EK - [2017] WASAT 22 | CaseChat AU

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION: EK [2017] WASAT 22

MEMBER: MS F CHILD (MEMBER)

HEARD: 15 NOVEMBER AND 8 DECEMBER 2016

DELIVERED : 5 JANUARY 2017

PUBLISHED : 30 JANUARY 2017

FILE NO/S: GAA 3498 of 2016

MATTER :EK
Represented Person

Catchwords:

Guardianship and administration - Application by mother of represented person for review of guardianship orders - Represented person with acquired brain injury and psychiatric condition - History of aggressive and assaultive behaviour - Proposal for joint appointment of parents as guardians - Wishes of represented person that his parents be guardians - Tribunal not satisfied joint appointment of parents workable because of history of conflict between them or in best interests of represented person due to his fragile mental state - Reappointment of father as guardian to make treatment decisions and the Public Advocate with remaining functions

Legislation:

Guardianship and Administration Act 1990 (WA), s 43(1)(b), s 43(1)(c), s 44, s 86, s 87, s 11, Div 3, Pt 5
Criminal Law (Mentally Impaired Accused) Act 1998 (WA)

Result:

Guardianship appointments confirmed

Summary of Tribunal's decision:

On review of an application by his mother of the orders made appointing guardians for a young man with a longstanding acquired brain injury and a psychiatric condition, the Tribunal was satisfied that he remained a person for whom a guardianship order could be made and that he needed orders. The Tribunal accepted the evidence of his treating psychiatrist that the young man was a suicide risk and represented a significant risk to the safety of others.
The Tribunal found that the represented person was unable to make decisions about a range of personal matters and lacked insight into his behaviour and his need for supervision. Decisions about the payment for a level of services, with which the parents did not agree, were made by the trustee of the represented person's court trust pursuant to its authority as trustee. Although the parents proposed themselves for joint appointment as guardians and this was the expressed wish of the represented person, the Tribunal was not satisfied such an appointment was in the best interests of the represented person due to the parents own unresolved conflicts.
The Tribunal found the mother not suitable for appointment as guardian.
The father was reappointment limited guardian to make treatment decisions for the represented person. The Public Advocate was reappointed as limited guardian for the remaining functions which would otherwise be exercised by a plenary guardian with a minor amendment to the orders.
The Tribunal found that because of the represented person's longstanding acquired brain injury and the fragility of his mental state and his need for stability, together with the unresolved conflicts between the parents, that the orders should be made for the longest period possible being five years.

Category: B

Representation:

Counsel:

Represented Person : N/A

Solicitors:

Represented Person : N/A

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

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

The application

On 19 September 2016, MH (the mother of the represented person) filed an application pursuant to s 86 of the Guardianship and Administration Act 1990 (WA) (GA Act) for review of guardianship orders dated 27 March 2013 made for her son EK (the represented person).
Those orders provide that the Public Advocate is appointed plenary guardian of the represented person and the father of the represented person is appointed limited guardian to make treatment decisions on behalf of the represented person.
In her application for review, MH proposes that she be appointed the plenary guardian of the represented person. The application is described as urgent because MH says in her application 'the contact plan with the represented person and herself is 'highly restrictive and continues to cause [the represented person] considerable distress and significant suicidal intent'.
On 14 November 2016, MH sent an email to the Tribunal proposing the joint appointment of herself, together with the father of the represented person as joint guardians, in substitution of the Public Advocate's appointment. A further email received from MH was titled 'Memorandum of Understanding' and was signed by both parents.
The review application was first heard on 15 November 2016 and the hearing adjourned to enable MH to respond in writing to a report filed by the delegated guardian of the Public Advocate in which a series of allegations about MH's conduct were made. The allegations, if true, went to her suitability for appointment as guardian of the represented person. Arrangements were also made for the attendance by telephone of Dr S, the treating psychiatrist of the represented person, to respond to questions of MH arising from his report filed with the Tribunal.
The hearing of the application was concluded on 8 December 2016 and the decision of the Tribunal was reserved.
The represented person did not attend either hearing. However, the Tribunal is satisfied that he received personal service of the notice of hearing and indicated to his father and others that he did not wish to attend the hearing. He sent a letter to the Tribunal which was handed up by MH.
These written reasons are the reasons for the decision of the Tribunal on the application filed. In written decisions of the Tribunal made pursuant to the GA Act, all identifying information about the represented person is removed.

Principles to be observed

In all proceedings before the Tribunal under the GA Act the Tribunal must observe the following principles:
•the primary concern of the Tribunal must be the best interests of the represented person or the person for whom the application is made;
•every person is presumed to be capable of looking after his own health and safety and making reasonable judgments relating to his person;
•a guardianship order may not be made where there is an alternative means of meeting the represented person's needs that is less restrictive of his freedom of decision and action;
•where an order is made, it must be in terms that impose the least restrictions on the person's freedom of decision and action; and
•the Tribunal must seek to ascertain as far as possible the views and wishes of the represented person.

