DC - [2019] WASAT 110

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION:   DC [2019] WASAT 110
MEMBER:   MR J MANSVELD (MEMBER)
HEARD:   23 OCTOBER 2019
DELIVERED          :   8 NOVEMBER 2019
PUBLISHED           :   13 NOVEMBER 2019
FILE NO/S:   GAA 3041 of 2019
DC
Represented Person

Catchwords:

Guardianship and administration - Capacity - Presumption of capacity - Mental disability - Neuropsychological assessment - Alcohol misuse - Mood disorder - Cognition - Reasonable judgments - Health and safety - Oversight in interests of health and safety

Legislation:

Guardianship and Administration Act 1990 (WA), s 3, s 4, s 43, s 44, s 44(5), s 45, s 64, s 68, s 69, s 72(3), s 84

Result:

Guardianship and administration orders made

Category: B

Representation:

Counsel:

Represented Person

N/A

Solicitors:

Represented Person

N/A

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

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

The decision in this matter was delivered on 8 November 2019. The following reasons have been edited from the transcript to anonymise the names of the parties and to correct minor errors and omissions.

History

DC is 33 years of age. He migrated to Australia about eight years ago. He married and has a son who is about 6 years of age. He and his spouse are separated. He has a brother PC who lives in Perth and who is supportive. His parents are deceased.
DC recently travelled with PC to their country of origin for a short stay.
In August 2017 DC was involved in a serious motor vehicle accident during which he sustained a traumatic brain injury. He received rehabilitation services through hospital settings and was accepted as a participant in a community rehabilitation program from March 2019.
The cost of rehabilitation is being met by the Insurance Commission of Western Australia (ICWA). It was reported by the rehabilitation team that DC has no standing to make a personal injuries claim as no other motor vehicle was involved in the accident.
The rehabilitation team further reported that ICWA is in the process of undertaking an independent assessment of DC's functioning to determine whether it should continue to fund his rehabilitation or whether his support needs should be met by the National Disability Insurance Scheme (NDIS). The independent assessment comprises a neuropsychological assessment and an occupational therapy assessment.
The rehabilitation team has made applications for the appointment of a guardian for DC and for the appointment of an administrator of his estate.
The applications are made under the Guardianship and Administration Act 1990 (GA Act).
The applications were heard on 23 October 2019. Present were DC, PC, representatives from the rehabilitation team, the case manager with ICWA, Dr CH, neuropsychologist and JP from the Office of the Public Advocate.
The decision was reserved.

Decision

I have decided to make guardianship and administration orders. My reasons are as follows.

Relevant legislation

The primary concern of the Tribunal is the best interests of DC: s 4(2) of the GA Act.
In considering the applications the Tribunal shall, as far as possible, seek to ascertain the views and wishes of DC as expressed, in whatever manner at the time, or as gathered from his previous actions: s 4(7) of the GA Act.
DC 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(1)(b) of the GA Act, the Tribunal cannot consider appointing a guardian for DC unless it is satisfied on the evidence that he is incapable of looking after his own health and safety; is unable to make reasonable judgments in respect of 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(1)(a) of the GA Act, the Tribunal cannot consider appointing an administrator of the estate of DC unless it is satisfied on the evidence that by reason of a mental disability, he 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, psychiatric condition, an acquired brain injury and dementia.
If a finding of incapacity is made in respect to DC the Tribunal must further determine whether he is in need of guardianship and administration orders. If the needs of DC 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 DC 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)(e), s 44, s 45, s 64(1)(c), s 64(1)(d), s 68, s 69 and s 84 of the GA Act.
As to the authority given to a guardian, if a limited order is sufficient to meet the needs of DC a plenary order should not be made. If a limited guardianship and administration orders are made the orders must place the least restriction necessary on DC: s 4(5) and s 4(6) of the GA Act.

Written material before the Tribunal

In addition to the application made by the rehabilitation team, the following reports have been filed with the Tribunal from:
1)Rehabilitation team submission including a summary of clinical assessments;
2)11 September 2019 (review 23 October 2019) Positive Behaviour Support Plan for DC by the rehabilitation team;
3)Report of 22 May 2019 Dr ST, Consultant in Rehabilitation to DC's General Practitioner (GP);
4)Dr AS, GP including a report from Dr RG, Neurologist, dated 13 August 2019;
5)Case Manager ICWA; and
6)29 September 2019 Dr CH, Registered Clinical Neuropsychologist to ICWA.

