EC
[2021] WASAT 74
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: EC [2021] WASAT 74
MEMBER: MS F CHILD, MEMBER
HEARD: 11 FEBRUARY 2021 AND 12 MARCH 2021
DELIVERED : 19 MAY 2021
FILE NO/S: GAA 4801 of 2020
EC
Represented Person
CAHS
Applicant
Catchwords:
Guardianship and Administration - Intellectual disability - Refusal of services - Pregnancy - Risk of domestic violence - No family support - Need for a guardian to consent to treatment and services and to act as next friend - No need for an administrator as less restrictive alternatives for management of estate
Legislation:
Guardianship and Administration Act 1990 (WA), s 3, s 4, s 43, s 43(1)(b), s 45(2), s 64(1), s 64(1)(a), s 110ZD, Pt 5, Div 3
Result:
Guardian appointed
Application for the appointment of an administrator dismissed
Category: B
Representation:
Counsel:
| Represented Person | : | N/A |
| Applicant | : | N/A |
Solicitors:
| Represented Person | : | N/A |
| Applicant | : | State Solicitor's Office |
Case(s) referred to in decision(s):
FS [2007] WASAT 202
FY [2019] WASAT 118
NCK [2004] WAGAB 6
PR [2021] WASAT 32
REASONS FOR DECISION OF THE TRIBUNAL:
The Child and Adolescent Health Service (CAHS) applied to the Tribunal for the orders to be made under the Guardianship and Administration Act 1990 (WA) (GA Act) for the appointment of a guardian for and an administrator of the estate of EC.
The application was heard on 11 February and 12 March 2021 and the decision reserved.
Orders were issued on 30 March 2021. These are the reasons for the decisions made.
In decisions of the Tribunal published under the GA Act all information which might identify the person concerned is removed.
Background
EC has been a patient of the CAHS since coming to Australia as a child refugee some years ago. EC is now 19 years old and due to be discharged from CAHS because of her age. She is the sole parent of her daughter, M who is nearly five years old.
EC experienced severe trauma both before and after arriving in Australia. She is estranged from her family of origin and has had little contact with them having left home with the assistance of the Department of Communities Child Protection (DCP) and other services in 2017.
EC lives independently with her daughter who regularly attends childcare as EC is in full time education in intensive English. EC describes herself as happy and progressing well at school.
EC is due to have a baby in July 2021. She has been subject of two known incidents of domestic violence from the father of the baby.
EC requires the assistance of an interpreter in most interactions with English speakers.
Principles to be observed
In all proceedings with the Tribunal brought under the GA Act the Tribunal must observe principles set out in s 4 of the GA Act which provide that the primary concern of the Tribunal is the best interests of EC.
The principles also provide that EC is presumed to be capable of looking after her own health and safety, making reasonable judgments in respect of matters relating to her person, managing her own affairs, and making reasonable judgments in respect of matters relating to her estate, until the contrary is proved to the satisfaction of the Tribunal.
The principles say that orders should not be made unless they are needed. If the needs of EC can be met by less restrictive means then orders should not be made. If an order is made for EC it should be in the least restrictive terms possible. A plenary guardianship order cannot be made unless the Tribunal is satisfied that a limited order is not sufficient to meet her needs.
Finally, the principles require that in considering any matter relating to EC, the Tribunal should seek to ascertain her wishes.
Is EC a person for whom a guardianship and administration order may be made?
To appoint an administrator of EC's estate the Tribunal must be satisfied that she is unable, by reason of a mental disability, to make reasonable judgments about all or any part of her estate and she is in need of an administrator of her estate.[1] A mental disability is defined in s 3 of the GA Act to include an intellectual disability.
[1] Section 64(1) of the GA Act.
To appoint a guardian for EC the Tribunal must be satisfied that she is incapable of looking after her own health and safety, unable to make reasonable judgments in respect of matters relating to her person or is in need of oversight, care or control in the interests of her own health and safety or for the protection of others and is in need of a guardian.[2]
Evidence and material before the Tribunal
[2] Section 43(1)(b) of the GA Act.
At the hearings the Tribunal heard from the following persons: EC, through interpreters, Dr RM, a consultant paediatrician, HM, a social worker and Dr RL, a clinical psychologist from CAHS, Dr AN, a neuropsychologist and MN, a speech pathologist both from Neurosciences, LM, an advocate from a refugee trauma service and KM, an advocate from a community based multicultural service (the advocates) and an investigator from the Office of the Public Advocate (investigator).
At the second hearing CAHS was represented by the State Solicitor's Office and oral submissions were made.
Written material was filed including:
•the application filed on 7 December 2020 together with a clinical Neuropsychology and Speech Pathology Assessment report dated 28 August 2020 by Dr AN and MN;
•a submission from EC dated 2 February 2021 typewritten on her behalf;
•a medical report from Dr RM dated 11 January 2021;
•the standard doctor's guide provided by Dr AN dated 24 December 2020;
•the standard doctor's guide provided by Dr RL dated 12 January 2020 (understood to be a typographical error and likely 2021);
•a report and submission from HM, social worker dated 1 February 2021;
•a report and submission from KM dated 2 February 2021;
•a report and submission from LM dated 3 February 2021;
•a letter from the programme coordinator of the Intensive English Centre received 4 February 2021;
•a letter from an interpreter used by EC received 9 February 2021; and
•an email from the Ethnic Disability Advocacy Centre (EDAC) dated 2 February 2021.
The clinical neuropsychology and speech pathology assessment report dated 28 August 2020 written by Dr AN and Dr MN, sets out the background of violence and trauma experienced by EC. This occurred as a child refugee overseas and since arriving in Australia, due to significant alcohol misuse and domestic violence in her family of origin.
The report notes EC is living with her daughter, who was conceived as a result of a sexual assault when EC was aged 13. EC has completed two years intensive English where it is reported she has made limited progress. She is now enrolled at another campus where she is undertaking English classes. EC is in receipt of Centrelink benefits.
EC considers herself independent for all aspects of daily living, manages her own finances and tries to budget appropriately for herself and her daughter's daily needs. She wants to work towards getting her driver's licence.
EC is reported to have misunderstood many questions during the assessment and rarely requested clarification or repetition even when it was clear she did not understand. Many of her responses were reported not to address the questions posed to her.
