DN
[2021] WASAT 43
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: DN [2021] WASAT 43
MEMBER: JUDGE D R PARRY, DEPUTY PRESIDENT
DR B DE VILLIERS, MEMBER
MS F CHILD, MEMBER
HEARD: 8 FEBRUARY AND 11 MARCH 2021
DELIVERED : 19 MARCH 2021
FILE NO/S: GAA 4826 of 2020
DN
Applicant
PUBLIC TRUSTEE
Second Party
Catchwords:
Review by Full Tribunal of determination of single member to make administration order appointing Public Trustee as plenary administrator of represented person's estate - Whether presumption of capacity displaced - Whether need for administration order - Period for review of administration order
Legislation:
Guardianship and Administration Act 1990 (WA), s 3(1), s 4(2), s 4(3)(d), s 17A(1), s 17A(2), s 40(1), s 64(1), s 84, s 86(1)
Result:
Administration order made appointing Public Trustee as plenary administrator of represented person's estate to be reviewed within 12 months
Category: B
Representation:
Counsel:
| Applicant | : | In person |
| Second Party | : | No appearance |
Solicitors:
| Applicant | : | N/A |
| Second Party | : | N/A |
Case(s) referred to in decision(s):
LP [2020] WASAT 25; (2020) 99 SR (WA) 123
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
On 3 December 2020, DN emailed the Tribunal to 'request a hearing to revoke the order of [P]ublic [T]rust[ee] management of my pension cheque' and stating 'enough is enough!'.[1] The email was accepted as an application under s 17A(1) of the Guardianship and Administration Act 1990 (WA) (GA Act) for review by a Full Tribunal of the determination by a single member on 17 September 2020 to make an administration order appointing the Public Trustee as plenary administrator of the estate of DN. The member also made a 'gifting' order enabling the administrator to expend up to a total of $500 per annum on gifts on behalf of DN, required the Public Trustee to send DN a statement twice a year setting out the transactions, disbursements and fees for the relevant period and the balance of her account, and determined that the administration order is to be reviewed by the Tribunal (under s 84 of the GA Act) by 17 September 2021, that is within 12 months of the making of the administration order.
[1] Hearing book (Exhibit 1) page 5.
Under s 17A(2) of the GA Act, an application under s 17A(1) of the GA Act must be made within 28 days of the date of the determination. The application under s 17A(1) of the GA Act is seven weeks out of time, because it was made 11 weeks after the single member's determination. However, we are satisfied that there is 'good reason for making the request outside that time', for the purposes of s 17A(2) of the GA Act, because the application could have been accepted as an application for review of the administration order under s 86(1) of the GA Act (without any extension of time being required), the delay was not very significant and DN is clearly aggrieved by the determination.
Background
DN is a 58 year old woman with a long standing diagnosis of chronic, treatment resistant paranoid schizophrenia and attention deficit disorder (ADHD). DN has been hospitalised six times at Graylands Hospital. Her most recent inpatient admission was for 11 days between 14 and 24 December 2020. Her most recent inpatient admission before that time was for a period of about six months between March and October 2018.
DN lives in a supported accommodation facility in a suburb of Perth. Her formal supports also include case management as an outpatient at the Osborne Park Community Mental Health Clinic and regular medical reviews with her general practitioner, Dr PR. She also has an NDIS package, which includes weekly support with transport and monthly reviews.
On 26 March 2018, while DN was an inpatient, Graylands Hospital applied to the Tribunal under s 40(1) of the GA Act for the appointment of an administrator and a guardian for DN. On 25 June 2018, the Tribunal made a guardianship order appointing the Public Advocate as DN's limited guardian, to make accommodation and services decisions for her, and made an administration order appointing the Public Trustee as plenary administrator of DN's (financial) estate. Both orders were to be reviewed by 24 June 2023, that is within five years.
About a year later, on 7 July 2019, DN made an application under s 86(1) of the GA Act seeking revocation of the guardianship and administration orders. On 19 September 2019, the Tribunal reappointed the Public Advocate as limited guardian with the same functions and the Public Trustee as plenary administrator and determined that the orders were to be reviewed by 19 September 2020, that is within a year.