Evidence and submissions

Medical reports

The earliest report before the Tribunal is that of Dr ST, from May 2019. In that report Dr ST relevantly states that it has been almost two years since DC sustained a very severe traumatic brain injury. He was continuing to experience cognitive and functional impairments complicated by seizures and alcohol misuse. The cognitive issues related to short-term memory deficits in particular. The alcohol misuse was noted to be problematic from an intake and cravings perspective. It was also noted that an earlier mental health care plan by DC's previous general practitioner in November 2018 recorded a diagnosis of depression and the prescribing of an antidepressant. DC was being seen by a clinical psychologist.
At the time of his report DC's GP had known him for six months and had last seen him in early September 2019. The GP referred to the report of Dr RG. Dr RG states that on a mini mental state examination, DC scored 28/30 with the loss of points relating to a deficit in recall. He noted DC's tendency to binge drinking and the possibility that his seizures relate to his alcohol consumption. The GP assessed DC's brain injury as 'improving' and that he was capable of making decisions concerning his accommodation and support services but was unsure as to his ability to manage his finances, instruct a lawyer in legal matters or execute an enduring power of attorney and enduring power of guardianship.

Dr CH, clinical neuropsychologist

In summary, the results of Dr CH's assessment and opinion, were relevantly:
•The current test results are notably poorer in some areas than the results in the 2018 assessments also undertaken by Dr CH. These areas are sustained attention, verbal learning and aspects of visual memory. DC shows significant cognitive slowing and patchy executive dysfunction, however these are unlikely to impact on social or occupational functioning.
•The cause of the decline is a matter of conjecture and may be impacted by ongoing alcohol use, mood disturbance or organic changes in the brain.
•The alcohol problem is considered clinically significant by Dr CH and he suggested this may include deeper underlying unresolved psychological issues and environmental and social factors. DC is said to acknowledge the alcohol problem but reported to Dr CH that he has no present intention of dealing with the problem.
•DC is considered to show a reasonable grasp of his simple finances and some insight into his income and outgoings. He is able to navigate his bank accounts online. Dr CH considered that DC has many of the core cognitive skills required to make decisions in his best interests if motivated to do so. DC is aware of what he is doing in relation to his money management. Dr CH opined that poor choices made by DC are not the result of cognitive impairment (for example poor memory or impulse control) but rather driven by boredom and the desire for alcohol.
•Dr CH said that the alcohol problem for DC is insufficient to ground for a finding of an impairment of brain function that would render him incapable of managing his finances independently.
•DC is said to have reasonable insight into his current medical status and healthcare needs and is accepting of the care provided by the rehabilitation team. He is said to have sufficient cognitive skills and reasonable knowledge and insight to make medical decisions.
•Dr CH concluded that DC has cognitive capacity to make decisions and that he is not experiencing any cognitive deficits that preclude him from returning to work (as a kitchen hand), although alcohol use is considered a liability.
In his oral evidence Dr CH stated that when he assessed DC in November 2018, DC was doing odd jobs for his brother in the community. DC was suffering from low mood and was under medication for that concern. His attitude had become a problem and he had started to misuse alcohol leading to marital discord. Although formal testing showed some issues with executive functioning, there were no concerns about DC's capacity, however the alcohol issue needed to be addressed.
Dr CH stated that the most recent assessment in September 2019 shows a slightly different picture. Although DC remains on medication for low mood, there is a suspicion that he lacks insight in respect to it. An underlying mood disorder is a possibility as is using alcohol to self‑medicate given that DC has said that alcohol makes his problems go away.
Dr CH was of the view that DC has unlikely reached the threshold of dependency on alcohol in the sense that it is not a driving force in his life. DC engages in binge drinking when he has money but when without funds is less prone to do so. The alcohol use is a very sensitive issue for DC and is said to be opportunistic. DC is said to show insight into his alcohol use and its effects on his functioning.
Dr CH stated that DC continues to have cognitive slowing and issues with his executive functioning but not necessarily a decline in his cognition. This is suggestive of an organic cause and further investigation is indicated, however is probably related to his low mood and alcohol misuse.
As regards his finances Dr CH stated that DC is aware of his income and expenses and the cyclical nature of his alcohol use where he spends most of his money on alcohol in the first week of his fortnightly Centrelink income. However he will in part plan for this by purchasing large amounts of vegetables in the first week in the apparent knowledge he will not have money in the second week of the payment cycle.
Dr CH said that DC recognises the presence of his acquired brain injury, his limitations and the need to avoid overestimating his functional abilities.
Dr CH accepted and acknowledged the assessments and experiences of the rehabilitation team in dealing with DC (see below).