The assessment reports:
[EC's] overall non-verbal intellectual functioning (assessed using the Universal Non-verbal Intelligence Test 2nd Ed) was Extremely Low …
In accordance with this she demonstrated global cognitive impairment, with the majority of scores assessing her attention, working memory, processing speed, visuospatial skills, and executive functions falling within the Extremely Low to Very Low range.
[EC] did however, demonstrate a relative strength in verbal memory. Her learning of a word list benefitted with repetition (Low Average to Average), and she was subsequently able to retrieve a good amount of what she had previously encoded (Very Low to Average). Visual memory was impacted by visuospatial and executive difficulties (Extremely Low to Very Low).
With regard to [EC]'s academic abilities, she demonstrated limited skills (Extremely Low) and could only consistently read two letter CV or VC words (eg, sky, shop), and relied heavily on guessing words rather than attempting to sound out the phonemes. [EC]'s numeracy skills were limited to simple addition of single members, and no more than two numbers at a time. She asked for support to identify if the symbol on testing items was addition or subtraction. [EC] was unable to perform addition with double digits or simple multiplication.
It is noted again that [EC] had difficulty with her comprehension of instructions delivered in [own language]. The interpreter's opinion was that [EC]'s grasp of [own language] was significantly below that expected of someone her age. Standardised measures of [EC]'s language could not be formally calculated due to difficulties in [own language], English, and limitations in directly translating stimulus items. Subjectively, on a single word (receptive) vocabulary assessment, [EC] smuggled significantly in identify a matching picture to the word when delivered in English (as a single word) and [own language] (as a single word, when there was a direct translation). When items were delivered using more descriptive language, [EC] did improve slightly in her ability to match pictures to the verbal stimulus, however, required multiple repetitions of the descriptors or further clarification from the clinician and interpreter. [EC's] expressive vocabulary in English could not formally be measured as she struggled to achieve even basal items.
A series of hypothetical everyday scenarios were posed to [EC]. She required significant prompting and scaffolding to provide further information. While she was generally able to respond to safety-related questions quite well, her responses regarding complex tasks requiring multi-step solutions were indicative of shallow reasoning and poor problem-solving. Unfortunately there were no suitable informants to provide a detailed and reliable account of [EC]'s adaptive functioning, given that she lives by herself and has had limited contact with her family for more than two years. Nonetheless, to gain some corroborative information of her functioning, the Adaptive Behavior Assessment System 3rd Edition (Adult Informant Report) was completed by Ms C (Clinical Nurse from CAHS), Ms KM (Settlement Support Worker), and [EC]'s teacher. Not unexpectedly, given that many questions required direct and regular observations of [EC]'s functioning across a wide range of everyday tasks, there were a large number of responses flagged as 'guesses' or estimates. As such, the results were considered to be an inaccurate reflection of her current functioning. Notably these were inconsistent with observation result from neuropsychology and speech pathology assessments.
As noted above, the comprehensive results obtained were considered valid and reliable, and collectively, [EC] was found to have significant intellectual, cognitive and communication impairments. As prenatal alcohol exposure could not be confirmed for the purposes of a FASD diagnosis, this diagnosis cannot be addressed here. It is acknowledged that trauma, childhood adversity, and the lack of learning opportunities may have had an impact on her intellect/cognition. There also remains the possibility that she sustained a brain injury during her sexual assault.
However, the nature and extent of the deficits seen on current assessment are felt to be above and beyond what could reasonable be expected of these factors. While [EC] has demonstrated the ability to adequately complete structured, routine, and straightforward everyday tasks, this has been in the context of her receiving significant support and oversight from PCH, CAHS and her school. The extent of her cognitive impairments is such that she would have significant challenges with adjusting to and coping with novel and complex tasks. Therefore, despite the lack of information with regard to [EC]'s developmental history, the global nature of her deficits is considered most consistent with DSM-V diagnostic criteria for a Mild Intellectual Disability.
EC is reported to have reduced functional capacity in the areas of communication, learning and self-management. Her ability to learn and recall new skills and information is reportedly significantly impacted. The report notes results of her language assessments were strongly suggestive of severe communication difficulties that will need ongoing support. Her executive functions were found to be substantially below age expected levels, such that she demonstrated difficulties with abstract reasoning, planning/organisation, mental flexibility, and problemsolving.
The report goes on to state that NDIS support would be critical to provide EC with appropriate supports to ensure her (and her daughter's) overall well-being and to build her functional capacity:
'She would benefit from increased opportunities for social/community connectivity, support with her Activities] of D[aily] L[iving]s (e.g. transport, meals, well-being checks) as well as occupational therapy for assistance in developing independence and learning new skills'.
Other recommendations include further education regarding monetary planning and budgeting, involvement with the People First program for education and counselling, including protective behaviours.
The report states that EC would meet manifest eligibility criteria for a Disability Support Pension.
The standard Tribunal report provided by Dr AN dated 24 December 2020 confirms the findings that EC meets the diagnostic criteria for intellectual disability.
Dr AN's opinion is that EC is capable of decision-making for simple financial matters but incapable of complex financial decisions and legal decisions.
Dr AN reports she is unsure whether EC can capably make judgments about medical treatment, accommodation and services. In respect of medical treatment, Dr AN says that if EC is required to understand complex concepts, reason through multiple choices and consider consequences of complex decisions, then EC is likely to have significant challenges.
Dr AN's report notes that specific assessment of EC's capacity was not undertaken in respect of accommodation decision-making. However the opinion is given that EC would require substantial assistance if there was a plan to move (from her present home) as significant support was required from services when she moved from her family home into her current accommodation.
Dr AN notes that one main recommendation from the assessment was for EC to apply for NDIS. According to Dr AN, EC has limited insight to her cognitive and functional deficits and the extent to which she could understand the need for NDIS when this was conveyed was unclear but she would require substantial support in applying.
According to Dr AN, EC would not require a guardian if she was accepting of services. However, she asserts that should there be a fluctuating compliance, most likely secondary to EC's poor understanding and insight, then she may require a substitute decisionmaker.
In respect of an enduring power of attorney (EPA) and an enduring power of guardianship (EPG) (while noting assessments of capacity to make specific decisions were not undertaken) Dr AN's opinion is that EC is highly unlikely to have capacity to appoint an EPA.
In her report Dr RM states that EC has been assessed by the specialist interdisciplinary team and confirms the assessment of intellectual disability and gives her opinion that EC's condition is a static one.
