FNE and LS
[2006] WASAT 67
•22 MARCH 2006
FNE and LS [2006] WASAT 67
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2006] WASAT 67 | |
| GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) | |||
| Case No: | GAA:783/2005 | 22 JUNE 2005 AND 12 OCTOBER 2005 | |
| Coram: | MR J MANSVELD (MEMBER) DR R CLARNETTE (SENIOR SESSIONAL MEMBER) MS H LESLIE (SENIOR SESSIONAL MEMBER) | 22/03/06 | |
| 11 | Judgment Part: | 1 of 1 | |
| Result: | 1. The Public Advocate is appointed limited guardian. 2. The Public Trustee is appointed plenary administrator. | ||
| B | |||
| PDF Version |
| Parties: | FNE LS |
Catchwords: | Guardianship and administration Person a Ward of the State Wardship able to be extended Guardian appointed to advocate for extension of Wardship |
Legislation: | Guardianship and Administration Act 1990 (WA), s 4, s 4(2), s 43 Mental Health Act 1996 (WA) |
Case References: | Nil Nil |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : HUMAN RIGHTS ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : FNE and LS [2006] WASAT 67 MEMBER : DR R CLARNETTE (SENIOR SESSIONAL MEMBER)
- MR J MANSVELD (MEMBER)
MS H LESLIE (SENIOR SESSIONAL MEMBER)
- Applicant
AND
LS
Represented Person
Catchwords:
Guardianship and administration Person a ward of the State Wardship able to be extended Guardian appointed to advocate for extension of wardship
Legislation:
Guardianship and Administration Act 1990 (WA), s 4, s 4(2), s 43
Mental Health Act 1996 (WA)
(Page 2)
Result:
1. The Public Advocate is appointed limited guardian.
2. The Public Trustee is appointed plenary administrator.
Category: B
Representation:
Counsel:
Applicant : Self-represented
Represented Person : Self-represented
Solicitors:
Applicant : Self-represented
Represented Person : Self-represented
Case(s) referred to in decision(s):
Nil
Case(s) also cited:
Nil
(Page 3)
Summary of Tribunal's decision
1 In May 2005, applications for guardianship and administration were made for LS, an 18yearold woman who is a ward of the State. The applications were made by the Department for Community Development (DCD) on the basis that the wardship was about to expire and ongoing personal and financial decisions needed to be made for LS.
2 The applications were first heard by the State Administrative Tribunal in June 2005 but were adjourned to enable further assessment to be made about the capacity of LS to make decisions in her own best interests.
3 The Tribunal was provided with that information and the applications were heard in October 2005.
4 At the hearing, the Tribunal was told that wardship for LS could be extended at the discretion of the relevant government minister. A submission was put to the Tribunal that it would be in the best interests of LS that wardship be extended because she would then have ongoing access to the range of personal and financial support of DCD. It was accepted that LS was very vulnerable and required intensive support of the type she was currently receiving from DCD. It was likely that if a guardian were appointed to make personal decisions for LS, then DCD would terminate the wardship and no equivalent service provision would be readily available.
5 The Tribunal decided that LS is a person for whom orders could be made and appointed the Public Advocate as her limited guardian to make representations to the relevant government minister that the wardship of LS be extended to age 21. The Tribunal also decided to appoint the Public Trustee as the plenary administrator for LS.
Background
6 On 16 May 2005, the Tribunal received an application for guardianship completed by FNE, a social worker at the Department for Community Development (DCD) in respect of the represented person. An application for an administration order was also received.
7 On 12 October 2005, the Tribunal (constituted of three members) made a guardianship order in respect of LS (the represented person) in favour of the Public Advocate.
(Page 4)
8 At the time of the hearing of the application by the Tribunal, the matter was attended by a degree of urgency as the represented person's status as a ward of the state was due to expire.