History of orders

On 28 October 2010, the father of the represented person was appointed plenary administrator of the estate of the represented person and his plenary guardian. Those orders were set for review by 28 October 2015.
Applications for review of those orders, filed in August 2012 by MH, were withdrawn in October 2012.
In December 2012, MH again sought review of the orders. Leave was granted and in January 2013, the father was appointed plenary administrator and a trustee company was appointed limited administrator to deal with decisions about superannuation following settlement of a personal injuries claim of the represented person.
In March 2013, the guardianship order was revoked and the following orders substituted:
•The Public Advocate is appointed plenary guardian of the represented person with all the powers and duties conferred by the act save and except for treatment decisions concerning the represented person.
•[(Name suppressed) the father] is appointed limited guardian with the function to make treatment decisions for the represented person.
The orders were set for review by 27 March 2018.
In April 2013, the administration order appointing the father as administrator was revoked and the trustee company was appointed plenary administrator of the estate with review of the order by 18 April 2018.

Background

A review of the Tribunal's file reveals that the represented person suffered a brain injury in a motor vehicle accident as a child. He received a significant payment in compensation for his injuries. The compensation was paid into trust and is managed by a trustee company. That company was appointed the plenary administrator of his estate in 2013.
The represented person has been charged with criminal offences including assaults and has previously been hospitalised at psychiatric hospitals following his arrest. Following an admission to hospital, he was discharged to MH's care despite the stated request of his father, who at that time was his guardian, that he not be discharged. MH says following the represented person's discharge, she acted as his paid carer at the family home for a period of six months.
The represented person was again charged with assaults in 2013 and was arrested and again hospitalised. In respect of these charges the represented person was assessed as 'not fit to plead' by his treating psychiatrist. The Public Advocate's delegated guardian (guardian) reports that there was concern that due to this assessment, the represented person may be subject to an indefinite custody order under the Criminal Law (Mentally Impaired Accused) Act 1996 (WA). The Tribunal is told that following his discharge from hospital, the represented person was subject to a very high level of supervision in the community and a decision was made that the charges would not proceed in January 2015.
At the present time, the represented person lives in a home purchased for him with trust funds and continues to be supervised 24 hours per day by support staff paid for by the trustee. The support staff are in fact security guards who monitor him in the house and accompany the represented person whenever he leaves his home.
The guardian reports that contact arrangements have been made to limit MH's contact with the represented person to personal contact for one hour per week in a public place and monitored telephone calls. The contact with the father is not restricted.

Evidence and material before the Tribunal

In addition to the application, correspondence and submissions filed by MH referred to above, the Tribunal also received:
i)a copy of a letter from the guardian addressed to MH entitled 'Review of contact plan' dated 2 September 2014;
ii)email correspondence regarding the contact plan;
iii)an email from MH to the guardian dated 31 August 2016;
iv)the 'Memorandum of Understanding' between the parents dated 14 November 2016;
v)security logs provided by the Trustee and completed by support staff caring for the represented person;
vi)reports from Dr S dated 12 October 2016;
vii)reports from Mr AW, case manager dated 17 October 2016;
viii)report of the guardian dated 10 November 2016;
ix)statement of the Trustee company as to the trust assets under management and 12 month expenditure;
x)reports submitted by MH from her general practitioner Dr B dated 30 November 2016 and her psychiatrist Dr V dated 2 December 2016;
xi)a letter addressed to MH from solicitors acting on instructions of the father dated 15 August 2016; and
xii)a letter dated December 2016 from the represented person complaining about the guardian and seeking an apology.
In the course of the hearings, the Tribunal also heard from MH, the father, the guardian, Dr S, Mr AW, representatives of the Trustee company and the appointed administrator.

What the Tribunal must decide on review

Before appointing a guardian, or confirming a guardianship order on review, the Tribunal must be satisfied that the person for whom the order is sought is:
1)incapable of looking after his own health and safety;
2)unable to make reasonable judgments in respect of matters relating to his person; or
3)is in need of oversight, care or control in the interests of his own health and safety or for the protection of others.
(s 43(1)(b) of the GA Act)
The Tribunal must also be satisfied that the person is in need of a guardian (s 43(1)(c) of the GA Act).
If the Tribunal decides that a guardian is needed it must then determine who is suitable for appointment and the scope and terms of the orders to be made.
In considering who may be appointed guardian the Tribunal must have regard to the criteria set out in s 44 of the Act which provides:
(1)A guardian (including a joint guardian) shall be an individual of or over the age of 18 years who has consented to act and who in the opinion of the State Administrative Tribunal
(a)will act in the best interests of the person in respect of whom the application is made;
(b)is not in a position where his interests conflict or may conflict with the interests of that person; and
(c)is otherwise suitable to act as the guardian of that person.
(2)For the purposes of subsection (1)(c) the State Administrative Tribunal shall take into account as far as is possible
(a)the desirability of preserving existing relationships within the family of the person in respect of whom the application is made;
(b)the compatibility of the proposed appointee with that person and with the administrator (if any) of that person's estate;
(c)the wishes of the person in respect of whom the application is made; and
(d)whether the proposed appointee will be able to perform the functions vested in him.
(3)Where a proposed appointee is a relative of the person in respect of whom the application is made, he shall not by virtue only of that fact be taken to be in a position where his interests conflict or may conflict with those of that person.
(4)The fact that a person is the administrator of the estate of a person does not disqualify him from being appointed as guardian of that person.
(5)Except where he is appointed to act jointly with another person or other persons, the State Administrative Tribunal shall not appoint the Public Advocate as a guardian unless there is no other person who is suitable and willing to act.