On 11 March 2020, DN again applied for the review of the guardianship and administration orders under s 86(1) of the GA Act. On 19 September 2019, the member hearing the matter confirmed the orders and made a gifting order enabling the Public Trustee to expend up to $500 per annum on gifts on behalf of DN.
The same member reviewed the guardianship and administration orders under s 84 of the GA Act on 17 September 2020. The member revoked the guardianship order and made the administration order and the consequent orders referred to earlier.
Evidence
DN asserted at the hearing on 8 February 2021 and maintains that she does not have paranoid schizophrenia and (only) has ADHD. She asserts that any difficulty she has experienced in managing her personal and financial affairs results from misdiagnosis and inappropriate treatment with antipsychotic medications that were forced on her and have made her sick. She asserts that her ADHD has been ignored and the medications given were 'dopamine blocking' medications which exacerbated her condition.
The Tribunal has medical evidence in the form of a medical report and a service provider report by Dr PR, both dated 28 January 2021, a medical report by Dr MH, who is a psychiatrist, dated 7 August 2020 and DN's most recent discharge summary from Graylands Hospital dated 30 December 2020. The Tribunal also has a service provider report by Registered Nurse MB, who is a Clinical Nurse Specialist at the Osborne Park Community Mental Health Clinic, which is undated but was provided to the Tribunal by MB on 9 February 2021.
When this matter was first listed and heard by the Full Tribunal on 8 February 2021, it became clear that the Tribunal did not have a report from MB, an occupational therapy report that was referred to by the delegated guardian at the hearing on 17 September 2020, or any evidence in relation to DN's most recent hospitalisation in December 2020. We made orders for the provision of the occupational therapy report and the discharge summary upon DN's most recent discharge from hospital, and required MB to provide a service provider report and Dr CH of Graylands Hospital (who DN identified as her treating psychiatrist during her most recent hospitalisation) to provide a medical report by 22 February 2021. We adjourned the hearing until 2.00 pm on 11 March 2021.
On 2 March 2021, Dr CH emailed the Tribunal stating that 'I am not [DN's] regular doctor, and only had brief contact with her in Dec 2020' and 'I am not in a position to complete a medical report or attend a hearing'. Dr CH attached the discharge summary to his email. At the hearing on 8 February 2021, DN said that she no longer sees Dr MH and that she has not seen any other psychiatrist (other than Dr CH). At the further hearing on 11 March 2021, MB said that he had arranged for DN to have a consultation with a different psychiatrist on 10 March 2021, but DN declined to see that doctor. Although we do not have a more recent medical report than 28 January 2021, we have sufficient medical and other evidence to be able to determine the review in the best interests of DN.
Dr PR, who has been DN's general practitioner since 2009 and saw her four times in the 12 months prior to 28 January 2021, states that DN has a mental disability, namely 'Chronic Paranoid Schizophrenia' and 'ADHD', which were diagnosed 'decades ago'. She describes DN's disability as 'fluctuating'.[2] Dr PR states that she is 'unsure' as to whether DN has the cognitive capacity to make reasonable decisions in relation to simple financial matters (such as managing a budget, payment of accounts and purchasing essential items), noting that 'previously [DN] did get into debt and was not managing well but I think she could have a small [amount] for incidentals'.[3] However, Dr PR expresses the opinion that DN is 'incapable' of making complex financial decisions (such as management of property or large sums of money, purchase or sale of significant assets, pursuing entitlements and advocating for her own interests with financial institutions) and that she is 'incapable' of making reasonable decision in relation to legal matters (such as commencing, defending, or settling proceedings).[4] Dr PR also notes that DN 'lacks insight into her schizophrenia diagnosis + continues to deny she has it'.[5]
[2] Exhibit 1 page 8.
[3] Exhibit 1 page 8.
[4] Exhibit 1 page 8.
[5] Exhibit 1 page 9.
Dr MH, who had seen DN ten times over the nine months prior to 7 August 2020, gave consistent evidence in her report to the evidence given by Dr PR in her reports. However, Dr MH expresses the opinion that DN is 'incapable' of making both simple and complex financial decisions, because DN is '[i]mpulsive, forgetful [and] influenced by psychotic symptoms on a daily basis'.[6] Dr MH also notes that DN is 'doing well on current admin order'.[7]
[6] Exhibit 1 page 14.