In Dr RM's opinion EC is capable of purchasing simple everyday items, but requires assistance to set up direct payments for utility and other costs and assistance in reading mail.
According to Dr RM's report EC has been subject to financial predation when she purchased a car in another person's name with her savings. Dr RM's opinion is that EC is incapable of more complex financial decisions or legal matters and that her literacy and numeracy deficits are more than a lack of opportunity to learn but rather indicative of her abilities. Dr RM says that EC's hopes are beyond her abilities; an example is her desire to get a driver's licence.
Dr RM's opinion is that EC is incapable of decision-making in the spheres of medical treatment and accommodation and not always capable of decisions regarding services. The report goes on to say that EC has declined assistance from NDIS despite numerous explanations of the implications of her neurocognitive testing.
Dr RM asserts that it is very difficult for EC to understand the benefits and nature of the services needed and that she has adopted the views expressed by her advocates that she does not have an intellectual disability.
Dr RM's opinion is that EC is not capable of giving an EPA and EPG or an advance health directive.
Dr RM proposes that a plenary guardianship order is made for EC.
The standard Tribunal report dated 12 January 2020 by Dr RL clinical psychologist is consistent with the reports of Dr RM and Dr AN that EC has an intellectual disability which is described as a static condition. The opinion of Dr RL is that EC is capable of simple financial matters but incapable in all other spheres of decision-making.
Both Dr RM and HM report that EC has experienced violent assaults. In August 2020 she suffered a neck injury which required hospital treatment and 26 stitches when a brick was thrown at a car in which she was sitting with her daughter.[3] In November 2020 an assault by strangulation by a person later identified as A, EC's boyfriend and the father of her unborn child. A is the person in whose name a car purchased with EC's funds has been registered.
[3] It is acknowledged in the material that this was not intended to hit EC but was directed at another occupant of the car.
Dr RM says that following the attempted strangulation EC sought police assistance in an effort to recover the car from A but not with a restraining order. She had not told the health professionals about these incidents. Subsequently, a hospital social worker had assisted with changing the locks on EC's property.
EC does not refer to the incidents reported in her written submission but confirmed that they had occurred in her evidence in the hearing.
Conflicting accounts of EC's responses to incidents which have occurred are given by the CAHS and the advocates. The advocates say that there are cultural factors at play and even given these cultural norms that EC did appropriately attempt to protect herself and M and sought police assistance at the time.
On the other hand CAHS says that A slept at EC's home on the night of the strangulation attempt and that EC sought police involvement only in an effort to recover the car.
In relation to this incident, EC said A had misinterpreted the communication between her and her uncle and had become jealous.[4] She said A had not intended to strangle or kill her but 'to hold her there'.[5]
[4] ts 26, 11 February 2021.
[5] ts 25, 11 February 2021.
She went on to say:
I'm saying that there are so many relationships that fight and argue. Sometimes things don't work out the way one wants or the other wants, so there are fights and arguments (indistinct) he didn't do - hold me at my neck to hurt me.[6]
[6] ts 29, 11 February 2021.
In the first hearing EC said that there had been an earlier assault on her by A two years earlier when he had become angry and 'shoved' and slapped her in the face'[7] when she refused to give him $10. EC said:
EC through INTERPRETER:
So in our culture, not in this culture, in our culture, if a woman is wrong, of course, we will have to – wrong to her husband or partner or boyfriend, to a man, then, of course, they have to be punished.
MEMBER:
Were you wrong to refuse him the $10.
EC through INTERPRETER:
Yes, I think it is my fault because I did wrong. He asked me for $10, and I didn't give it to him.[8]
[7] ts 27, 11 February 2021.
[8] ts 29, 11 February 2021.
EC explained that after the assault she had gone to the police with a caseworker. When asked about this:
MEMBER:
Okay. So was your boyfriend charged with the assault
EC through INTERPRETER:
Yes.
MEMBER:
What happened to him
EC through INTERPRETER:
Yes, he just continued to drive his car.[9]
[9] ts 28, 11 February 2021.
Later, on further questioning, EC said that she and A had separated after this event but it seems they later reconciled.
HM says that the non-fatal strangulation suffered by EC is alarming as victims of non-fatal strangulation are seven times more likely to die of homicide. EC is said to be at risk because she lacks insight into the domestic violence as being socially unacceptable and dangerous to her and her daughter.[10]
[10] ts 21, 12 March 2021.
In the hearing HM said that the time line of conception of EC's pregnancy coincided with this incident and that the risk of family and domestic violence is heightened by pregnancy, by birth and a newborn. There was a referral of these incidents by CAHS to DCP who had opened a Child Safety team case and would continue to be involved until EC's baby was born. HM said that she had had confirmation of this by email on the day of the second hearing.[11]
[11] ts 24, 12 March 2021.
HM reports that on 21 December 2020 EC attended a hospital appointment with Dr RM and was obviously physically sick and in pain. HM says that EC had presented to another hospital on 17 December with abdominal pain and had been diagnosed with urinary tract infection (UTI) and as being eight weeks pregnant. EC is said not to have volunteered this information to Dr RM and it was only learnt through accessing medical records.
HM reports that in the course of the interview on 21 December 2020 that EC gave inconsistent responses to the question regarding whether she had been prescribed antibiotics and pregnancy vitamins. With prompting, HM said that EC found a prescription for medication in her bag and was assisted at the hospital to obtain the antibiotics for the UTI and pregnancy medication. In the hearing HM said that EC had not understood the purpose of the prescription.[12]
[12] ts 21, 12 March 2021.
In response EC says that she was very busy and did not have time to have the prescription filled. This is supported by her advocates who argue that EC is a sole parent on very limited income with no transport and prioritised M's needs over her own[13]. EC appeared to believe that CAHS raised concern about this issue because of the cost of supplying medication to her.[14]
[13] ts 34, 12 March 2021.
[14] ts 22 – 23, 11 March 2021.
In her report HM describes efforts to provide referrals to a number of services to assist EC through the NDIS process. In the hearing HM said this was an attempt to address EC's needs in a less restrictive approach. She said referrals were made to a number of agencies including for specialist support coordination to act as an interface with the different agencies working with EC. HM says all the services were voluntary and as EC denies she has an intellectual disability she did not want to engage with these services and this led to the application to the Tribunal.[15]
[15] ts 22, 12 March 2021.
