GG
[2024] WASAT 11
•26 FEBRUARY 2024
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: GG [2024] WASAT 11
MEMBER: PRESIDENT PRITCHARD
MS J DE KLERK, MEMBER
MS V HAIGH, MEMBER
HEARD: 22 FEBRUARY 2024
DELIVERED : 26 FEBRUARY 2024
FILE NO/S: GAA 4781 of 2023
GG
Represented Person
FILE NO/S: GAA 4782 of 2023
GG
Represented Person
Catchwords:
Application for review of guardian and administration - Who would be a suitable guardian and administrator - Best interests of the represented person - Intellectual disability - Conflicting medical evidence - Internal family conflict
Legislation:
Guardianship and Administration Act 1990 (WA)
State Administrative Act 2004 (WA)
Result:
Review applications dismissed, decisions of the Member affirmed
Category: B
Representation:
GAA 4781 of 2023
Counsel:
| Represented Person | : | N/A |
Solicitors:
| Represented Person | : | N/A |
GAA 4782 of 2023
Counsel:
| Represented Person | : | N/A |
Solicitors:
| Represented Person | : | N/A |
Cases referred to in decision:
FS [2007] WASAT 202
GG [2020] WASAT 54
GG [2021] WASAT 133
Public Trustee (WA) v Brumar Nominees Pty Ltd [2012] WASC 161
SAL and JGL [2016] WASAT 63
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
Ms TH has made two applications, pursuant to s 17A(1) of the Guardianship and Administration Act 1990 (WA) (GA Act), to review decisions made by a single member of the Tribunal on 20 and 27 September 2023 respectively (Review Applications).
In her decision of 20 September 2023, the learned Member declared that GG, who is Ms TH's son, was unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all of his estate and was in need of an administrator of his estate. The learned Member appointed the Public Trustee to be the plenary administrator of GG's estate (Administration Decision).
In her decision of 27 September 2023, the learned Member declared that GG was incapable of looking after his own health and safety, unable to make reasonable judgments in respect of matters relating to his person, in need of oversight, care or control in the interests of his own health and safety and in need of a guardian. She appointed the Public Advocate as GG's limited guardian with specified functions, namely to decide where he was to live, with whom he was to live, whether he should work, what treatment decisions should be made, what contact he should have with others, the services to which he should have access, with whom he was to associate, to conduct or settle any legal proceedings as GG's next friend, and to decide whether to give or withhold consent to the use of any restrictive practices (Guardianship Decision).
The issues for determination on the review are whether the criteria under the GA Act for the appointment of a guardian and an administrator are met, and if so, whether there is a need for those appointments, and if so, who should be appointed GG's guardian and administrator and with what functions.
For the reasons which follow, we have concluded that the criteria for the appointment of a guardian and an administrator are met, that there is a need for the appointment of a guardian and an administrator for GG, and that as none of the persons who proposed themselves for appointment to those roles are suitable, that the Public Advocate and the Public Trustee should be appointed as GG's guardian and administrator respectively. We are satisfied that the functions given to the guardian and administrator by the learned Member remain appropriate. Accordingly, the Review Applications should be dismissed, and the orders made by the Tribunal in the Guardianship Decision and Administration Decision should be affirmed.
Factual background
This matter has a long background in the Tribunal. GG is a 30‑year‑old man. Guardianship and administration orders were first made for GG in 2013 on the application of his father, Mr BG. Those orders were revoked on a review under s17A of the GA Act brought by Ms TH in 2015. Guardianship and administration orders were again made in 2020 and have been in place since then. Ms TH has disputed, and she continues to dispute, that the requirements of the GA Act for the appointment of a guardian and administrator are met, and there have been disputes between her and GG's appointed guardian, the delegate of the Public Advocate (delegate), as to the decisions made by the delegate in relation to GG.
Further background is set out in decisions of the Tribunal in GG [2020] WASAT 54, and in GG [2021] WASAT 133.
The nature of the review
Section 17A(1) of the GA Act permits any party who is aggrieved by a determination made by the Tribunal consisting of one member, to request the President of the Tribunal to arrange for a full Tribunal to review the determination.
An express right of review is granted to any party who is aggrieved by a decision of a single member. Reviews under s 17A thus come within the Tribunal's review jurisdiction.