[7] Exhibit 1 page 14.
The discharge summary following DN's most recent hospitalisation at Graylands Hospital states as follows:[8]
[DN] is a 58 yo female with an established diagnosis of Paranoid Schizophrenia, well engaged with Osborne CMH clinic. Lives in [the supported accommodation facility]. Referred on 1A and 4A secondary to deterioration in mental state and non[-]compliance with oral medications. Paranoid ideation towards MH services accusing [P]ublic [T]rustee of stealing $9k, impulsively pickling [sic] skin due to belief that there are pellets embedded, paranoid that support worker has been tampering with her cigarettes. Associated decline in function. Behaviour escalating, verbally abusing and hostile towards CMH team and staff at [the supported accommodation facility]. [DN] insists she is well and that everyone else is paranoid. States she was switched to oral medication from depot approx. 6 months ago and the meds make her 'sick'. States ADHD is her only issue and she does not have schizophrenia.
[8] Supplementary Hearing Book (Exhibit 2) page 4.
In describing whether DN is able to make simple or complex financial decisions, for example forward planning, MB states in his report that '[w]hen well she has full capacity, however, she has frequent relapses which do effect [sic] her complex decision making'. In describing whether DN is able to understand and follow the advice of her treating medical professionals, MB states that '[w]e have ongoing conflict regarding diagnosis and insight', although DN is '[c]urrently accepting of [the] treatment plan'.[9] Consistently with the evidence of Dr PR and Dr MH, MB notes that DN has '[v]ery poor insight into her illness' and '[n]eeds significant support and guidance regarding maintaining stable mental state'.[10]
[9] Exhibit 2 page 19.
[10] Exhibit 2 page 19.
In a service provider report dated 3 February 2021, PW, who is the manager of the supported accommodation facility, states that DN 'can plan and budget her finances that are allocated to her' and that she 'can make financial decisions' in her own best interests.[11] Similarly, KM, who is DN's NDIS support coordinator, said at the hearing on 11 March 2021 that DN has been able to manage and budget from the allowance of $230 per week given to her by the Public Trustee ($115 on Monday and $115 on Thursday). In relation to whether DN is vulnerable to financial exploitation by others, PW states that DN 'would not be vulnerable with financial decisions unless mentally unwell, I do believe that she would then be at risk'.[12] However, we note that less than two months before PW's report, and while DN was living at the supported accommodation facility, she was hospitalised for a deterioration in her mental illness and expressed and displayed paranoid ideation towards mental health services and others during her hospitalisation.
[11] Exhibit 3 page 2.
[12] Exhibit 3 page 2.
At the hearing before the single member on 17 September 2020, DN's then delegated guardian AW gave the following evidence:[13]
I don't believe that the orders for guardianship are required any more. I've seen [DN] when she was most unwell and I've seen her as she is now, and there has been quite a dramatic change in her since her medication changed. She now makes rational - I know she's a little bit excited at the moment but she makes rational decisions based on her lifestyle, based on the things that she wants to do.
She forward plans what she wants to do on her outings. And I think as far as the services go, with the assistance from [KM], who will help [DN] to source the services that she requires, I think that she is at no risk of being abused or taken advantage of any more than anybody else would be. As for the housing, yes, there was this incident. Most of the damage was done to the house while [DN] was in the hospital.
That is history, so today I'm looking at a woman who is quite different from that woman back then and she's making good decisions. She wants to go to [a regional town] to be near her mother and her sister. She's already looking at the housing market … there and asking [KM] to research for her, you know, how she can pay her bond and if she can get that through Homeswest.
[13] ts 24, 17 September 2020.
The 'damage [that] was done to the house' referred to by AW relates to damage to DN's Homeswest unit carried out by other people before and during the period when she was hospitalised in 2018. Although the damage to the unit was done by others and could not have been prevented by DN during the period when she was in hospital, the Department of Housing charged her a tenant liability of $14,460.95. The Public Trustee applied to the Department of Housing under the Debt Discount Scheme and obtained a reduction in the debt of $7,230.47. The Public Trustee also put in place a payment arrangement of $50 per fortnight with the Department of Housing to pay off the discounted amount.