In a submission dated 2 February 2021, KM reports that she has been EC's caseworker since February 2019 and has qualification in adolescent health in addition to extensive training and practical experience working with young people from diverse and marginalised backgrounds.
KM states that she was very surprised to learn that EC has been diagnosed with an intellectual disability as she had not observed any behaviours that had suggested this to her. KM says that the challenges experienced by EC in the classroom (for example in completing multistep tasks) are consistent with what is expected from younger people who have no previous experience in a classroom/educational setting. She believes the support required and the progress shown by EC is similar to other young people with comparable English skills and educational backgrounds.
KM reports that her contact with EC has been extensive both at school and at EC's home. She considers that as a parent EC is more knowledgeable and more independent than many of her peers in her financial planning and in accessing health care. EC is described as proactive in asking for help when needed and seeking advice when facing unfamiliar situations.
KM states that she acted as a support person to challenge billing from a childcare centre and says EC was able to advocate for herself. EC is reported to pay bills as required and according to KM demonstrates budgeting skills and forward planning. An example given is that EC approached the school to pay her school fees in a manageable way. EC sought KN's assistance to challenge bank fees and subsequently closed the bank account which KM reports she did independently. KM states that she has made regular home visits to EC's home and witnessed the care provided to M by EC and is positive about that care.
KM described EC's decision to use her funds to purchase a car in A's name, as 'having a logic to it' as EC did not have a driver's licence herself. A, is said by KM 'to have understood the car would be transferred to [EC] at a late date when she obtained her driver's licence'.
The strangulation incident is confirmed and EC is said to have appropriately disclosed this to the advocates and the incident of her neck injury to her support workers.
KM states that she and the other advocate (LM) were not contacted or consulted by CAHS until the decision had been made to make the application to the Tribunal. She questions whether there has been 'due diligence' in 'exploring all alternative provisions of support'. She says she assumes the application was brought because of 'an incomplete picture and context of EC's situation .... without observing or taking in to account the strengths and capabilities that [EC] demonstrates in her everyday life'.
She asserts that the assessments were from a 'clearly clinical context, and it is unlikely EC was able to demonstrate her strengths, autonomy and independence in a setting where she is not only dependent on an interpreter, who may or may not speak precisely the same dialect, but also viewed with the perspective of people who see her for a minimal amount of time in a clinical setting'.
KM submits that guardianship is an excessive response to a legitimate concern for EC's welfare, and it is 'a disrespect to [EC] not to support her to explore all other options'. She advocates that the 'preferred pathway would be that welfare concerns identified by the Refugee Health team should be raised with EC, and that she and other support workers partner with EC to workshop potential supports and strategies that EC may choose to engage with'.
A report from the program coordinator of the Intensive English Centre reports that EC has good social skills, interacts comfortably and readily forms friendships, communicates positively and respectfully arrives punctually the majority of the time, is always well dressed, clean and presentable and completes assigned work and asks for assistance when required. EC is reported to find many aspects of learning literacy and numeracy skills difficult but this is said not to be uncommon for students who had limited schooling background in their country of origin, and/or have experienced trauma. In EC's case it is noted she had no schooling prior to coming to Australia.
The EDAC report refers to contact with EC to progress a referral to NDIS which EC declined and that they have closed their file. EC is reported to have said she understood the risk of DCP intervention but did not elaborate. She is reported to have said she wanted to do the right thing by her daughter and only associate with good people.
LM is a social worker with extensive experience working with refugees and is employed in a specialist service delivering services to refugees who have experienced torture and trauma. EC has been a client of the service since July 2017.
LM says EC's home is well-kept and orderly. EC is described as skilled at expressing her thoughts in a clear and concise manner and is described as adept at assertive communication. LM asserts that EC shows a sound 'theory of mind' and problem-solving.
LM reports that EC has been able to budget for larger purchases and is up to date with her rent. The majority of EC's bills are paid through Centrepay.
LM says that the purchase of a car in her boyfriend's name was done so by EC in order to 'protect herself and was not done under duress'.[16]
[16] LM submission dated 25 January 2021.
EC is reported to limit contact with her family of origin as she believes it is 'not always safe'.
LM says EC does not want her step-grandmother to be contacted about the application to the Tribunal as she as concerned that it will further complicate already conflictual family relationships.
In relation to the incident where EC's boyfriend 'put his hands around her neck', EC is said to have told A to leave, locked herself in a bedroom and called police. LM states that EC then promptly ended her relationship with A and that EC's actions demonstrate strength safety consciousness and resilience. EC is reported to have since reconciled with A following an apology and a request from him that they reunite as a couple.
In relation to the incident of the brick being thrown which resulted in EC's neck injury LM asserts that this was not a sign of EC's vulnerability but was a terrible unexpected event.
Submission of the Public Advocate
The investigator reports that EC is totally opposed to orders and is angry that the CAHS have made the application and has since cut off all ties with the team, currently refusing to meet with them at the hospital or at her home.
The investigator does not challenge the existing assessment that EC has an intellectual disability but expresses concern that the assessment has led CAHS to argue the need for plenary guardianship orders to be made for EC.
The investigator submits that there is an absence of accurate information regarding EC's adaptive functioning as she lives alone with her daughter. The investigator submits a detailed and reliable account of EC's day-to-day functioning is vital when making an assessment of the need for orders.
The investigator submits there are many individuals with an intellectual disability who function in the community without the need for a substitute decision-maker. She argues that the imposition of such an arrangement on individuals who function independently has the potential to be disabling, to undermine self-confidence and agency.
The investigator reports that KM indicates that the services supporting EC's efforts to act independently have an open, honest relationship with EC which allows her to raise concerns and challenge traditional beliefs rooted in her culture. By contrast, the 'protective' approach of the CAHS has resulted in her ceasing her relationship with them. EC is reported to feel that CAHS have been intrusive, undermining and overbearing.
The investigator reports that EC said the application and the discussions flowing from it were causing her huge distress. She said:
It's really worrying me and it's going to make me sick ... I may not be keeping up with school and I know I look very young, but I'm actually very mature, more mature than many of the students here who have studied for years.
The investigator submits that a key premise of the application is that EC currently receives a level of support that will fall away over time, but confirms the submissions of the advocates that although the CAHS team are required to transition EC to adult medical care, the other services will be available to her for some time.