Rehabilitation team

The rehabilitation team have a different perspective on CH's functioning derived from speech pathology and occupational therapy assessments and from the day‑to‑day experiences of the team.
In summary, the rehabilitation team's written submission relevantly stated:
•DC uses alcohol heavily during the week in which he has access to funds. This impairs his rehabilitation. He has been observed as having extreme intoxication in the community and has attempted to steal alcohol. He has also tried to bring alcohol into his accommodation which he knows is not permitted.
•Once DC has exhausted his funds in the first week he has subsequently attended therapy sessions and engaged positively with staff. At those times he will assist in the community garden.
•DC is said to present with a range of communication deficits including understanding information provided verbally. He has a tendency to be verbose, repetitious and confabulates.
•A speech pathology assessment shows that DC has difficulties with higher‑level receptive and expressive language skills which is indicative of a reduced ability to process complex and abstract information. DC is a poor historian and his auditory memory is a significant barrier. He benefits from repetition.
•DC is said to cognitively fatigue when presented with a large volume of information or complex text.
•DC is said to demonstrate inconsistencies with insight into his cognitive deficits and his awareness of how to compensate for the deficits or to ensure his own safety and well-being. For example once when visiting his son in the south‑west of the State, DC did not contact his ex‑spouse in advance; he visited on a weekday when the son was at school; he did not recall there was only one train scheduled each day and presented spontaneously at the train station. As a consequence he became confused because his plan was not unfolding as expected and he became unable to recall how to return to his accommodation. DC then commenced using alcohol and eventually contacted staff but was unable to alert them to his location. Hours later he presented at his home not having achieved any of his self‑identified aims.
•In the experience of the rehabilitation team DC has presented with notable mental health concerns since the motor vehicle accident but will deny their existence which is suggestive of cultural barriers to disclosure. The mental health issues concern grief and profound loss.
•DC is said to be independent with personal care, domestic tasks and simple meals. A recent trial where DC was given responsibility for his medication proved unsuccessful.
•Although DC plans this expenditure with a social worker and an occupational therapist he often spends his money within the first week.
•DC requires substantial support from the rehabilitation team in relation to the making of his treatment decisions.
•DC has indicated that his ultimate goal is to live in Perth in a rental property. However, the view of the rehabilitation team is that he might need some form of supported accommodation.
•DC has frustrated attempts by the rehabilitation team to apply for the disability support pension.
•The rehabilitation team is concerned that DC does not have realisitc work plans as he has identified the hope of gaining employment as a heavy vehicle operator in the mining sector.
•The team is of the view that DC requires assistance and advocacy to ensure that his parental rights are maintained in respect to his son.
In their oral evidence the representatives of the rehabilitation team stated that alcohol is a significant factor in DC's functional problems.
DC is said to need a lot of support to ensure he attends appointments including medical appointments and to keep his accommodation stable. He needs support to problem solve complex tasks and is at risk in the community because of his alcohol abuse.
DC is considered to be a poor historian and needs routine and memory aids such as a diary.
The rehabilitation team stated that when DC is tired, stressed or under the influence of alcohol, he tends to make poor judgments. He will say he is okay (he can present superficially well) when his circumstances do not support such an assessment.
The rehabilitation team stated that the rehabilitation it can offer is time limited and dependent on ongoing funding from ICWA which may not happen after the independent functional review. It is reported that ICWA requires DC to be in independent living with drop‑in support within three months.

PC, brother of DC

PC stated that the situation is not improving for DC; he is bored and his alcohol misuse is destroying everything.
PC said that DC's behaviour is worsening and that his circumstances have regressed since he was discharged from hospital.
PC said that it would be difficult for him take on guardianship and administration for DC because of his work and family commitments.