As the Tribunal is exercising its review jurisdiction, the hearing of the Review Application was conducted as a hearing de novo. Consequently, the hearing was not confined to the matters that were before the Tribunal at first instance but involved the consideration of new material including evidence the Tribunal received in the hearing of the Review Application.[1]
[1] State Administrative Tribunal Act 2004 (WA) (SAT Act), s 27(1).
The purpose of a review is to produce the correct and preferable decision at the time of the decision on the review.[2]
[2] SAT Act, s 27(2).
Principles governing proceedings under the GA Act
Before turning to examine each of the primary questions in more detail, it is appropriate to recall that in dealing with proceedings under the GA Act, the Tribunal is required to observe the principles set out in s 4 of that Act.
The primary concern of the Tribunal is the best interests of any represented person.[3] In addition, every person is presumed to be capable of, amongst other things, managing their own affairs and making reasonable judgments in respect of matters relating to their estate, until the contrary is proved to the satisfaction of the Tribunal.[4] That important presumption applies in respect of every application under the GA Act, including the present Review Applications.
[3] GA Act, s 4(2).
[4] GA Act, s 4(3).
In considering any matter relating to a represented person, the Tribunal is required, as far as possible, to seek to ascertain the views and wishes of the person concerned.[5]
[5] GA Act, s 4(7).
Furthermore, an administration order should not be made if the needs of the proposed represented person could, in the opinion of the Tribunal, be met by other means less restrictive of the person's freedom of decision and action.[6]
[6] GA Act, s 4(4).
A plenary guardian shall not be appointed if the Tribunal is of the opinion that the appointment of a limited guardian would be sufficient to meet the needs of the PRP.[7] In addition, any order appointing a limited guardian or an administrator should be in terms that, in the opinion of the Tribunal, impose the least restrictions possible, in the circumstances, on the represented person's freedom of decision and action.[8]
[7] GA Act, s 4(5).
[8] GA Act, s 4(6).
The evidence before the Tribunal on the Review Application
GG attended the hearing of the Review Applications by videolink. We invited GG's views in respect of the Review Applications. He was unable to say much, but it was clear that he likes living at his mother's home, with his mother and other family members.
A number of interested persons attended the hearing by videolink and gave evidence. They were as follows:
(a)TH – GG's mother, and the applicant in the Review Applications;
(b)TV – GG's sister;
(c)BG – GG's father, who is divorced from TH;
(d)HC – GG's specialist support co-ordinator under the NDIS;
(e)AR – the delegate of the Public Advocate, GG's guardian.
In addition, the Tribunal had before it written submissions filed by Ms TH setting out her position on the Review Applications.
The Tribunal also had before it various documents prepared by medical practitioners and health professionals who treated GG, and by service providers engaged in GG's care at various times, including:
Date Report provider 11/12/23 Dr RB – a general practitioner 12/9/23 Dr MM – a general practitioner 21/7/23 Dr RM – a general practitioner 19/4/21 & 16/4/21 Dr WVW – a psychiatrist 22/4/16 Dr JC – a psychiatrist 10/08/09 Ms AH – a psychologist 1/11/06 Ms TD – a clinical psychologist 28/8/23 Ms HC – Specialist Service Co-ordinator 19/07/23 Ms HC (then known as Ms HR) – Specialist Service Co-ordinator 5/07/23 Ms SH – an occupational therapist 27/06/23 Ms C – a speech pathologist 16/06/23 Ms AS – an occupational therapist
In addition, the Tribunal also had copies of hospital discharge summaries and general practitioner clinical notes of various dates.
Also in evidence were reports provided by the Public Trustee and the Office of the Public Advocate.
We have also had regard to the transcript of the hearing before the learned Member which culminated in her making the Guardianship Decision and the Administration Decision. We have also had regard to the decisions of the Tribunal in GG [2020] WASAT 54, and in GG [2021] WASAT 133, and especially to the discussion, in the latter decision, of oral evidence given to the Tribunal by Dr WVW.
Appointment of guardian
The appointment of a guardian under the GA Act requires that the Tribunal be satisfied as to the matters set out in s 43.
If the Tribunal is satisfied that the PRP is over 18 years of age, is either incapable of looking after his own health and safety, unable to make reasonable judgments in respect of matters relating to his person, or in need of oversight, care or control in the interests of his own health and safety or for the protection of other persons, and is in need of a guardian, then the Tribunal is required to consider subsidiary questions, such as whether a plenary or limited guardian should be appointed, what functions should be given to a limited guardian, and who should be appointed the guardian.
