribunal dated 7 July 2008, for reports from both the represented person's treating doctor, Dr H, and her case manager, Ms J. Both advised staff of the Tribunal on or around 22 August 2008 that they were unable to assist with reports, as they had at that time seen the represented person once only.
15 The review first came on for hearing on 25 August 2008. At the hearing, the represented person advised that she wished to regain independence for her finances. She agreed to see Dr H for an assessment of her capacity to manage her finances. The hearing was adjourned for a report to be obtained.
16 Prior to the hearing being reconvened, the Tribunal received reports from Dr D, a medical officer at a hospital to which the represented person had been admitted since the first hearing, and a report from Ms J, the case manager.
(Page 6)
17 The report of Dr D, dated 24 September 2008, notes that the represented person has bipolar disorder and this condition was noted on her admission (to hospital).
18 It is reported that:
the [patient] remains elevated occasionally intrusive and irritable but is settling over time. Currently is being trialled on Lithium and Epilim and we are awaiting response to this.
19 In response to a question about whether the represented person is capable now of making reasonable decisions in relation to her financial affairs, Dr D responds:
Not sure [patient] is improving and in transition as far as [her] mental health.
20 Her opinion is that the represented person is incapable of executing an enduring power of attorney.
21 In her report, dated 9 October 2008, the case manager, Ms J, confirms the represented person's diagnosis of bipolar affective disorder.
22 In response to an invitation to comment on the represented person's mental state, she notes:
At present [the represented person] does not appear to be confused. She can follow instructions and does not get disorientated or lost, but this can change when she becomes unwell. When [the represented person] does become unwell she has strong support from her fiancé and mother in law to be.
23 Later in the same report:
[The represented person] is managing a budget day to day and is quite responsible with taking care of her money and forward plans [sic] writing down things she needs to pay first before treating herself to things.
After discussing [with the represented person] about her finances and budgeting it is my opinion that she doesn’t require a guardian.
24 (It is presumed that she means an administrator of the represented person's estate.)
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25 At the reconvened hearing, the represented person advised that she had been admitted to hospital some weeks after the first hearing and had been hospitalised for about four weeks following a 'breakdown'. At the time of the second hearing, she had been discharged from hospital about two weeks. She stated in her evidence that her fiancé and his mother had supported her through her (recent) episode.
26 Further oral evidence was sought from both Dr D and Ms J at the reconvened hearing. Ms J was unavailable, but Dr D gave evidence that she had not seen the represented person since her discharge from hospital.
27 She said:
It would not be fair for me to say now how [the represented person] is going and what her capacity is now. At the time I filled in the report I didn't feel that she was capable of having an enduring power of attorney … and I was unsure about her ongoing ability to manage her own finances.
28 The doctor went on to say that the represented person had been discharged to the community with follow-up by her community mental health team and Dr H.
29 The report of Ms J, dated 9 October 2008, was put to Dr D, and she responded that it was 'probably more relevant' (to the question of capacity of the represented person.)
Reasons
30 The represented person has a diagnosed mental illness which she acknowledges and for which she is being treated with medication. The psychiatric evidence, both in 2001 and in 2008, is that it is a fluctuating condition. From this description, and from what is known about her history of admissions to hospitals both in Western Australia and in New South Wales, it is understood that the represented person could become mentally unwell in the future. There is evidence of this in her recent hospitalisation.
31 A mental illness is a mental disability within the meaning of the GA Act, but the existence of a mental disability does not of itself mean that an administration order can be made. There must be evidence of an inability of the represented person to make reasonable judgments about her estate by reason of that disability (s 64 of the GA Act).
32 The question for the Tribunal is whether the represented person is by reason of her disability unable to make reasonable judgments about any or all of her estate. If the answer to that first question is 'yes', then the further
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- question of whether she is in need of an administrator must be considered.
33 The represented person's estate consists of her disability support pension income and some $542 in the Public Trustee's cash account. She pays a high proportion of her income as rent. The Public Trustee's report refers to finances being 'tight'.
34 As noted, in all proceedings under the GA Act, the Tribunal is bound by the principles in s 4. Relevant here is the presumption that persons coming before the Tribunal are capable of making reasonable judgments themselves in matters relating to their estates until the contrary is proved to the satisfaction of the Tribunal.
35 The only conclusive evidence of an inability or incapacity of the represented person to make reasonable judgments about her estate is in the report of Dr T referred to above, which dates from 2001. In the more recent report of Dr D from September 2008, prepared during the recent admission of the represented person to hospital, the doctor is 'unsure' about the represented person's capacity. The seeming ambiguity that Dr D regarded the represented person as incapable of executing an enduring power of attorney is unresolved. In any event, Dr D deferred to the 'probably more relevant' [T:10] opinion of Ms J, the case manager who had seen the represented person more recently (since her discharge from hospital), and who specifically addresses the question of financial decision-making such as budgeting and forward planning in her report.
Wishes
36 The Tribunal is bound to ascertain the wishes and views of the represented person. Those wishes expressed in the hearing are that she resume management of her own affairs. This is in contrast to her reported wishes in 2003.
Conclusion
37 Having considered the reports, I rely on the report of Ms J as the more recent report, which specifically addresses the represented person's management of finances. Dr D was not able to assist the Tribunal as she had not seen the represented person since her release from hospital. Even during the period of the represented person's admission to hospital Dr D was unsure about the represented person's capacity to make financial decisions. The evidence as a whole falls short of that which is required to satisfy the provisions of s 64 of the GA Act in respect of the represented person.
(Page 9)
38 I am not satisfied that the evidence before the Tribunal sets aside the presumption in the legislation that the represented person is capable of making reasonable judgments in respect of matters relating to her estate. It follows from this that the administration order should be revoked.
Order
The Tribunal orders that, on review of an order dated 5 September 2003 concerning the represented person [name deleted], the administration order be revoked.
I certify that this and the preceding [38] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS F CHILD, MEMBER
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