The Public Advocate

JP from the Office of the Public Advocate said that she has met with DC. She agreed that he is very bored with his current life and consumes alcohol to overcome a sense of isolation and loss. He lives with people who are more impaired than he is.
DC wants to get on with his life and believes he can work. He wants to return to work.
JP submitted that when DC is motivated he can act and achieve as evidenced by him saving his income tax refund and using it pay for his recent overseas trip (the rehabilitation team were not as sanguine, stating that they had to assist DC in having the funds, about $4,500, held in safe‑keeping by PC).
JP did not agree with the views of the rehabilitation team and submitted there are no grounds for orders to be made. She acknowledged that the binge drinking is an issue but believes it has occurred due to DC's changed circumstances.
JP said that DC wants to take charge of his life.
JP stated she has spoken with ICWA representatives and if DC obtains lifelong supports provision can be made for funds to assist him with family law issues concerning access to his son.

DC described his life as '100% bored'. He described a sense of hopelessness in his limitations and in having (at least according to him) nothing purposeful to do.
He accepted that his life has changed radically since the motor vehicle accident.

Discussion of the issues

There is a common theme in the evidence before the Tribunal and that is a profound sense of loss that pervades DC's daily life as a consequence of the motor vehicle accident in August 2017 and the resultant brain injury.
The sense of loss is compounded by the fact that DC had settled into a life in Australia less than 10 years ago from a significantly different culture and despite those inherent difficulties he had established himself with a partner, son and employment.
He also has a brother here as a connection to family.
Subsequent to the accident this is now largely lost to him.
JP stated that DC says he wants to get on with his life but that hope is not congruent with what is actually happening in his life.
It is trite to say but so less true in my view that if DC were able 'to get on with his life' he would be showing greater progress in that endeavour in the now two years since the accident.
DC is in some sense stuck because of the overwhelming sense of loss and his compensatory strategy of cyclical binge drinking which he told Dr CH makes his problems go away. Added to that are the residual deficits of the brain injury, mainly to do with memory and executive functioning, which continue to impose themselves when DC is faced with challenging situations, for example the attempted visit to his son earlier described in these reasons.