Those criteria require the Tribunal to consider the following:
(a)whether GG has attained the age of 18 years.
(b)whether GG is —
(i)incapable of looking after his own health and safety;
(ii)unable to make reasonable judgments in respect of matters relating to his person; or
(iii)in need of oversight, care or control in the interests of his own health and safety or for the protection of others.
(c) whether GG is in need of a guardian.
There is no dispute, and we find, that GG has attained the age of 18 years.
The question whether GG has the capacity to make decisions in respect of personal matters as described in s 43 was in dispute.
The evidence in relation to GG's capacity was of two kinds: reports from medical professionals and from service providers in the disability care or allied health professions, and accounts from witnesses as to their knowledge of GG's capacity to make personal decisions.
Reports of medical professionals and service providers
There is no doubt that GG has autism spectrum disorder (ASD), and a language impairment, which makes communication more difficult. Whether GG has an intellectual disability, or lives with other conditions which affect his cognition, and if so, what those conditions may be, is not the subject of agreement. It appears likely that a formal assessment and diagnosis has been made more difficult by GG's ASD and language difficulties, but also by the unwillingness of TH to accept that there may be any further condition which affects his functioning.
The overwhelming majority of the evidence strongly supports the conclusion that in addition to his ASD and language impairment, GG has an intellectual disability. (He may also suffer from mental health conditions such as anxiety). That evidence is, in summary, as follows:
In his report of 11 December 2023, Dr RB, a general practitioner, opined that GG has ASD, and an intellectual impairment which was static (rather than fluctuating). He appears to have relied on hospital discharge summaries for that view, rather than making his own assessment. However, he was unambiguously of the view that GG was incapable of making personal decisions in relation to matters such as medical treatment and procedures, accommodation and services, and that he was incapable of making simple or complex financial decisions or decisions in relation to legal matters.
In his report of 21 July 2023, Dr RM, a general practitioner, opined that GG had ASD, and an intellectual disability, which conditions were static. He also opined that GG suffered from depression. Dr RM was unambiguously of the view that GG was incapable of making decisions in relation to matters such as medical treatment and procedures, accommodation and services, and that he was incapable of making simple or complex financial decisions or decisions in relation to legal matters.
In her report of 22 April 2016, Dr JC, a psychiatrist, opined that GG had a diagnosis of ASD with low intellectual functioning, and that he lived with systemic conflict (which appears to be a reference to disputes arising from his parents' separation) and stress. However, she did not engage in any detailed assessment of his cognitive abilities.
Ms AH, a psychologist, undertook a detailed assessment of GG for the Disability Services Commission, at the request of GG's father, Mr BG. In her report dated 10 August 2009, Ms AH concluded that GG met the diagnostic criteria for intellectual disability. She referred to a number of previous assessments made by GG's teachers, and other professionals. A teacher's assessment, undertaken in 2006 when he was 13 years old, was that he could read and understand at a fourth-grade level, showed little interested in mathematical signs and was unable to add and subtract double-digit numbers or understand fractions. An intelligence assessment undertaken in 2007 was that GG had an IQ score in the 'extremely low range' but that his non‑verbal IQ was higher than his verbal IQ. Ms AH reported that she had assessed GG's non‑verbal intelligence for the purposes of her report, and found his score to be in the extremely low range, and comparable to the non-verbal IQ score from the earlier test.
Ms AH also referred to an assessment by Dr F, a psychologist, in 2007, in which GG was assessed as having a full scale score in the extremely low range, but noted that the difference between GG's scores for verbal comprehension (extremely low) and perceptual reasoning (average) was statistically highly significant. Ms AH observed that that contrasted with testing undertaken in 2005 (when GG was nearly 12 years old), where there was no significant difference between his verbal comprehension and perceptual reasoning scores, and his full scale score was in the extremely low range.
Ms AH noted the difficulties in assessing GG because of the traits and characteristics he displayed which were consistent with ASD, and that his non-compliance at school, truancy, and unwillingness to be assessed, had reduced his exposure to learning opportunities.