Evidence
9 The application included a comprehensive report that detailed the circumstances of the represented person including that the represented person and her four siblings had been placed in the care of the DCD in July 2002 following numerous instances of neglect, physical and sexual abuse by both of their parents over many years. Both parents mother and stepfather had been given custodial sentences as a result of police charges being laid and were still in custody at the time of the hearings. At the time of the application, the represented person was resident at a support facility in Western Australia. Despite being past the age of 18 years, her wardship had been extended by the Minister.
10 The DCD report detailed the following as problems for the represented person:
• High risk erratic behaviour;
• Selfharm she had previously been an involuntary patient under the Mental Health Act 1996 (WA);
• Social and emotional immaturity;
• Poor impulse control;
• Poor independent living skills;
• Posttraumatic stress disorder;
• Despite being aged 18, she has the developmental maturity of a 12yearold;
• Difficulty understanding simple instructions; and
• Inability to make simple decisions.
11 The application indicated what needed to be done for the represented person in these terms:
"After a considerable amount of time spent with [the represented person] as her social worker, my assessment is that someone is required to take on the role of guardian and
(Page 5)
- administrator. The guardian and administrator would need to have plenary powers as [the represented person]'s ability to make appropriate and rational decisions is limited."
12 The application detailed the alternatives tried to solve the represented person's problems in finding suitable longterm accommodation. The represented person had been evicted from one facility and had been unsuccessful in her application to the Disability Services Commission (DSC) for accommodation. Given her age, the applicant stated that DCD could not extend her wardship and that another support system needed to be put in place. In addition, others in her extended family were not thought to be suitable carers by DCD, one reason being that they all believed the allegations of abuse to be false.
13 A psychiatric report completed by a doctor at South Metropolitan Child and Adolescent Mental Health Service on 28 August 2003 indicated that the represented person was "developmentally immature … had presented with depressed mood, somatic symptoms of anxiety, possible auditory hallucinations, had made a suicide attempt … has been a courageous teenager who had laid open a family secret".
14 Reports from a DCD psychologist from 5 February 2004 and 30 April 2004 mentioned "an escalating pattern of suicidal behaviour" and "social and emotional immaturity is related to extreme deprivation and neglect in [the represented person]'s family of origin". A further report, dated 16 September 2004, stated that the represented person "struggles with fundamental developmental tasks".
15 An intelligence assessment report by a psychologist from the Department of Education and Training dated 9 June 2004 stated that the represented person was "functioning within the extremely low range with regard to her level of adaptive skill".
16 At a hearing held at the State Administrative Tribunal on 22 June 2005, the Office of the Public Advocate expressed the view in a written report that uptodate medical evidence was needed regarding the represented person's capacity and current diagnoses.
17 At the hearing on 22 June 2005, the application for guardianship was adjourned, pending the receipt of medical or psychological reports that attested to the represented person's capacity or lack thereof to make decisions for herself. The application for an administration order was also adjourned.
(Page 6)
18 At the hearing on 12 October 2005, the represented person was in attendance by videophone link from her support facility. The applicant gave an update of the represented person's status and informed the hearing that the represented person had been removed from the facility some weeks before because of "her struggling with being compliant and addressing her communication problems that she was having". During the twoweek period of absence from the facility, the represented person found accommodation in a woman's refuge and was very frightened and became very vulnerable. The applicant stated that "[the represented person] has a history of unconsciously sabotaging any accommodation we put her in".
19 The applicant further stated that when wardship was due to end on 19 December 2005, DCD would continue to support the represented person during the transition period to find alternative accommodation.
20 The Tribunal had received a report from a clinical psychologist at DCD on 22 September 2005. At the hearing, the psychologist was in attendance and summarised her report. The aim of the assessment, detailed in the report, was to determine the represented person's capacity to make decisions. Cognitive function was assessed using the Wechsler Adult Intelligence Scale Third Edition (WAIS III). The represented person's overall thinking and reasoning was at the third centile for her age. Her verbal comprehension skills were at the seventh centile, perceptual organisation ability at the second centile, processing speed at the tenth centile and working memory at the twelfth centile. The report stated that testing conditions were optimal as there was a therapeutic relationship between tester and subject and the represented person was in a stable environment at the time.