Is the represented person a person for whom orders may be made?

In the standard medical report form requested from Dr S dated 12 October 2016, Dr S refers to the represented person having a diagnosis of 'dementia and disinhibition and aggression following serious head injury'.
Dr S gives the opinion that the represented person is not capable of personal decisionmaking. In his expanded report also of 12 October 2016, Dr S states:
I am afraid the form does not cover the subtleties and perhaps severity of [the represented person's] handicap. He had a very serious head injury which has led to a wide variety of disabilities. I think that a mental illness was probably added to these and the whole picture has led to a very fragile degree of irritability and very poor judgement with respect to all the various functions leading to guardianship.
In his evidence to the Tribunal, the father of the represented person, who is also a psychiatrist, reports that the represented person's exact psychiatric diagnosis was uncertain. He said there had been a history of violent behaviour from the represented person and that in the past, the represented person had been psychotic and that his mental state, if not caused by, had been exacerbated by, the use of cannabis (T:19; 15.11.16).
The father said the represented person collected artefacts and that 'now and again he tries to buy weapons or drugs related paraphernalia' (T:19; 15.11.16). The father said he was 'concerned about drug and weaponrelated paraphernalia, given that he has had a history of at least cannabis abuse, and he claims also methamphetamine in the past. It is well recognised that he has the propensity to develope an acute psychosis when he is exposed to cannabis' (T:19; 15.11.16).
The father reports that he had been assaulted by the represented person and that the police had been involved. He said that in the past, after using cannabis, the represented person had attacked the front door of a neighbour's home with an axe which resulted in the police being called and the represented person being arrested and later treated in a psychiatric hospital rather than entering the mainstream prison (T:20; 15.11.16).
Both parents expressed concern about the cost of the level of supervision of the represented person and asked whether this level of expenditure was sustainable in the longer term.
In the first hearing, both parents indicated that they considered that the level of supervision may be able to be reduced from the current level as the represented person was more stable. For example, MH did not support the represented person attending his school reunion with security guards. She indicated that she did not consider that it was necessary at that point in time as the represented person was 'particularly stable' (T:11; 15.11.16). The father said in the first hearing that the represented person did not continue with some community-based activities because of the requirement that he be supervised by carers. The father said:
… my view it is that when he is well, and he is currently quite well, he doesn't need supervision. The problem is that he can get unpredictably unwell and at that time it is been demonstrated in the past that he has posed a danger to others. It's a very, very vexed question. I would like very much to see a reduction in the number of carers that he has. One, because I don't think having more than one serves a useful purpose. And secondly, it erodes his funds that are held in the trust. But, on the other hand if something should go wrong that can be a problem. Well, he has been aggressive towards me when it things have gone wrong. And I have been punched by him and it hurts, a lot.
(T:20; 15.11.16)
The father also stated that the represented person
… is physically large and very strong. He has an interest in martial arts. He has been obsessively doing weights for a number of months. He very proudly tells me he can now bench-press 170 kilograms. … And the problem with this is that in relation to the carers, most of the time he doesn't need three.
But there was for a while when he needed to have four. The carers that he has now, he has a pretty good relationship with, but they're also big men who have an interest in bodybuilding. The problem is that when things fall apart with [the represented person], he can become extremely aggressive and violent. And very, very difficult to constrain. …
(T 18; 15.11.16)
The father acknowledged the need for supervision of the represented person. He stated:
… I would expect that the rationale for him needing to be supervised by carers in those situations [attending a pottery class] is one of community safety. And the risk that is very small but nevertheless is a risk to other members.
(T:20; 15.11.16)
Mr AW reports that the risk of physical violence from the represented person is 'real'. He reports that the daily reports maintained by support staff reflect that there can be threats, anger or aggression by the represented person multiple times per day.
Mr AW also notes that the represented person can make threats of suicide or self harm. Both parents acknowledged that the represented person is a continuing suicide risk; the father stating that the represented person had attempted on several occasions to hang himself which required the intervention of the support staff (T:27; 15.11.16).
Mr AW reports that various strategies have been developed to 'pacify' the represented person and this includes the use of medications such as Diazepam and Seroquel.
In his evidence at the second hearing, Dr S said that there was a 'continuing risk' from the represented person: He stated:
… it's fairly clear to anybody what the risk is, that he has a combination of serious illnesses which lead to a considerable risk of violence. …
Dr S considered that this risk was 'significant' and went on to state 'how easily [the represented person's] moods are set off into violence' and that the represented person needed 'continuous careful supervision' (T:16; 08.12.16).