In her report, dated 1 November 2006, which was prepared after seven sessions with GG, Ms TD, a psychologist, reported that GG had longstanding attentional difficulties, and that he had extensive receptive and expressive language difficulties. She noted that he often relied on visual cues and verbal prompts, that he tended to adopt stock phrases and that he was highly susceptible to being influenced by leading questions. Ms TD opined that GG's cognitive ability and language difficulties and preoccupations potentially marred his ability to distinguish fact from reality and made him highly suggestible and easily influenced by others.
In her report of 5 July 2023, Ms SH, an occupational therapist, noted that there was no evidence to suggest that GG could live independently in the community without significant levels of formal support within the home environment, that he had poor insight into his emotional state and a limited repertoire of self-regulation strategies, and that his lack of insight, disinhibition and impulsivity led to erratic and unsafe behaviour. She was of the view that GG was at a high risk of exploitation due to his intellectual impairment and his reduced ability to navigate safe boundaries in relationships.
In he report of 27 June 2023, Ms C, a speech pathologist, explained how GG's language impairment affected his ability to function independently. She noted that GG's language skills were not sufficient to support his independence in everyday functioning and that he would require additional support to comprehend spoken information accurately.
Finally, in an extremely detailed report of 16 June 2023, Ms AS, an occupational therapist, noted that 'there are several overlapping symptoms and impacts on functional capacity between [GG's] primary diagnoses and secondary diagnoses. It is expected that [GG's] mental health … directly impacts on his autism presentation. The complex interplay between [GG's] psychosocial and neurodevelopment diagnosis significantly impacts on his participation and engagement in personal activities of daily living…, instrumental activities of daily living …, community engagement and development of social relationships'. In relation to his cognition, she noted that GG's 'cognition and ability to learn is largely impacted by his environment, ability to regulate his emotions and sensory processing difficulties. It appears that [GG] also requires support with his executive functioning skills including planning, task initiation and organisation. The overlap between [GG's] autism presentation and psychosocial diagnosis largely impacts on his cognitive capacity and ability to learn new skills'.
Ms AS undertook an assessment of GG's personal care and needs to assess the level of support he required for day to day living. His score on that assessment indicated that 'he requires assistance and/or monitoring 24 hours per day. … [GG] receives significant support from his support workers daily for medication management, domestic cleaning, shopping, meal preparation and community access. [GG's] cognitive capacity and emotional dysregulation currently impacts on his capacity to live independently and is likely to require this level of support ongoing. [Ms AS] opines that this is an accurate representation of [GG's] current support needs, given [GG] requires support to manage all activities of daily living and has an extensive history of hospital admissions when he has not had access to necessary support'.
On an assessment on the instrumental activities of daily living scale, GG also attained a very low score which 'demonstrates a high level of dependency on others to manage instrumental activities of daily living'. Ms AS opined that 'this is an accurate representation of [GG's] current level of functioning, as noted throughout the report, support workers manage most tasks including domestic cleaning, laundry, finances and meal management. Whilst [GG] has had very limited opportunities to build his capacity and participate in domestic duties, when [GG] participates in instrumental activities of daily living, he requires 1‑person moderate assistance for sequencing, prompting, and to ensure his safety throughout tasks'.
All of the evidence to which we have referred so far supports the conclusion that in addition to his ASD and language impairment, GG also has an intellectual disability. This evidence also strongly supports the conclusion that GG does not have the cognitive capacity to make judgments about personal matters such as whether he should have particular medical treatment, or what accommodation options might be available to him, and which would suit his needs, or what services he requires to assist him to live as independently and autonomously as possible.
There were, however, two medical reports which were not consistent with that conclusion.
In her report of 12 September 2023, Dr MM agreed that GG has ASD and a language impairment, but said that his condition was a fluctuating one. She did not express the opinion that GG had capacity to make independent decisions in relation to personal matters or financial matters of a more complex or involved kind. Instead, Dr MM was unsure whether GG had the capacity to make decisions in relation to complex financial matters and legal matters, or in relation to medical treatment. Dr MM opined that GG was capable of making decisions in relation to simple financial matters and was 'living independently with the support of his family when I last saw him'. Similarly, in relation to accommodation and services Dr MM opined that GG was 'capable in relation to accommodation and services' in that he 'is sensitive and aware of his living needs' and 'was happy with services provided by NDIS'. However, the latter opinions appear to refer to supported decision making rather than to whether GG is capable of making independent decisions about simple financial matters, accommodation or services. Given that ambiguity in relation to Dr MM's opinions, we do not place great weight on them.