The investigator drew on her extensive experience working with persons with intellectual disability who had obtained a driver's licence to challenge the view of CAHS that EC did not have the cognitive ability to obtain her licence.
The investigator submits that there is no demonstrated need for guardianship or administration orders and it is preferable that EC be able to continue to use the less restrictive (and more acceptable to EC) alternative of community based supports. It is argued that the advocates will help her engage with other services and supports on her own terms when she feels she is ready.
The investigator also argued that any appointed guardian could not make a represented person engage with services where that person steadfastly refused to do so and if the person rejected the premise of the need for such services.[17]
Does EC have a mental disability?
[17] ts 53, 12 March 2021.
All of the professionals who have provided evidence or submissions in this proceeding have had significant contact with EC, some over many years. I accept are all experts or have qualifications and extensive experience in their respective fields.
In their evidence and submissions to the Tribunal EC, KM and LM argue that EC's difficulties arise from her history of trauma, limited education, language issues and the demands on her as a young sole parent. They say that the neuropsychological and communication assessment conducted is unreliable as it is culturally inappropriate and does not take account of EC's limited education and language issues which may arise from possible inaccurate interpretation of EC's communications. Due to these inadequacies they assert the finding of an intellectual disability is not correct and this diagnosis does not reflect EC's functioning in the 'real world'.
Dr AN's evidence is that the team have extensive experience in assessing persons from culturally and linguistically diverse backgrounds and those with limited education. MN says that non-language based tests are used in the assessments. They assert that their findings of an intellectual disability and severe communication impairment are valid.
I accept the submission of the investigator that there is a lack of direct collateral information about EC's adaptive functioning. This issue was identified in the neuropsychological assessment report which also identifies the conflict between the informant reports of KM and a teacher as to EC's functioning as inconsistent with their own assessment findings.
The evidence of the health professionals and the advocates also conflicts in respect of some aspects of EC's functioning which they have observed. For example in relation to her communication the speech pathologist MN reports that EC's communication is very impaired but LM describes EC as skilled at expressing her thoughts. There is conflict too regarding EC's comprehension in her own language between interpreters used and in the impact of the use of different interpreters on EC's communication. This was demonstrated in the hearing. When asked each of the interpreters confirmed that interpretation given was accurate in the hearing.
There are differing opinions as to whether EC has an intellectual and communication disability between the medical/psychological and speech pathology evidence and EC and her advocates.
Regarding the challenge to the diagnosis of an intellectual and communication disability, I accept that Dr AN and MN have the relevant specialised knowledge, training and experience to assess cognitive and communication impairments of EC and to give their expert opinions as to the existence of these conditions. Dr RM also, has particular relevant qualifications and long-term experience and I accept is also an expert.
The reports from Dr RM, Dr RL, Dr AN and MN, who have all had direct contact with EC, are consistent that EC has an intellectual disability. In addition to the testing undertaken they all have had direct interactions with her.[18]
[18] For example as referred to by Dr AN, ts 17, 12 March 2021.
Given their expertise I accept the assessments of EC are valid and reliable and that EC does have an intellectual disability that has been identified through the assessments and has been objectively measured.[19]
[19] FY [2019] WASAT 118 at [27].
There is no other expert evidence before the Tribunal. I am satisfied and I find based on this evidence that EC has a mild intellectual disability which is a recognised category of mental disability in the GA Act.[20]
EC's wishes
[20] Section 3 of the GA Act.
EC's wishes have been expressed in her prepared submission, directly in her appearances at the hearings, through her advocates and to the Public Advocate's investigator.
EC does not accept the assessment that she has an intellectual disability and I am in no doubt that she opposes both the guardianship and administration orders and is distressed by the diagnosis of intellectual disability and the suggestion she needs orders. She has expressed fears of the stigma which she believes is associated with an intellectual disability and with the proceeding before the Tribunal.
She says that she wishes to live in peace without interference.
In the face of such opposition and the likely distress caused to her, orders are only justified if the need for orders warrants such intrusion on EC.
Administration
Is EC unable by reason of her intellectual disability to make reasonable judgments about her estate
To appoint an administrator of EC's estate requires a finding that EC is unable by reason of her mental disability to make reasonable judgments about all or any part of her estate.[21]
[21] Section 64(1)(a) of the GA Act.
As identified in FS [2007] WASAT 202 and recently confirmed in FY:[22]
The application of s 64 involves both subjective and objective tests. The Tribunal is required to consider whether the person in respect of whom the application is made has the ability to make 'reasonable judgments about their estate. That constitutes a subjective test, because the person's ability falls to be assessed in relation to their actual estate. At the same time, the Tribunal must also consider whether the person has the ability to engage in the particular mental process which is required in order to make that judgment, and that test is an objective one. The Tribunal is thus required to consider the extent to which a person with a mental disability is able to engage in the cognitive process that culminates in an ability to make a 'reasonable judgment' (which will vary from person to person and may include a lack of any observed ability), and then to set that ability against the requirements of the person's individual estate and circumstances.
[22] FY [2019] WASAT 118 [52].
The objective assessment includes the evidence of EC's working memory impairment and limited numeracy skills which, I find, must impact on her ability to make financial decisions. In a subjective sense CAHS says that EC was unable to set up direct debit arrangements herself and is reliant on others for assistance with her finances and with other matters. EC and her advocates say EC manages her financial affairs herself with some support.
The evidence of KM and EM is that EC has Centrepay for all but one of her regular payments, is able to budget for day-to-day needs and to save for larger purchases. EC seeks assistance with correspondence she does not understand and asks for assistance or support with a range of matters.
In determining the question of whether EC is unable by reason of her intellectual disability of making reasonable decisions about her estate, I have considered the evidence of the neuropsychological/ communication assessment, the opinions of the other professionals and the evidence of EC and the lay evidence of those working with her dayto-day; her advocates and teachers.
Although as noted there are conflicts about particular matters, all the evidence points to EC having capability to undertake some day-to-day matters but difficulty and requirement for assistance with more complex tasks or multiple step tasks as described in her teacher's report.
While acknowledging the views of the advocates (and others) of their direct experience of EC's functioning in the community, their evidence is that EC has had considerable ongoing assistance to navigate a number of matters and according to both EC and her advocates she seeks assistance, sometimes daily when she does not understand.[23]
[23] ts 28, 12 March 2021.