21 The psychological assessment also examined personality, and the profiles "highlight [the represented person]'s difficulties regulating emotions and impulsiveness, personality traits that clearly impact on an individual's decisionmaking capacity. Further, the profiles highlight additional personality traits that are reflective of poor judgement [sic] and reasoning, including [the represented person]'s tendency to behave in an unplanned and disorganised way, to experience excessive optimism, to have unrealistic goals, to experience poor selfcontrol and to follow urges. Abilities aside, the MCMI-III profile suggests that [the represented person]'s personality style places her at risk of being exploited".
(Page 7)
22 The report went on to describe how the represented person was presented with a number of scenarios and asked how she would respond. These scenarios included management of finances, accommodation, contact with family members, medication, wants and desires, beliefs and supports and plans for the future. The report stated that "in most case[s], [the represented person]'s response … presented to her demonstrated sound understanding, judgement [sic] and reasoning. However, [the represented person] received the scenarios intellectually rather than emotionally and in the context of a stable and supportive placement. Therefore, it is not unreasonable to assume that in a real life situation with the experience of emotional arousal, [the represented person]'s process of decisionmaking may not be as rational and may not reflect adequate understanding and reasoning".
23 The report summarised that "[the represented person]'s personality style places her at risk of being exploited by others. Her basic reasoning, judgement [sic] and understanding is already well below the general population's average. When this information is considered with the experience of posttraumatic stress symptoms and difficulty regulating emotions and impulses, it is not unreasonable to assume that [the represented person]'s reasoning, judgement [sic] and understanding or ability to make rational decisions will be even more deficient. Based on the above interpretations of assessment findings, in my professional opinion, [the represented person] is in need of an Administrator and Guardian".
24 The Tribunal had received a report from the represented person's general practitioner indicating that she is being treated for depression. The Tribunal also had various pieces of correspondence and reports from those running and involved in the represented person's support facility and its associated programs concerning her progress, her behaviour and her difficulties.
25 The represented person did not participate to any great extent in the hearing. She had a support worker with her but did not wish to say very much. At the point in the hearing when the question of extension of wardship was being discussed, she said that she didn't really want an extension but subsequently seemed to say that if it would improve her situation, " … then, maybe".
26 The represented person's mother participated in the hearing to a limited extent by telephone link from her place of custody.
(Page 8)
- She wished to be informed about the purpose of the hearing but otherwise had no significant comment for the Tribunal.
27 The Tribunal also had before it information that emerged during the hearing to the effect that, although unlikely, it was, in theory, possible for the represented person's wardship to be extended by the State to age 21. It was suggested that this might be a mechanism that would provide a more comprehensive system of supports to the represented person (given the resources available through DCD) which supports, subject to a transitional period, would cease to be available to the represented person if her wardship lapsed and which would not be adequately replaced, there being no equivalent comprehensive system of supports available to adults in the represented person's situation. It also appeared that because of an impending change in the law, any application to extend wardship in this needs to be progressed urgently otherwise it would cease to be an option.
28 At this point in the hearing, the applicant stated that extension of wardship would not be in the represented person's best interest, given the restrictions placed on wards and the stigma attached to being a ward over the age of 18 years. Wardship is designed for individuals under the age of 18 years.
The relevant legislation
29 The Tribunal may make a guardianship order, subject to s 4 of the Guardianship and Administration Act 1990 (WA) (GA Act), where the Tribunal is satisfied that a person in respect of whom an application for the order is made has attained the age of 18 years, is incapable of looking after his or her own health and safety, is unable to make reasonable judgments in respect of matters relating to his or her person or is in need of oversight, care or control in the interests of his or her own health and safety or for the protection of others; and is in need of a guardian: s 43.