Of greater significance were the reports of Dr WVW of 19 and 16 April 2021. Dr WVW is a psychiatrist. He saw GG once, on 16 April 2021, accompanied by Ms TH. Dr WVW found that GG has a mental disability, namely ASD, with an accompanying language impairment, but found that he was capable in all respects.
We have also taken into account the oral evidence given by Dr WVW at a hearing before the Tribunal on 30 June 2021.
His evidence at that hearing was summarised in the Tribunal's decision in GG [2021] WASAT 133 as follows:
[40]Dr VW attended the hearing and gave oral evidence, in which he:
(a)indicated that he 'didn't do any special examination' but that his assessment was a clinical assessment and interview. The latter, because of GG's language impairment, was conducted largely with TH, but with GG in the room. During the interview GG:
(i)was engaged in reading books in which he seemed to have quite a keen interest. Dr VW could not recall the specifics of the books, but said they were not what one would expect to see with somebody with an intellectual impairment and, as such, reasoned that his IQ must be at least normal;
(ii)appeared to listen to the conversation, keeping himself distracted, and indicating if he did or did not agree with something;
(b)stated it was important to distinguish between GG's ASD and language capacity and his intellectual capacity, opining that GG's ASD complicates his interpersonal communication, and that his language is poor, but that 'his intellectual capacity is actually not that impaired';
(c)when asked whether he equated intellectual impairment with functional impairment, Dr VW stated his view is that:
(i) functional capacity includes intellectual, language and communication domains; and
(ii)GG has the capacity to understand and make judgments, but experiences 'some minor dysfunction[s] that are discrepant with others and make it difficult to get an overall or tentative overall ability'; and
(iii)GG's language and interpersonal communication domains are 'definitely impaired';
(d)when asked by TH whether GG would have the ability to choose where he lives, who he lives with, who he has contact with and when, and what services he does and does not wish to have, he replied that he thought GG had that ability; and
(e)indicated that in his experience (principally dealing with people in supported accommodation), a clinical environment is not the best place to assess a person's capacity; rather, the person's functioning in their own environment is a more accurate assessment.
(footnote references to transcript omitted)
The Tribunal noted that various medical reports which were contrary to his view, and to which he had not had regard in forming his opinion, were drawn to Dr WVW's attention, and went on:
[41]…Those assessments did not change his views. He explained this by saying that:
(a)when GG saw [one of the doctors], he would have been experiencing changes in his living arrangements and this may have affected his functioning; and
(b)as to [an occupational therapist report, and a report of a general practitioner which relied upon it], much of that assessment seemed to reflect GG's language and communication impairments, not his intellectual ability.
Ms TH urged us to give the greatest weight to Dr WVW's opinions, on the basis that he had the greatest expertise, and had conducted his own assessment.
Despite his qualification as a psychiatrist, we give less weight to the opinion of Dr WVW than we give to the other medical reports and service provider reports to which we have referred, for the following reasons.
First, ASD is a neurodevelopmental disorder. It was not entirely clear how Dr WVW's expertise as a psychiatrist would place him in any better position than any of the other medical practitioners, and psychologists, whose evidence we received, to assess whether GG has an intellectual disability, or to assess whether any such disability, in conjunction with his ASD and language difficulties, would result in impaired cognitive ability. In other words, we are not persuaded that Dr WVW's expertise as a psychiatrist means that his opinion should carry greater weight than the other evidence we have received.
Secondly, Dr WVW's diagnosis was said to have been based on an assessment of GG 'on the basis of an hour interview with him and his mother'. However, he later observed that GG engaged in 'minimal verbal conversation' but felt there was 'considerable non-verbal communication'. Having regard to his evidence before the Tribunal on 30 June 2021, it was apparent that in fact Dr WVW's assessment was based largely on his interview with Ms TH and observations of GG's behaviour in the consulting room during that interview, and that it was those observations which constituted the 'non-verbal communication' to which Dr WVW referred.