In the second hearing, the father clarified his position in relation to the risk of violence from the represented person and agreed with the opinion of Dr S.
Based on the report and evidence of Dr S, regarding the represented person's inability to make decisions about his personal health care, living situation and about services, the Tribunal is satisfied that the represented person is unable to look after his own health and safety and unable to make reasonable judgments about his person.
Based on the evidence of the risk of self harm and Dr S's and Mr AW's evidence in respect of the risk to others, the Tribunal is satisfied that the represented person is in need of oversight, care and control in the interests of his own health and safety and for the protection of others.
The Tribunal is satisfied that the presumption that the represented person is capable of making reasonable judgments in matters relating to his person, has been set aside on the evidence and finds that the represented person is a person for whom a guardian may be appointed.

Is the represented person in need of a guardian?

Although the parents of the represented person assert that the represented person is more stable, that he is compliant with his medication and has developed some insight into his situation, neither seeks the revocation of the guardianship orders.
Both Mr AW and the reported comments of Dr S indicate that their views are that the represented person has very limited insight into his need for supervision.
Dr S's opinion, which the father and mother do not challenge, is that the represented person is not able to consent to treatment. His father has previously been appointed his guardian to make treatment decisions. Although it is said he is 'compliant' with his treatment, the evidence of Mr AW and Dr S is preferred, in that the represented person lacks understanding and insight into his need for treatment and medication.
Although the parents now report they agree about treatment, there has been in the past, disagreement about the appropriateness of the discharge of the represented person from hospital when the represented person had been discharged to MH's care despite the father's 'explicit instructions' that this not happen. This occurred when the father was the lawfully appointed guardian (T:19; 15.11.16). It appears also that MH has in the past, according to the material filed by the guardian, challenged medications prescribed for the represented person by the treating practitioners.
Either parent could notionally be a consent giver for medical treatment pursuant to s 110ZD of the GA Act which could operate as a less restrictive alternative to the appointment of a guardian for this purpose.
The agreement between the parents to act cooperatively in respect of decisions for the represented person, as noted in the Memorandum of Understanding signed by them in November 2016, is a recent agreement following a lengthy period in which both agree, and has been identified by others as a period of conflict between them. This conflict appears to have continued even in the months prior to the hearing despite the Memorandum of Understanding.
Given what Dr S has reported as to the fragile stability achieved by the represented person, it would not be in the best interests of the represented person for there to be any ambiguity or conflict as to who should make treatment decisions for him. The Tribunal is satisfied that the less restrictive option is not suitable and there remains a need for the formal appointment of a guardian for treatment decisions for the represented person.
In respect of the decisions regarding contact, the guardian said that MH was in conflict with most of the interested parties and the restrictive contact arrangements had been in place because MH had demonstrated that she had not always acted in the represented person's best interests. The guardian said MH lacked insight into what was appropriate to give to her adult child who has suffered a severe brain injury and has severe episodes of aggression. The guardian said that independent objective professionals raised concerns about MH's behaviour (T:42; 08.12.16). These persons included the staff at the hospital and the security staff who reported in the security logs, the deterioration in the represented person's behaviour when he has telephone or personal contact with MH.
The guardian said the she believed that MH exacerbated the represented person's behaviours. The guardian indicated that MH did not always provide accurate information to the represented person about what was said by others, or did not speak to him about matters which were in his best interests. The guardian said that the represented person is 'very quick to aggression and he can become very, very distressed after his conversations or his visits with [MH]' (T:45; 08.12.16). The guardian said this was why she was cautious about increasing contact.
Although MH said some of the allegations made were not communicated to her before the first hearing, the guardian confirmed that MH had been advised in writing of specific issues of concern in relation to her contact with the represented person. That correspondence is before the Tribunal, provided by MH. The Tribunal is satisfied that MH had prior notice of the allegations made despite her denial of this.
The guardian also relates that there was concern that service providers would withdraw services, as appears to have occurred in the past, because they found it too difficult to work with MH.
In respect of contact, the guardian also states that the represented person had told her he did not want to have contact with his aunt, LW and the guardian had written to LW in those terms. However LW had attended the coffee shop where MH and the represented person were having a contact visit on two occasions.
The father said that LW had used the opportunity to ask the represented person to contact his trust manager to ask that trust funds be used to buy a beach house which was part of a deceased estate which was the subject of litigation.
The father stated that he believed MH had facilitated the visits by LW to the represented person on MH's contact visits (T:48; 08.12.16). MH denied this but stated that the represented person was 'well aware of the probate issues' (T:48; 08.12.16). She said the represented person's contact with LW 'highlighted [the represented person's] capacity to make his own decisions' as he had 'of his own volition' made contact with LW and that LW and the represented person had thought 'it would be nice that we all catch up' (T:4647; 08.12.16).
The father denied speaking to the represented person about the issues at all as he said it was not appropriate (T:48; 08.12.16). Where the evidence of MH and the father is in conflict on the point, the Tribunal prefers the evidence of the father.
The trust manager confirmed that the represented person had called the Trustee on a number of occasions around that time to request that his trust funds be used to purchase the beach house (T:47; 08.12.16). The security logs record calls to the trust manager being observed in which the represented person is reported to have been abusive, swearing and aggressive during the call and following it.
In respect of the functions exercised by the Public Advocate, the report of the guardian sets out a range of matters which require decisionmaking for the represented person including accommodation, with whom he resides, services, contact, restraint, employment, education and training and legal matters.
The representatives of the administrator and the Trustee managing the court trust support the need for a guardian and the confirmation of the current orders. There is a clear need, in the context of the historical conflict between the parents, the need for certainty on the part of the Trustee (and the administrator) as to the person to whom personal matters may be referred on behalf of the represented person.
The Tribunal concludes from all the material before it, that the represented person remains in need of a guardian and there are no less restrictive means by which his needs may be met.