At the hearing on 17 September 2020, AW recommended that the Tribunal should revoke both the guardianship order and the administration order then in place. In relation to the administration order, AW referred to DN's successful negotiation with the supported accommodation facility to remain as a resident, even though accommodation at this facility is generally on a temporary basis only. As DN 'negotiated that herself', AW said that 'I feel that she is capable of negotiating a lease'.[14]
[14] ts 25, 17 September 2020.
The occupational therapy report dated 8 June 2020 by SS states that, although no cognitive testing was used, it appeared that DN 'had difficulty with her working memory and processing speed, as related to her ADHD' and that she 'demonstrated some reduced cognitive flexibility which impacts on her ability to complete tasks when they are not set up in a certain way'.[15] In relation to money management, SS states in the report that DN 'expressed anger over not being able to manage her own money, and was upset that she had to apply for access for additional money to buy her mother a birthday gift'. SS then made the following recommendations:[16]
•Although managed by SAT [Public Trustee] currently, [DN] would benefit from steps to increase her ability to manage money. This could include OT [occupational therapy] input around money management strategies.
•[DN] may also benefit from external financial counselling in the future.
DN's views and wishes
[15] Exhibit 2 page 10.
[16] Exhibit 2 page 13.
DN is adamant that she has been wrongly diagnosed with schizophrenia since 2003 and has been wrongly medicated since that time as a consequence. She said at the hearing on 11 March 2021 'I am not a schizophrenic. I have never been a schizophrenic. I have ADHD'. She asserts that she was wrongly made the subject of orders under the Mental Health Act 2014 (WA) and that no one had any right to control her estate.
DN seeks the revocation of the administration order, because, as she said to the single member at the hearing on 17 September 2020, 'I never was too mentally unstable to handle my finances'[17] and 'I've always been independent. Losing my independence stifled me'.[18] When asked by the member whether she would continue paying off her debt with the Department of Housing, DN says 'Yes, I will do that. I will do that' and 'I pay my bills, I always did'.[19] DN maintained the same position at the hearing before the Full Tribunal. She said that although she can 'get by' on her allowance from the Public Trustee, 'I want my pension cheque'.
[17] ts 10, 17 September 2020.
[18] ts 14, 17 September 2020.
[19] ts 15, 17 September 2020.
DN takes issue with the refusal of the Public Trustee to expend her money on the purchase of a car, but acknowledges that she does not currently have a driver's licence. In the course of the hearing on 11 March 2021, DN said she would not cooperate with a required fitness to drive test, because she does not want to consult with doctors who force medication on her.
Is the presumption of capacity displaced?
Under s 4(2) of the GA Act, the 'primary concern' of the Full Tribunal is 'the best interests' of DN, which involves an objective assessment of the facts and circumstances of the case while taking into consideration DN's views and wishes. Under s 4(3)(d) of the GA Act, DN is presumed by law to be capable of 'making reasonable judgments in respect of matters relating to [her] estate, until the contrary is proved to the satisfaction of the State Administrative Tribunal'. In particular, the presumption of capacity can only be displaced if the Tribunal is satisfied, on a balance of probabilities, by clear and cogent evidence and feels an actual persuasion on the evidence[20] that, under s 64(1) of the GA Act, DN:
(a)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; and
(b)is in need of an administrator of [her] estate …
[20] See LP [2020] WASAT 25; (2020) 99 SR (WA) 123 (Judge Parry DP, Ms M Connor M and Dr H Hankey S Sess M) [99][109].
The term 'mental disability' is defined in s 3(1) of the GA Act as including 'a psychiatric condition'. We are satisfied on a balance of probabilities and feel an actual persuasion on the evidence that DN has a 'mental disability', namely the 'psychiatric condition' of paranoid schizophrenia, which is chronic and treatment resistant, although her mental state is significantly improved when she is taking appropriate medication and under appropriate care.
We are also satisfied on a balance of probabilities and feel an actual persuasion on the evidence, including the medical evidence, that, by reason of her mental disability, DN is unable to make reasonable judgments in respect of matters relating to all of her (financial) estate.