This evidence is not inconsistent with Dr AN's evidence that with scaffolding and supports in place EC is able to function in a structured and routine way.[24]
[24] ts 15, 12 March 2021.
As noted in their evidence the advocates attribute EC's lack of understanding and need for support to her limited education, language issues and past trauma and not to the existence of an intellectual disability.[25]
[25] The interaction of such factors was considered in FY at [80].
There is essentially little or no conflict in the evidence that EC is reliant on others for assistance in managing some financial matters and as such is not able to manage her financial affairs independently; the conflict lies in the reasons for that dependence.
There are no doubt other factors which impact on EC's decision making including her history of trauma and language barriers however having regard to the evidence of Dr AN regarding the impact of EC's global cognitive impairment and limited numeracy skills I find that EC's need for support and assistance in the management of her financial affairs is more likely than not because of her intellectual disability.
The consistent evidence of all the health professionals is that EC is unable to make complex financial or legal decisions. Although the examples given where EC has sought and required assistance have not, in my view, all been complex matters, having accepted that EC has an intellectual disability and accepting the findings of the assessment of the impact of this on her functioning in an objective sense I am satisfied that EC in unable by reason of her intellectual disability to make reasonable judgments about part of her estate, that part being more complex decisions or matters which are outside structured routine matters.
The question for the Tribunal is not whether EC needs assistance to manage her affairs but whether she needs an administrator to provide that assistance.
EC's existing estate is a simple one being a pension income and her regular financial and household commitments. She is understood to have no major assets or liabilities. Her savings are said to have gone into the purchase of the car registered in her boyfriend A's name.
It is argued by CAHS that her decision to purchase a car and register it in the name of A (who is now known to have previously assaulted her) demonstrates the extent of EC's impaired decision making and vulnerability to financial exploitation and supports the need for an administration order.
This decision was explained by EC in her written submission as her 'choice without anyone's force.' She explains that A knew she 'wanted a car and suggested a car [as] he knew a friend who was selling. She put the car in his name because she trusts him.[26] She does not refer to the incidents of domestic violence which she acknowledged in the hearing.
[26] EC's submission dated 3 February 2021, document 28.
The advocates say the registration of the car in A's name resulted from a lack of any alternative as EC does not have a driver's licence and that she sought advice from her grandmother. Despite their close involvement it seems that EC did not seek advice from the advocates, (who appear from what has been said to have learnt of this after the event) or from any service provider who would surely have counselled against such a choice if all of the facts were known.
After the November domestic violence incident it is said EC went to the police in an effort to recover the car from A. I consider that this supports the contention that EC did not understand the consequences of the decision to register the car in A's name in the first place.
Given the dynamics of her relationship with A as EC described the previous assault on EC when she refused A money and her stated beliefs about her obligations as a woman and a girlfriend to him and her description of the choice of the car, it seems possible that the registration of the car in A's could have had elements of coercion. Further it would seem unlikely having regard to the history that A would voluntarily transfer the vehicle if and when EC obtains her driver's licence as has been suggested.[27]
[27] Submission of LM.
In any event if the assessment of Dr RM is correct that EC is unlikely to obtain a driver's licence due to her cognitive deficits she has been considerably financially disadvantaged in this transaction.
Although it is accepted that these events demonstrate EC's lack of understanding of this transaction and her potential ongoing vulnerability to financial exploitation, I do not consider that this incident itself currently supports the making of an administration order where there is no identified risk of further financial loss to EC's estate and where there is no demonstrated need for a wider order. I am satisfied that other aspects of EC's estate are apparently currently managed through a range of informal means which provide a less restrictive alternative to an administration order.
From the evidence presented, EC has suffered injuries as a result of conduct likely to be criminal offences. Any claim for criminal injuries compensation for those injuries is a complex matter which would be beyond EC to initiate or to manage. However in the present circumstances this does not require an administrator of her estate for reasons I will refer to later in these reasons.
If any claim is eventually made on EC's behalf in respect of any of the incidents where she has been the victim of a crime then if an award is made, this could be placed in trust by the Criminal Injuries Assessor.
Although I accept that a claim for a DSP is appropriate and would be in the best interests of EC (as a more secure income in her circumstances now and in the longer term). This is not sufficient on its own to warrant an administration order being made as an advocate could assist EC with that application.
Guardianship
To appoint a guardian the Tribunal must identify if any of s 43 (l)(b) of the GA Act criteria apply to EC and whether she is in need of a guardian. In this respect, if there are less restrictive alternatives which would meet EC's needs an order should not be made.
As a background to this application there has been an unfortunate breakdown in the working relationship between CAHS and the advocates working with EC. Dr RM suggests that the advocates have encouraged EC in the belief she does not have a disability and to refuse to participate in further assessments and to refuse services. The advocates say they did not encourage EC to refuse services and suggest that they should be engaged to explore service options for EC. LM says that the assessments conducted have been brief and the application made by CAHS without due diligence.
I accept that the referral to Neurosciences and the assessments conducted were appropriate and comprehensive. I also accept HM's evidence of the efforts that were made to refer EC to services as a less restrictive approach, but that EC refused referral to NDIS and the services offered, and that the application to the Tribunal followed this refusal.
It is said by Drs RL and RM that very close consideration was given by the multi-disciplinary team before making the application[28] and that it is the first application to have been made to the Tribunal by CAHS.
[28] ts 30, 12 March 2021.
The medical evidence from Dr RM is that EC lacks capacity to make treatment decisions. Dr RL agrees.
Dr AN asserts that EC would 'struggle with complex matters' relating to treatment decisions.
In relation to the delay by EC to obtain the prescribed antibiotic treatment for her UTI, I prefer the evidence of HM and Dr RM who were present when EC presented to the hospital in their assessment very unwell and therefore they had direct knowledge of this. The filling of a prescription to treat a UTI is not in fact a complex matter but I accept the contention of HM that EC was unable to understand what was required.
Dr RM's opinion of EC's lack of capacity in the area of health care decision-making does not only rely on the neuropsychological assessment but also on the direct contact the clinicians have had with EC in the clinical setting. Dr RM says that this is what triggered the initial referral for neuropsychological assessment. The assessment of EC's capacity in these interactions in a clinical setting is relevant as this is where treatment decisions are generally made.