Wishes of the represented person

The wishes of the represented person conveyed by his parents, by the guardian and Mr AW, include that he wants his parents be his guardians. The represented person does not agree with some decisions of the guardian. He does not want to have the level of supervision and monitoring currently provided or to have support workers in his home. He is reported to want more and unsupervised contact with MH and for MH to be his carer. Some of these wishes can be seen in his letter of 7 December 2016.
Although the represented person did not attend the hearing, the Tribunal is satisfied that his wishes have been ascertained.

Who should be appointed as guardian

MH, Dr S, and the guardian all support the appointment of the father to make treatment decisions on the represented person's behalf.
In respect of the functions now exercised by the Public Advocate, the proposal is that the parents be jointly appointed to exercise these functions.
As noted above, MH has filed on behalf of the parents a 'Memorandum of Understanding' which acknowledges the requirements of the GA Act that 'as joint guardians they will act unanimously in the performance of their functions'. The Memorandum of Understanding sets out their agreement to 'enact the highest possible levels of communication, information sharing and consultative processes'.
It is asserted that 'many benefits to [the represented person] which will flow from this collaboration, most notably the re-establishment of supportive family relationships and the anticipated fiscal benefits to [the represented person's] trust account'. This is understood to be a reference to the reduction in the expenditure of funds in the employment of security guards proposed by the parents and the engagement of MH as a carer of the represented person, which MH proposes to be unpaid.
In the hearing, the father stated that he had been approached by MH regarding the proposal for a joint appointment and said that he thought it was appropriate that this be tested by the Tribunal (T:21; 15.11.16).
The father said there was no question that there had been conflict in the past between the parents but said he accepted MH's statement that she wished to see a more collaborative approach to the care of the represented person. He stated:
… certainly conflict between [MH] and I does no good at all to [the represented person]. He's very sensitive to the conflict. And it's one of the issues that does set him off, causes a deterioration in his mental health and his behaviour and conduct.
(T:22; 15.11.16)
The father also stated that:
… exercising my responsibility as medical guardian is more symbolic than anything else. It would only really arise as an issue if [the represented person] were to have been readmitted to hospital, the question about consenting to treatment when he is in hospital. …
(T:25; 15.11.16)
The father said he supported the current psychiatric treatment of the represented person.
The father said he had not seen security logs in the past. He explained, 'I don't really think it's appropriate for me to be involved with that sort of communication, at least on a day-to-day basis' (T:29; 15.11.16).
He explained the reason for this was:
It's very difficult to keep the roles of father and medical guardian separate. And being involved in those sorts of matters, I think, would contaminate the picture even further. There are lots of people who can discharge other responsibilities for [the represented person] but there's only one person who can be his father. …
(T:30; 15.11.16)
Following his review of the security logs provided by the Tribunal to both parents in the adjournment, the father stated:
… I was gratified to see they were quite comprehensive and regularly updated and certainly informed me greatly about the day to day happenings with [the represented person]. In the past - as I've said, I've tried to be more a father than anything else with [the represented person] and I haven't been told everything that's happening on a day to day basis. It really underlined to me just how difficult it is to manage [the represented person's] aggressiveness and I must say I was bit distressed to see that.
(T:25; 08.12.16)
The father acknowledged that the daytoday management of services may contaminate his role as a father, was an argument against his appointment as guardian. He stated that 'It's a factor that needs to be taken in into account. It needs to be balanced against other issues' (T:30; 15.11.16).
The father went on to state:
Which is one reason why OPA were appointed as guardians … because I no longer wanted to be [the represented person's] guardian and administrator. It caused too much angst between [the represented person] and myself, and myself and [MH]. We were at times at crosspurposes. And the conflicts that [MH] and I had rubbed off on to [the represented person] and caused deterioration in his behaviour[.]
(T:30; 15.11.16)
MH agreed with this (T:30; 15.11.16).
In her evidence in the first hearing, MH said that she had raised concerns about the level of security for the represented person and had been 'referred back' to the father . She said she had discussed it with the father in November 2015 but had not discussed it with him since. When asked about communication with the father, she stated that 'We haven't got to that point but I believe that we can' (T:12; 15.11.16). MH said she did not regularly discuss issues with the father. She said that there had not been regular communication because 'It hasn't been appropriate' (T:13; 15.11.16).
MH acknowledged that there might potentially be a conflict between her proposed role as carer for the represented person and that of guardian. She explained 'which is why I've applied for joint guardianship because these matters can be discussed in advance with [the father]' (T:17; 15.11.16). MH denied continuing conflict between them.