Furthermore, in his oral evidence before the Tribunal on 30 June 2021, Dr WVW made clear that no testing of GG's intellectual and cognitive abilities was undertaken. It appears that the relevant information on which Dr WVW's opinion was based was provided by Ms TH, having regard to Dr WVW's reference to the fact that 'over the past two years [GG] was empowered to make his own choices assisted by his family'. For the reasons outlined below, Ms TH's opinion of GG's decision-making capacity and intellectual abilities stands in very stark contrast to the opinions of others who have dealt with GG, and whose opinions we prefer to hers. In short, there is a very real possibility that in so far as Dr WVW relied upon Ms TH's observations or opinions in relation to GG's capacity, she may not have been a reliable witness.
Thirdly, Dr WVW's views in relation to GG's decision making capacity in various contexts were not explained. For example, in relation to simple financial matters, Dr WVW did not refer to any assessment of GG's independent capacity to make such decisions, but rather opined that 'GG is able to communicate his needs via emotionally attuned supportive relationships'. Similarly, in relation to complex financial decisions, Dr WVW's opinion was that 'GG exhibits a high level of trust in his family. [Ms TH's] convincing degree of emotional warmth, sensitivity and integrity evidences a low risk of financial exploitation'. That again did not explain how GG was able to make complex financial decisions for himself, but was simply directed to the separate question of whether he was vulnerable to financial exploitation. Moreover, Dr WVW's opinion again appeared to proceed on the basis that GG was reliant on family members to assist and protect him from exploitation.
In relation to decisions concerning personal matters, such as whether to undergo medical treatment, where GG should live, and what services GG needed, Dr WVW opined, respectively, that '[GG] could contribute to psychiatric assessment of his diagnosis and treatment planning'; that GG 'appears happy and secure in his current living environment' and that '[GG] was listening and happy during our conversation to assess his accommodation and support needs; supporting my own assessment that he receives adequate support from his family having direct access to NDIS services'. None of those opinions imply any independent decision making ability, but rather appear to accept that, at most, GG may, with support, be able to contribute to making decisions about medical treatment, and otherwise is dependent on others for other kinds of personal decisions.
Fourthly, Dr WVW acknowledged that his opinion was reached 'without the benefit of or obstruction from previous reports'. However, the explanation he gave at the hearing on 30 June 2021, as to why he reached a different opinion to those set out in the other reports (which had been drawn to his attention at the hearing) was not persuasive, and relied upon speculation about deficiencies in the assessments carried out by others, rather than in identifying the particular bases for his conclusions about GG's capacity.
Finally, while Dr WVW's opinions as to GG's decision-making capacity were consistent with those of Ms TH, and to some extent with those of Ms TV, they were inconsistent with the observations of Mr BG, GG's father, and with those of Ms HC, who has had close involvement with GG in recent times in her role as his service support co-ordinator. We refer to their evidence below.
Accordingly, neither the evidence of Dr WVW, nor that of Dr MM, causes us to doubt the cogency of the opinions advanced by the other medical practitioners and the service providers to which we have referred. Their opinions strongly support the conclusion that in addition to his ASD and language impairment, it is more likely than not that GG also suffers from an intellectual disability, the combined effect of which is that GG is not able to make reasonable judgments in respect of matters relating to his person, is not capable of looking after his own health and safety, and is in need of oversight, care or control in the interests of his own health and safety.
That conclusion is also supported by the evidence of some of the witnesses who attended the hearing, to which we now turn.
The evidence of the witnesses
TH's view is that GG is capable of making decisions for himself, and disputed the findings of the Tribunal that he is incapable of looking after himself and requires care and oversight. She relies on the reports of Dr WVW and submitted that those reports should be given greatest weight by the Tribunal because his opinion was the most recent specialist assessment of GG's capacity and because he has the greatest expertise. Ms TH submitted that the general practitioners who have expressed opinions in relation to GG's cognition did not have specialist expertise to assess his capacity, saw him for only short periods of time, and did not undertake an assessment of his cognitive ability. She submitted that assessments by Dr JC and by Ms AH should not be given weight because they were old reports, and that reports by service providers, including GG's occupational therapists, should not be given weight because they had not done an assessment of GG's capacity for decision making.
Ms TH's view is that GG's capacity for decision making has been greatly affected by 'being in the system' – that is, by virtue of being subject to guardianship and administration orders, and the consequences of decisions made by guardians. However, she maintained that he still has the ability to make decisions for himself. Ms TH told us that GG understands everything that is explained to him. She said that if GG was given something complex 'off the cuff', which was not explained, he would need more clarification. She told us that in the past when GG has been unwell, he has been able to ring for an ambulance to go to hospital, and that if he wants to go to a doctor he will ask her to take him. Ms TH considers that GG is able to make decisions about what services he requires. She said he can identify the services that he needs, although he may need to research how to organise access.