30 So far as s 4 of the GA Act is concerned, in the performance of its functions, the Tribunal is obliged to have regard to the principles set out in s 4(2). The principles may be summarised in this way:
(a) the primary concern of the Tribunal shall be the best interests of any person for whom an application is made;
(b) every person shall be presumed to be capable in relevant respects until the contrary is proved to the satisfaction of the Tribunal;
(Page 9)
- (c) an order shall not be made if the needs of the person could, in the opinion of the Tribunal, be met by other means less restrictive of the person's freedom of decision and action;
(d) a plenary guardian shall not be appointed if the appointment of a limited guardian would be sufficient, in the opinion of the Tribunal, to meet the needs of the person in respect of whom the application is made;
(e) an order appointing a limited guardian or administrator shall be in terms that, in the opinion of the Tribunal, imposes the least restrictions possible in the circumstances on the person's freedom of decision and action;
(f) in considering any matter relating to a represented person or a person in respect of whom an application is made, the Tribunal shall, as far as possible, seek to ascertain the views and wishes of the person concerned as expressed, in whatever manner, at the time, or as gathered from the person's previous actions.
31 In this case, nothing in the principles stated in s 4 suggested to the Tribunal that it was inappropriate to appoint a guardian and administrator for the represented person.
32 At the hearing, the Public Advocate's representative spoke to his report prepared for the hearing. He submitted that the represented person was a person for whom an administration order could and should be made, probably in favour of the Public Trustee, there being no other appropriate proposed appointee. He submitted that the represented person was a person for whom a guardianship order could be made and that, in the absence of any less restrictive alternative, there was a need demonstrated for a guardian to make decisions in the areas of accommodation, contact with and access to the represented person's family members, the support and services to be provided to the represented person and her treatment and health care.
33 However, he went on to argue as to whether there was, in fact, a need for a guardian to be appointed. This question was appropriately raised, not by reference to any absence of evidence to suggest that a guardianship order was otherwise appropriate in the circumstances, but by reference to the availability of a less restrictive alternative to guardianship. The Public Advocate argued that wardship could be extended to the age of 21, by which time the represented person may have completed her present support program and have access to more accommodation options.
(Page 10)
- The Public Advocate argued that such an extension of wardship would obviate the need for a guardian to be appointed in any of the identified areas, and further, that such an extension of wardship would, in fact, provide the best quality of life for the represented person given the resources issue. He went on to argue that, apart from the present program and facility, there is no other identifiable agency that could accommodate or support the represented person. In short, the Public Advocate argued that if appointed, a guardian would have no immediate practical decision to make on behalf of the represented person because of the uncertainty of her predicament. The Public Advocate recommended that the application for guardianship be dismissed.
Findings
34 The Tribunal is satisfied on the basis of the evidence before it that the represented person is a person for whom guardianship and administration orders can be made. There is, in fact, almost no evidence to the contrary.
35 The Tribunal considered making a plenary guardianship order but takes the view that, given the realities of resources available to adults in the represented person's situation, this would produce a less than satisfactory outcome.
36 The Tribunal is satisfied that it is in the best interests of the represented person (in terms of access to services and support) that her wardship be extended if possible to age 21. The Tribunal accepts that, with the assistance of the services to which she would then be entitled, there is some prospect that the represented person's situation and her functioning and emotional and mental health will improve such that in the future no other orders will be needed.
37 To this end, the Tribunal is satisfied that, at this time, the represented person is in need of a limited guardian to act for the represented person in seeking an extension of wardship. In the view of the Tribunal, if this can be achieved, no other guardianship orders would be needed at the present time. The Tribunal has determined that a sixmonth order is sufficient for these purposes.
38 The Tribunal is satisfied that the represented person is in need of a plenary administration order and, in the circumstances, takes the view that the appointment of the Public Trustee for a period of five years is appropriate.
(Page 11)
I certify that this and the preceding [38] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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DR R CLARNETTE, SESSIONAL MEMBER
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