In respect of allegations made about MH's conduct contained in the report of the guardian, MH said she had, on legal advice, decided to give a global denial but had not made a written statement addressing the allegations. Because the allegations went to the suitability of MH's appointment as guardian, these matters were put to her in the hearing.
The following paragraph from the Public Advocate's report was put to Dr S:
At a meeting at [Hospital] on 29 May 2013, [Dr S] advised the guardian that the Emergency Department staff were so concerned regarding [MH's] behaviours towards [the represented person] that they seriously considered placing [MH] under the Mental Health Act. [Dr S] described [MH] 'spooning' the represented person on the Emergency Department bed.
(T:13; 08.12.16)
MH denied the allegation. MH said that she had been asked to leave the department by staff but had sat on the bed and gave the represented person 'a cuddle' at the represented person's request (T:18; 08.12.16).
It was put by MH to Dr S, that he was overseas at the time of the admission. He agreed this was possible.
In his evidence, Dr S said he recalled the statement attributed to him and said 'I can't say I had firsthand evidence but that information was passed to me within the hospital'. He confirmed that the allegation that MH was 'spooning' the represented person had been passed to him by hospital staff (T:13; 08.12.16).
In respect of the allegation that MH has in the past provided violent and sexually explicit DVD's to the represented person, MH agreed that she had given the DVD's listed to the represented person, at his request, but she said she had not been given guidelines in relation to appropriate content (T:4; 08.12.16).
MH agreed that she had provided a pipe and hookah to the represented person but that he had collected poppy seeds which he smoked from his grandparents' property. She denied that the hookah was a smoking implement. She did not agree with the father's opinion that the represented person was obsessed with marijuana (T5: 08.12.16).
As to the allegations that MH had provided drugs to the represented person, she denied this. MH said that her former partner had provided marijuana to the represented person while he was in her care, but that she did not agree with this. In respect of the allegation made by the represented person that he had smoked marijuana while in her care on Christmas Day 2015, MH denied this and said the represented person may not have been reliable in relation to this information.
The father stated he did not believe that MH had ever encouraged the represented person to consume illicit substances but that a former partner of hers had supplied cannabis but he did not believe that MH had any part to play in this (T:22; 15.11.16).
In the Tribunal's view, MH appears to minimise concerns expressed by others about drug use of the represented person saying that there was 'an absolute fear that everything is connected to drugs' (T:12; 08.12.16). To this extent she may not appreciate the seriousness of the risks to the represented person (and others) if he has access to marijuana. However, the Tribunal accepts the contention of the father and finds that it is more likely than not that MH has not encouraged him to use or has not directly supplied him with illicit drugs.
MH questions the need for the level of staffing and the 'integrity' of the service providing staff to the represented person.
MH stated that she was 'stunned' about the level of money expended. She did not accept the need to employ two security guards as had been explained by the trust manager as a requirement of the service provider from a risk management perspective (T:27; 08.12.16). MH stated that the service providers had a vested interest to employ two staff and believed there was a role for herself to play with a consequent reduction in (employed) staff. (T:30; 08.12.16).
MH said that the represented person had been more stable since the guardianship orders were made rather than there being an 'escalation in serious aggression' reported in the letter she submitted from her general practitioner, Dr B.
As Dr B had not, according to him, seen the represented person since January 2014, the Tribunal finds that the information contained in his report must have come from MH despite her denials of this.
AW, the case manager, said that he thought it was necessary to have two staff employed to supervise the represented person. He said efforts were being made to develop strategies for deescalating and managing the behaviours of the represented person.
Following AW's report that the represented person's personal hygiene and care for his home were poor, MH challenged this and said he was always well presented when she saw him. She suggested to AW that the represented person could benefit from her influence in the care of his property. AW stated that the problem he saw with this was the conflictual relationships involved (between the parents) which he said 'could just make the situation worse' (T:36; 08.12.16).
Both parents were not unreasonably concerned about the financial sustainability of the current care arrangements given the cost of employing two guards to manage the behaviours of the represented person. The expenditure reported by the Trustee indicates that $891,118 was spent on security and care for the represented person and a further $75,583 on case management services in the 12 month period. The submission from the Trustee and the oral evidence of the trust manager refers to an expected reduction in expenditure in the next 12 months in line with the reduction from three to two employed staff.
It is understood that the reduction can only continue if the relative stability in the represented person's behaviour described by Dr S and the case manager can be achieved and maintained.
The case manager indicated that the goal in the longterm was a reduction to one security guard but he did not see that happening in the near future (T:32; 08.12.16).