Significantly, even though DN was engaged with the Osborne Park Community Mental Health Clinic and living in appropriate supported accommodation at the supported accommodation facility, her mental state seriously deteriorated following non-compliance with oral medications and she was again hospitalised. While in hospital, DN expressed and exhibited paranoid ideation towards mental health services and in relation to financial matters, accusing the Public Trustee of stealing $9,000, as well as expressing other paranoid thoughts and behaviours. We also accept the evidence in the medical reports which overwhelmingly express the opinion that DN is unable, by reason of her paranoid schizophrenia, to make reasonable financial decisions, even in relation to simple financial matters. Although Dr PR said that she was 'unsure' as to whether DN is capable of making reasonable financial decisions in relation to simple financial matters, she also referred to DN previously getting into debt and not managing well. Dr MH explained that DN is incapable of making reasonable financial decisions, including in relation to simple financial matters, because she is '[i]mpulsive, forgetful [and] influenced by psychotic symptoms on a daily basis'.[21] This statement was made by Dr MH at a time when DN was engaged with mental health services, prescribed medication and living in appropriate supported accommodation in the community. Furthermore, all of the professionals who have given reports refer to DN as lacking insight into her mental condition and the risk this creates in compromising her treatment and the maintenance of her mental stability. This lack of insight was clearly apparent during the hearings before the Full Tribunal. Being influenced by psychotic symptoms and paranoid thoughts, and lacking insight into her mental condition, result in DN lacking capacity to make reasonable financial judgments.
[21] Emphasis added.
We referred earlier to AW's evidence at the hearing before the single member that 'I've seen [DN] when she was most unwell and I've seen her as she is now, and there has been quite a dramatic change in her since her medication changed' and 'today I'm looking at a woman who is quite different from that woman back then and she's making good decisions'.[22] However, unfortunately, less than three months later DN's mental condition significantly declined to the point that she was again hospitalised.
[22] ts 24, 17 September 2020.
We also do not accept AW's view expressed to the single member that 'I feel that [DN] is capable of negotiating a lease',[23] because she successfully negotiated with the supported accommodation facility to remain as a resident. Again, being influenced by psychotic symptoms and paranoid thoughts, lacking insight into her mental condition and her recent relapse shows that DN is currently not capable of reasonable decisionmaking in relation to the financial and legal matters that are involved in obtaining a lease of property. This is the case in relation to a private rental and even more so if DN wishes to again live in a Homeswest property, given the current relatively significant debt that she still owes the Department of Housing and the circumstances resulting in that debt.
[23] ts 25, 17 September 2020.
It follows that the presumption of capacity is displaced in this case.
Is there a need for an administration order and is there a less restrictive alternative to the making of an administration order?
There is clearly a need for an administration order, because, although DN has a limited estate consisting of her disability support pension and a balance of $4,870.76 (as at 3 February 2021) held by the Public Trustee and has managed and budgeted from the allowance of $230 per week given to her by the Public Trustee, someone needs to make broader budgeting decisions as to how to most effectively use her pension to be able to pay her rent and other living expenses, while continuing to save some of the pension for larger purchases, such as a car (which DN would like), and unforeseen future expenses, and to continue to pay off the debt to the Department of Housing and potentially to advocate on her behalf to further reduce the discounted amount. This is particularly important if DN wishes to again obtain permanent Homeswest accommodation.
Furthermore, we find that DN is vulnerable to financial exploitation. Although PW considers that DN 'would not be vulnerable with financial decisions unless mentally unwell',[24] DN has recently been acutely mentally unwell to the point of hospitalisation. Although DN is generally careful about her own money and, it appears owing to her psychiatric condition, generally unwilling to trust others, there is evidence that she has previously been financially exploited by a person to whom she owed $200 and who she trusted with her bank card and PIN to take out $200 to pay off the debt and another sum for DN, and the person withdrew and stole the whole of DN's pension. Although DN explained to the Tribunal on 17 September 2020 'that only happened once', 'I won't give anybody my card again' and 'I learned from that',[25] it remains the case that when DN is mentally unwell, which occurred again recently, she is vulnerable to financial exploitation.