I find that the presumption that EC is capable of making reasonable judgment about her person is rebutted by the medical and other professional evidence.
I find that EC is incapable of looking after her own health and safety, is unable to make reasonable judgments about her person and is in need of oversight and care in the interests of her own health and safety and because of the risk of domestic violence and EC's lack of appreciation of it. I find all paragraphs of s 43(1)(b) of the GA Act apply to EC and she is a person for whom a guardianship order may be made.
I consider that a guardianship order is needed and justified despite EC's opposition because of EC's vulnerability to domestic violence and because of her lack of appreciation of that risk. There is the consequent risk of DCP intervention and EC's need for support services to mitigate those risks. The consequences for EC of a lack of appropriate assistance with these matters is potentially grave and warrants the imposition of a guardianship order against her expressed wishes.
There is a separate but potentially critical issue, in light of her pregnancy, is that there is no identifiable informal substitute decisionmaker for medical treatment decisions should this be required for EC.
In considering less restrictive alternatives to the appointment of a guardian it is argued that EC has access to services. However CAHS raise concerns about the continuity and durability of the services now engaged. In contrast the advocates say that the current services engaged for EC will be available to her for as long as she needs them. This is supported by the investigator.
Relevant to the consideration of the availability of services for EC as less restrictive alternative is EC's refusal of services. As the advocates take the view that EC does not have a mental disability or impairment in her decision-making they accept her refusal of NDIS as a 'capable' decision, that is, that she has weighed up the consequences of refusal. The advocates reliance on EC's own assessment of her needs may have the effect of reducing the range of supports available to her.
I accept that EC will continue to have access to existing community based services and these services have been critical to her day-to-day functioning. I also acknowledge that EC has strong relationships with the services and in particular with the individual advocates involved. A high degree of trust in them has developed and they have supported her independence. However despite the availability of these supports as a less restrictive means of supporting EC in many aspects of her life (including management of her finances to some degree), there is, I consider a need for a guardian to be appointed in particular spheres of decision-making which cannot be met informally and I find there is no less restrictive alternative to the making of a guardianship order to meet this need.
In relation to medical treatment I find there is a need for a guardian to be appointed to make treatment decisions. I accept the contention of Dr RM that the lack of identification of EC's cognitive and communication impairment in health care settings places her at greater risk. I accept that EC's presentation could lead health care professionals who are not familiar with her to assume she is able to understand and participate capably in decisions about her treatment and care. HM and Dr RM say this is what occurred when EC presented to hospital with her neck injury and with the UTI. This is of particular relevance as EC transitions to adult health services.
EC is due to have a baby in July 2021. In normal circumstances EC may, as many women do, be faced with complex decisions in her pregnancy and delivery of her baby. Her previous pregnancy and delivery of her daughter M occurred overseas in a refugee camp when EC was aged 13 or 14. Although it is speculation, it is possible that this history may create further complexity or have implications for EC's health and the management of her current pregnancy and delivery.
Despite EC's comments in her written submission that she has family supports this is inconsistent with all other material before the Tribunal.
No one from EC's family or social network attended the hearings (other than the advocates) as EC is understood to have refused to provide contact information because of the stigma she believes is associated with diagnosis of an intellectual disability and the proceeding before the Tribunal. EC previously refused to allow the CAHS to contact her stepgrandmother and this is confirmed by LM in her submission.
In the absence of any family involvement, there is no one easily able to be identified as a nearest relative who could act as a substitute consent giver for treatment decisions for EC pursuant to s 110ZD of the GA Act.
In fact, in the absence of any involvement of her relatives, EC's boyfriend, A, might be treated as her nearest relative or in common usage her 'next of kin'. On EC's evidence, A is the perpetrator of domestic violence against her including the incident of a non-fatal strangulation which HM contends coincided with conception of EC's second pregnancy. As EC minimises the seriousness of these assaults and has reconciled with A, if a guardian was not appointed for EC, A might be identified by health professionals dealing with her and seeking a consent, as EC's nearest relative for treatment decision-making, both as her boyfriend and as the father of the baby.[29]
[29] This would not be in strict compliance with s 110ZD(3)(a)(ii) of the GA Act, as A does not live with EC.
I am satisfied that EC has no identifiable supports other than her advocates MK and LM who are paid support workers and who cannot therefore despite their supportive roles provide substitute consent for treatment decisions for EC.[30]
[30] Section 110ZD(3)(c)(ii) of the GA Act.
In relation to other needs of EC, HM asserts that EC is at continuing and greater risk of domestic violence during her pregnancy and the birth of her baby. She says that EC is more vulnerable because of her intellectual disability because domestic violence is unpredictable and EC has not demonstrated an ability to plan and respond appropriately to ensure her own and her children's safety and that there is the risk of intervention by DCP.
The advocates say that EC appropriately seeks information and assistance from them when she needs help and has allowed them to share information she has given them about incidents of domestic violence.
Despite this it seems from comments made in the hearing that the advocates may not have been fully aware or perhaps did not appreciate the significance of the earlier assault.
Although the earlier assault was apparently known to a former case worker who assisted EC to go to the police at that time it was unclear whether this had been documented and if the history was in fact known by the advocates. At least it was uncertain in the hearing which service had been involved[31] and when the advocates had become aware of the earlier incident. LM said she only learnt of it in the course of the proceeding before the Tribunal.[32] HM says that this illustrates the concern of CAHS that with the lack of a 'formal person' in place the system breaks down.[33]
[31] ts 36, 11 February 2021.
[32] ts 33, 11 February 2021.
[33] ts 34, 11 February 2021.
The assurances given in LM's submission about EC's recognition of the risks of domestic violence and her response to it are not persuasive as they are in direct conflict with EC's own statements made in the hearing about the two incidents of domestic violence. I consider EC minimised the seriousness of both and essentially said that they were her fault.
Because of the advocates' reliance on EC as the provider of information, which potentially may be incomplete they may not be fully informed of the risks to EC.
EC's care of M is described in very positive terms by everyone who has contact with her: she is described as a loving, devoted and caring mother putting M's needs above her own. However there have been two referrals to DCP regarding child safety concerns related to violence perpetrated against EC and there is an open investigation which is said to continue until EC's baby is born in July 2021.