The trust manager also referred to the roll out of the NDIS and the possible implications this might have for clients, including the represented person.
The parents' concern about the sustainability of the expenditure to provide for the management of the represented person's risk to himself and others is understandable, given his age and his longterm complex needs. However, their stated proposals for a reduction in security staff were not well developed as neither parent was well informed about the daytoday management of the risks (prior to the hearings), having both relied, it seems, on the assessment of the represented person of his own stability and not actively seeking information from the case manager, guardian or trust manager.
In respect of the expenditure of trust funds, it was implied in the application, and in the submissions, that if the parents were appointed the guardians of the represented person with functions to determine services, and if a reduction in services was approved by the guardians, it would necessarily mean that the Trustee would reduce the number of security guards. This is an incorrect assumption.
Although the Trustee company is appointed the administrator under the GA Act to enable decisions to be made regarding investment of trust funds into superannuation, it is understood that the management of the funds by the Trustee (including advances from the trust fund for the payment of carer/guard services) is as Trustee. The authority of the Trustee in respect of the trust arises from the court trust made in favour of the Trustee when the represented person's personal injuries claim was settled.
Decisions of the Trustee in respect of the administration of the trust must be taken by them and cannot be delegated to others. In this way, although the Trustee may seek the view and be informed by the guardians as to the appropriate level of security to be employed or other personal matters, the final decision must be an exercise of the Trustee's discretion. In rare cases a trustee may seek the direction of the Court in respect of the administration of a trust.
Both parents say that although there has been conflict in the past, both are now willing and able to work cooperatively in the best interests of the represented person.
Their proposal for the joint appointment of the parents is not supported by the guardian or the case manager. The treating psychiatrist referred to ongoing conflict between the parents as did the guardian and the case manager.
The trust manager on behalf of the administrator supports the confirmation of the existing orders.
At the final hearing, the guardian submitted a letter written by the father's solicitors to MH dated 15 August 2016, in which MH is informed that if she attends the father's consulting rooms again the police will be called and a complaint made of trespass. The letter also states that 'in the event of any future abusive or intimidatory behaviour directed by you towards our client or his wife' and 'that consideration will be given to seeking a restraining order'.
In an email addressed to the guardian dated 31 August 2016 from MH, MH states that:
The incident referred to by [the father] [and subsequent legal letter] is a vexacious [sic] act against me: it has had a negative impact on my reputation and credibility.
MH goes on to say:
A Family Court summons for [the father] is pending due to his noncompliance with a Family Court Property Settlement Order.
In the course of the hearing, MH stated that there was limited communication between the parents as it was 'not appropriate'.
The father while saying he believed the mother was committed to cooperation about their son accused her of facilitating a meeting between the represented person with the represented person's aunt, the father's sister, from whom the father is estranged and with whom he is apparently embroiled in litigation about their mother's deceased estate.
Although there may have been an agreement to work together as joint guardians, as stated in the Memorandum of Understanding and during the hearing by both parents, the parents admit they have been in longterm conflict and have demonstrated in the hearing process, that there are continuing areas of conflict.
There is, in the Tribunal's view, no real working relationship between the parents. Given the longstanding history of conflict and the current range of stressors on their relationship, in the Tribunal's view, the durability of any agreement made to work jointly and unanimously for the represented person is remote.
Both parents say that they believe that they can do so, despite past conflict. However, in the Tribunal's view, it is not in the best interests of the represented person that they try.
The treating psychiatrist describes a very fragile stability achieved in the management of the represented person's mental state and behaviours. Both parents agree that conflict between them 'rubs off' on the represented person and causes a deterioration in his behaviours. In this context, it would not be appropriate or in the represented person's best interests, to experiment with a change in the guardianship arrangements when the ability of the proposed guardians to work effectively together has not been demonstrated.
Even if the Tribunal was not satisfied that there is significant unresolved conflict between MH and the father which would in all likelihood prevent them working as joint guardians, their decisionmaking styles appear to be incompatible. MH wishes to be involved in a daytoday way such that she proposes herself as a carer of the represented person. (This is a conflict with any appointment of MH as guardian and that conflict would not be able to be managed by a joint appointment with the father). In contrast, the father prefers a more handsoff approach such that even as medical guardian, he states his involvement only occurs when the represented person is admitted to hospital and he describes his role as 'symbolic'.
The father's concern about closer involvement is the risk of contamination of the parentchild relationship with the represented person which cannot be provided by any other person. The incompatibility in the parents' decisionmaking styles is a further reason that a joint appointment is not in the best interests of the represented person.
In respect of the suitability of MH and the proposal of the Public Advocate for the continued appointment of the Pubic Advocate as guardian of the represented person (other than for treatment decisions), the Tribunal accepts the submission of the guardian that MH has not in the past demonstrated appropriate decisionmaking in the best interests of the represented person.
The Tribunal finds that MH is not able to perform the functions of guardian which involve working closely and cooperatively with a number of parties (s 44(2)(d) of the GA Act).
MH does not demonstrate an ability to work cooperatively with the currently appointed guardians or with service providers. She is reported by the guardian to undermine the efforts of those working directly with the represented person and that contention appears to be supported by her own statement which challenges the 'integrity' of the service providers. MH's statements are unguarded and illjudged in this regard, as it appears she has very limited direct knowledge of their work.
MH rejects the assessments of others that her contact with the represented person can cause deterioration in his behaviour.
MH does not have, in the Tribunal's view, a realistic assessment of the fragility of the represented person's mental state and overemphasises what she considers to be his capacity and his wishes. This is the case even when she herself acknowledged that he may not be a reliable historian. This is demonstrated in the provision of DVD's to the represented person, with sexually explicit and violent content and facilitating, as is contended by the father and accepted by the Tribunal, his contact with an aunt whom the represented person had previously indicated he did not wish to see.
It is likely MH's purpose in this was to achieve the purchase of the 'family' beach house with the represented person's trust funds which, in the context of her criticism of the Trustee's expenditure on service provision which is of direct benefit to the represented person, is inexplicable. MH's appointment as guardian is not supported by the appointed administrator and the Tribunal finds that MH's appointment would not be compatible with the appointment of the existing administrator (s 44(2)(b) of the GA Act).
The Tribunal also finds that MH, instead of reassuring the represented person, involves him in and speaks to him about the legal matters in which the father is said to be involved, which no doubt increases the represented person's anxiety about such matters and reinforces the sense of conflict between his parents.
Although it is said that a family appointment is the wish of the represented person (s 44(2)(c) of the GA Act) and it would be desirable to maintain existing relationships or re-establish family relationships (s 44(2)(a) of the GA Act), the Tribunal finds that such an appointment may cause a further deterioration in already strained relationships and would not be in his best interests: (s 44(2)(a) of the GA Act).
In respect of the allegations of inappropriate contact (spooning the represented person in the Emergency Department), the Tribunal finds that this conduct was reported to Dr S and was of concern to the mental health professionals treating the represented person at the time. Although MH believes she was acting appropriately and supporting the represented person during his hospital admission, she does not acknowledge the age of the represented person, his reported disinhibition and his fragile mental state in the way she provides that support. MH's apparent inability to take the advice or to seek guidance from the health professionals working with the represented person is of concern.
MH's lack of insight is demonstrated in the reports submitted by the health professionals treating her. As these doctors have no direct contact with the represented person, their submissions cannot be given much weight as medical opinion about him but must be seen through the filter of MH's understanding of the situation of the represented person and her role in it. From the material before the Tribunal, this understanding is not shared by any of the other parties involved directly with the represented person.
For the reasons given, despite it being the wish of the represented person that his parents be appointed his joint guardians, the Tribunal finds that such an order would not be in his best interests.
Further, the Tribunal finds, for the reasons given, that MH is not suitable for appointment as guardian.