[24] Exhibit 3 page 2.
[25] ts 12, 17 September 2020.
We have considered, in the context of whether there is a need for an administration order, whether there is any less restrictive alternative to the making of an administration order. However, we do not consider that there is any less restrictive alternative in the circumstances of this case. We recognise that DN has informal support from PW (while she remains at the supported accommodation facility) and from her son, NJ. However, the informal support from PW does not extend to assisting DN in relation to financial decision-making and will not continue if, as DN wishes to do, she moves into private accommodation, perhaps closer to her family home in a regional town. NJ did not indicate that, or how, he would informally assist his mother with financial decisionmaking. NJ said at the hearing on 11 March 2021 that 'all I want is for [DN] to be safe' and that 'I am not in a position to look after her'.
Should the administration order be limited or plenary?
In our view, a plenary administration order is necessary because of the range of financial decision-making that may be required on behalf of DN, including making financial arrangements and entering into a lease for permanent accommodation, continuing to pay the debt to the Department of Housing and potentially purchasing a car. In this regard, we note that the occupational therapy report indicates that DN would like to save up to purchase a car and expresses the understanding that DN has obtained a driver's licence. At the hearing on 11 March 2021, DN confirmed that she would like a car, but, as indicated earlier, acknowledged that she does not currently have a driver's licence. MB also refers to DN's desire to purchase a car and considers that this is 'not unreasonable'.[26] However, as indicated earlier, DN told the Full Tribunal that she would not cooperate with a required fitness to drive test, because she does not want to consult with doctors who force medication on her.
[26] Exhibit 2 page 19.
As we said earlier, DN had a balance of $4,870.76 as at 3 February 2021 held by the Public Trustee. Although it is a matter for the administrator, acting in the best interests of DN, it would seem that, if DN undertakes and passes the fitness to drive test and obtains a driver's licence, purchasing a car and budgeting for necessary expenses is something that the administrator should consider, particularly given that DN requires permanent accommodation and is considering moving to a regional town. We also note that KM indicated at the hearing on 11 March 2021 that it may be possible to modify DN's NDIS package to include paying for petrol if DN purchases a car. If the administrator considers purchasing a car for DN, the trust manager should discuss modification of the NDIS package with KM to include petrol and potentially other necessary expenses to run a car.
When should the administration order be reviewed?
The maximum period for which an administration order can be made by the Tribunal is five years. DN has a long standing mental illness which has at times deteriorated to the point of hospitalisation. DN denies that she has a diagnosis of schizophrenia and opposes the medication prescribed for her treatment. These factors suggest that the administration order should be made for the maximum period. However, on balance, we consider that the administration order should be reviewed within 12 months. This is because the medical evidence indicates that DN's disability is 'fluctuating'[27] and the occupational therapy assessment indicates that DN would benefit from, and could be supported to develop, financial management strategies, which may provide a less restrictive alternative to the appointment of a plenary administrator in the future.
Conclusion
[27] Exhibit 1 page 8 (Dr PR) and page 14 (Dr MH).
For these reasons, the administration order made on 14 May 2020 and amended on 17 September 2020 should be confirmed for a period of 12 months. As there is no other person suitable or willing to be appointed as DN's administrator, the Public Trustee needs to be appointed.
We therefore make the following declaration and orders.
The Tribunal declares that the represented person DN is:
(a)unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all of her estate; and
(b)in need of an administrator of her estate.
The Tribunal orders:
1.The administration order dated 14 May 2020 and amended on 17 September 2020 is confirmed.
2.The Public Trustee of 553 Hay Street, Perth, Western Australia is appointed plenary administrator of the represented person's estate with all of the powers and duties conferred by the Guardianship and Administration Act 1990 (WA).
3.The administrator is authorised to expend up to a total amount of $500 per annum on gifts on behalf of the represented person.
4.The Public Trustee shall on 15 January and 15 July each year send the represented person a statement setting out the transactions, disbursements and fees for the period and the statement of the balance of the accounts of the represented person as of that date.
5.The administration order is to be reviewed by 10 March 2022.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
JUDGE D R PARRY, DEPUTY PRESIDENT
19 MARCH 2021
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