When the DCP investigation was raised in the hearing EC said she had been told that it was because of concern about her drinking. HM said that neither of the two referrals made had referred to drinking but to the two incidents of violence of which CAHS was aware. When the issue of the DCP investigation was raised during the hearing EC reiterated that she did not want interference.
Dr RL said that since the application had been made to the Tribunal, EC has refused ongoing contact with that hospital. In one conversation EC had expressed the view that the hospital intended to harm her or her children, including injecting them and if they did so she would take them to court.[34]
[34] ts 30, 12 March 2021.
I accept CAHS contention that EC is not able to engage in a meaningful way with more complex issues, including the risk of domestic violence and the consequent risk of intervention by DCP because of her failure to appreciate or acknowledge the risk associated with domestic violence. There may be cultural reasons for EC's views about the domestic violence but 1 accept that EC's vulnerability is heightened due to her intellectual disability.
CAHS says that EC needs services to support her and referral to NDIS is appropriate and necessary but EC will not accept this. This is confirmed in the EDAC communication.
The possible need for counselling for M was raised in the material before the Tribunal (following the incident in which EC suffered a neck injury and was taken to hospital by ambulance with M sitting in the car with her). EC denied the need for this stating ' My child is like me. We are perfect'. EC said that she would rather M was 18 before she was asked any questions.[35] EC is acknowledged as a loving mother but it is possible that her appreciation of M's needs in the context of what has happened is quite limited. Because EC's advocates do not recognise her as having an intellectual disability they rely on her assessments to guide the provision of services to her and to M.[36]
[35] ts 48, 12 March 2021.
[36] The possible need for counselling was first raised by KM.
If EC's impairment in assessing and responding to the identified risks is not identified and she is not supported to engage with these matters appropriately this may heighten the risk of statutory intervention by DCP.
The consistent medical and psychological opinion given is that EC lacks capacity to make decisions about legal matters and Dr AN confirmed in her oral evidence that in her opinion EC could not instruct a lawyer.[37] Given this EC is in need of a guardian to advocate on her behalf and if necessary to respond and to instruct a lawyer as guardian ad litem should DCP take statutory action in relation to EC's children. A guardian is also needed to make decisions about services.
[37] ts 15, 12 March 2021.
The investigator argues that EC's refusal to engage with services will likely continue even with a guardian appointed with the function to consent to services on her behalf and so there is no utility in an order being made.
As held in NCK [2004] WAGAB 6 at [64] the workability or practicality of an order is not part of the statutory criteria for the making of a guardianship order.
It follows that whether a person is in need of a guardian is the ultimate touchstone in relation to which the Board must decide that the order should be made. The concept of need is not to be determined by reference to whether particular 'authoritative' decisions are required on behalf of a person, but whether there is, or may be, a need for a guardian to intervene, in a more generalised sense, in the affairs of that person: see Re Review of Guardianship and Administration Orders in respect of MM (2001) 28 SR(WA) 320; Re LGW now reported as LGW [2004] WAGAB 4 at pp 4 - 10.
This interpretation was recently adopted in PR [2021] WASAT 32 a decision of the Full Tribunal. There was a question as to whether a guardianship order should be revoked because the represented person in that case had consistently refused to cooperate in engagement of services consented to on his behalf by the guardian. Acknowledging the difficulties in relation to services the Full Tribunal said at [32]
… we are of the view that it is in PR's best interests that a guardian be appointed so that the assistance of the guardian may be given at any stage when an occasion arises for such engagement.
There may also be a need for a guardian, with legal standing to act on behalf of EC and in this sense to make 'authoritative decisions' on her behalf. There may be a need for a guardian to act as next friend to apply for a restraining order on EC's behalf. Additionally a guardian is required to consider and to determine whether a claim should be submitted on EC's behalf for criminal injuries compensation in respect of any injuries she has suffered to preserve her entitlement to CIC.
Although an administrator is usually appointed to make such claims for practical reasons, the GA Act specifically provides that a guardian may be appointed for such a purpose. Section 45(2) GA Act includes the following functions which may be conferred on a guardian.
…
(g)as the next friend of the represented person, commence, conduct or settle any legal proceedings on behalf of the represented person, except proceedings relating to the estate of the represented person;
As there is no one proposed for appointment as guardian, there is no alternative to the appointment of the Public Advocate as EC's guardian.[38]
[38] GA Act s 44(5)
In the oral submissions made for CAHS in the second hearing the appointment of a plenary guardian was not sought.
I consider that a limited order with the functions referred to above will meet the needs of EC as identified in this proceeding, that being the case I am satisfied there is no need for a plenary guardianship order.
Although EC may need substituted decision-making in the longer term, to make an order for the maximum period of five years would be additionally distressing for her. In the future, less restrictive alternatives to the guardianship order may be identified. For this reason I make the order reviewable in two years.
Orders
The Tribunal declares that the represented person EC is:
(a)incapable of looking after her own health and safety;
(b)unable to make reasonable judgments in respect of matters relating to her person;
(c)in need of oversight, care or control in the interests of her own health and safety; and
(d)in need of a guardian.
Administration
1.The administration application is dismissed.
Guardianship
2.The Public Advocate of David Malcolm Justice Centre, Level 23, 28 Barrack Street, Perth, Western Australia is appointed limited guardian with the following functions:
(a)to make treatment decisions for the represented person, subject to Division 3 of Part 5 of the Guardianship and Administration Act 1990 (WA);
(b)to determine the services to which the represented person should have access;
(c)in relation to any investigation or proposed legal proceedings under the Children and Community Services Act 2004 concerning the represented person's child or unborn child to:
(i)seek legal advice on behalf of the represented person;
(ii)bring or defend legal proceedings in the name of the represented person;
(iii)settle legal proceedings on terms the guardian considers to be in the represented person's best interests;
(iv)advocate on behalf of the represented person in relation to any investigation or in respect of any protection orders made under the Children and Community Services Act 2004, including making of any care plans;
(v)make decisions relating to protection orders made under the Children and Community Services Act 2004, including making care plans.
(d)As next friend of the represented person to bring or defend legal proceedings in the name of the represented person including to apply for a restraining order and or to initiate an application for criminal injuries compensation on her behalf.
3.The Tribunal approves delegation by the Public Advocate of her functions as guardian of the represented person to an officer or employee employed in the Office of the Public Advocate.
4.The guardianship order is to be reviewed by 30 March 2023.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS F CHILD, MEMBER
19 MAY 2021