Although at first glance the assessments and views of the rehabilitation team and Dr CH are divergent, on reflection they can be considered two sides of the same coin.
A neuropsychological assessment can provide an insight into a person's cognitive strengths and weaknesses on formal (paper and discussion based) testing. However, a person's decision‑making processes have to take place in everyday life experiences when the person is faced with various (changing) stressors and the real consequences of decisions he or she make. In the case of DC, the former is described by Dr CH and the latter by the rehabilitation team.
In the case of DC the relative strengths he has regarding his cognition (or to put it more correctly his residual deficits) are overlain with a profound and ongoing low mood that is well articulated by Dr CH.
Whilst not formally diagnosed in the material before the Tribunal, I accept the characterisation put by Dr CH on DC's low mood and note that DC appears to have medication prescribed to try and alleviate some of the symptoms.
DC's residual deficits from the brain injury together with his significant mood issue, in my view, currently place a barrier to the progress of his rehabilitation and his ability to make reasonable judgments concerning important aspects of his life.
In that regard I give greater weight to the assessment of the rehabilitation team than that of Dr CH given the team's direct experience with DC's day‑to‑day functioning.
DC's ability to extricate himself from his current predicament is clearly compromised.
In respect to a person's personal life, s 43 of the GA Act is in my view intentionally set broadly to not exclude the type of situation that DC finds himself in. It should be noted for example that a finding that a person might be in need of oversight, care or control in the interests of his own health and safety in s 43(1)(b)(iii) of the GA Act, is not explicitly subject to the presumption of capacity in s 4(3).
Also a finding that a person is unable to make reasonable judgments in respect of matters relating to his person in s 43(1)(b)(ii) of the GA Act, is not subject to the requirement as in s 64(1) for financial matters that the inability must be by reason of a mental disability.
I am satisfied on the evidence that DC is incapable of looking after his own health and safety, unable to make reasonable judgments in certain personal matters and is in need of oversight, care or control in the interests of his own health and safety.
On all the evidence DC cannot presently live independently. He places his health and safety at risk because of his cyclical alcohol abuse. Although he may have some insight into the effects of the binge drinking this does not mitigate the risk because he is determined at this stage to continue abusing alcohol.
I am satisfied that DC's mental state is compromised by his low mood (likely a mood disorder) and the residual deficits of his brain injury which together impair his reasoning ability when faced with real life situations.
The question that follows is whether DC is in need of a guardian or whether his needs can be met in a manner less restrictive of his freedom of decision and action.
It is yet to be determined whether DC will receive lifelong funding from ICWA or whether he will have to rely upon the NDIS for his future support needs.
Whatever the case, I am not satisfied that DC is able to currently engage with that question to the extent that he can progress his best interests in the further rehabilitation he clearly needs.
He is not in my view in a position to realistically articulate his short to medium term needs in the areas of his accommodation, support services and further education/training and work.
He is also not in a position to advance his parental rights regarding his son. There is no evidence before the Tribunal that he is currently engaged in any process to determine for example what contact arrangements he may be able to secure and maintain.
I am satisfied that DC is in need of a guardian in these areas of his personal life and that there is no less restrictive alternative currently available. This may change depending on the decision of ICWA and the support and coordination/case management services that may become available to him (although as I have said I am not satisfied he can currently negotiate those services).
I have not included medical treatment in the guardianship order. Although I accept that DC needs support to access medical services, there is insufficient evidence to find that he cannot give informed consent to medical matters. I note that, for example, he is prescribed (and presumably takes) medication for his low mood and is reported to attend a psychologist for counselling.
As there is no one else suitable and willing to be appointed, I must appoint the Public Advocate as DC's limited guardian: s 44(5) of the GA Act.
With respect to DC's finances, his current estate is simple. He is in receipt of a Centrelink payment although it is not clear from the evidence whether there are marital assets in which he has an interest.
As found by Dr CH, DC is aware of his estate, is able to calculate his income and expenses and access his income. This is a relatively simple cognitive task given the straightforwardness of the estate.
Of course being able to manage an estate is not the same as making reasonable judgments in respect to it.
DC in my view is not making reasonable judgments about the expending of his income in light of his binge drinking which consumes the majority of his money (despite the fact that he seems to undertake some minimal planning as described earlier in these reasons).
The binge drinking has a negative effect on DC's rehabilitation and it seems to be the case that when he runs out of money after the first week of the two week Centrelink payment cycle, he is less prone to seek alcohol and becomes more engaged with his rehabilitation.
As DC seeks greater independence he will likely need to contribute more of his income towards his day‑to‑day living.
Section 64 of the GA Act requires that a mental disability be the reason that DC is making unreasonable judgments about his estate.
The definition of mental disability in s 3 of the GA Act is not exhaustive. As I have already found, I am satisfied that the residual deficits of the acquired brain injury in combination with the mood disorder constitute a mental disability for the purposes of the GA Act.
There are no less restrictive alternatives to the making of an administration order. DC already receives budgeting assistance from the rehabilitation team which he does not appear to follow.
There is no one proposed as administrator. I will therefore appoint the Public Trustee as DC's plenary administrator. I will authorise gifting not exceeding $500 per annum: s 72(3) of the GA Act.
I will set review of the guardianship and administration orders in 12 months: s 84 of the GA Act.

Orders

1.The Tribunal declares that the represented person, DC is:
(a)unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all of his estate; and
(b)in need of an administrator of his estate.
(c)incapable of looking after his own health and safety;
(d)unable to make reasonable judgments in respect of matters relating to his person;
(e)in need of oversight, care or control in the interests of his own health and safety; and
(f)in need of a guardian.

The Tribunal orders:
Administration
1.The Public Trustee of 553 Hay Street, Perth, Western Australia is appointed plenary administrator of the represented person's estate with all the powers and duties conferred by the Guardianship and Administration Act 1990 (WA).
2.The administrator is authorised to expend up to a total amount of $500.00 per annum on gifts on behalf of the represented person.
Guardianship
3.The Public Advocate of David Malcolm Justice Centre, Level 23, 28 Barrack Street, Perth, Western Australia is appointed limited guardian of the represented person with the following functions:
(a)To decide where the represented person is to live, whether permanently or temporarily;
(b)To decide with whom the represented person is to live;
(c)To decide whether the represented person should work and, if so, the nature or type of work, for whom they are to work and any related matters;
(d)To determine the services to which the represented person should have access;
(e)To decide what education and training the represented person is to receive; and
(f)To advocate and, if necessary, to seek legal advice and representation regarding any family law matter that may arise in respect of the represented person's son.

4.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.
5.The administration and guardianship orders are to be reviewed by 8 November 2020.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MR J MANSVELD, (MEMBER)
14 NOVEMBER 2019