Length of the order

The represented person has a longstanding disability. It seems likely there will be a need for substitute decisionmaking in the longer term.
In light of the fragility of the represented person's mental state as described by the psychiatrist and the continuing risk of violence and of self harm, there is a need for certainty and stability for him and those working directly with him. Uncertainty may lead to deterioration in his behaviour which might also lead to a need for an increase in employed security staff which is adverse to his longterm financial interests.
The longstanding, and as the Tribunal has found, unresolved conflicts between the parents of the represented person, means that they have demonstrated that they cannot work together either informally or as joint guardians and cannot be decisionmakers for the authorities currently exercised by the Public Advocate.
The guardianship orders should be made for the maximum period possible under the GA Act which is five years in an effort to provide some certainty for all concerned.
As the mother is not a guardian of the represented person she needs leave to bring the application for review pursuant to s 87 of the GA Act.

Orders

The Tribunal declares that the represented person, [EK];
(a)is incapable of looking after his own health and safety;
(b)is unable to make reasonable judgments in respect of matters relating to his person;
(c)is in need of oversight, care or control in the interests of his own health and safety or for the protection of others; and
(d)is in need of a guardian,

and the Tribunal orders that:
The guardianship order dated 27 March 2013 is amended so that it now reads:
1.The Public Advocate of David Malcolm Justice Centre, Level 23, 28 Barrack Street, Perth, Western Australia be appointed limited guardian of the represented person with all the powers and duties of a plenary guardian save for the authority given to [the father].
2.[The father, name and address deleted] is appointed limited guardian of the represented person with the following function:
(a)Subject to Division 3 of Part 5 of the Guardianship and Administration Act 1990, to make treatment decisions for the represented person.

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 5 January 2022.

I certify that this and the preceding [136] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS F CHILD, MEMBER