There is no doubt that Ms TH loves GG very much. However, we do not accept her evidence that GG is able to independently make decisions about matters personal to himself, other than for the most simple kind (such as a choice of what movie he wants to watch, or what food he wants to eat). Beyond such simple decisions, Ms TH's evidence amounted, at its highest, to a belief that GG was capable of supported decision making – that is, once things were explained to him, he was capable of making a decision or a choice. We do not accept Ms TH's evidence because it is at odds with the evidence of others who have observed GG's day to day living, and with the weight of medical opinions, and the opinions of service providers.
Ms TV's view was that in the right circumstances, GG is very intelligent. She maintained that with support, he can make his own choices. However, she acknowledged that he needs someone to keep an eye on him. Her evidence, at best, suggests some prospect for supported decision making, but does not support the conclusion that GG is able to make independent decisions in relation to personal or financial matters. Her evidence also supports the conclusion that GG is in need of oversight, care or control in the interests of his own health and safety.
Mr BG was adamant that GG does not have capacity for independent decision making, and is completely dependent on Ms TH to make decisions for him. He says that GG has an intellectual disability and that that is supported by the medical reports, and was initially confirmed by Ms AH, who prepared a report for the Disability Services Commission.
Mr BG also relied on his own observations of GG. He said that when GG was about 18 years old he lived with Mr BG for a time. assessment of decisions, and always needed to be assisted. He said that GG has an understanding of relationships, but that GG is otherwise completely dependent on his mother.
Ms HC was engaged in 2022 as GG's specialist support co‑ordinator. She provided two written reports to the Tribunal, dated 28 August 2023, and 19 July 2023, and supplemented those reports with her oral evidence at the hearing.
Ms HC's contact with GG has fluctuated since her initial engagement as his specialist support co-ordinator, because of Ms TH's resistance to the involvement of service providers in GG's care. However, in 2023 Ms HC became more involved in GG's care, and has had a lot to do with him since then. She explained that GG does disengage from services at times. Sometimes he will ask to go to a doctor if he is unwell, and on other occasions, he will ignore the fact that he needs medical care. Ms HC said that GG has an amazing vocabulary but that that is not always understood by others or by GG himself, as he presents with echolalia (that is, where he quotes things he has heard, especially from television and movies). Ms HC says GG is a black and white thinker, and that if he disagrees with something he will not listen to it, and will refuse to engage.
Ms HC noted that she had not been able to organise for an assessment of GG's decision making ability to be undertaken in an environment which is conducive to a more accurate assessment being made. However, she explained that even in relation to small decisions GG presently needs assistance. She also confirmed that in her view he was not able to make complex decisions. Ms HC's opinion was that GG's ability to function with more independence required a team approach, to support him to be able to make his own small decisions in relation to his daily living.
We give the greatest weight to the views of Ms HC, because she stands apart from GG's family, and has had the opportunity, through her contact with GG over several months, to observe his day to day functioning.
GG's guardian, Ms AH, relied largely on the medical reports and service provider reports before the Tribunal for her view that GG lacked the capacity to make reasonable judgments in respect of personal matters, was incapable of looking after his own health and safety, and was in need of oversight, care or control in the interests of his own health and safety. She explained that over the previous six months, when attempts had been made to arrange accommodation for GG in supported accommodation, he had absconded from the residence, putting himself in some danger, to return to Ms TH's home. Ms AR explained that GG has difficulties regulating his emotions, and that this meant he could not make decisions in his own best interests.
The evidence of Ms HC, of Ms AR, and of Mr BG supports the conclusion that GG is incapable of looking after his own health and safety, needs oversight, care or control in the interests of his own health and safety, and that he is unable to make reasonable judgments in respect of matters relating to his person. The evidence of Ms TV is, in part, consistent with that evidence, to the extent that it supports the conclusion that GG requires oversight, care or control in the interests of his own health and safety.
In so far as the evidence of Ms TV and Ms TH may be understood to suggest that GG is able to make reasonable judgments in respect of matters relating to his person, or capable of looking after his own health and safety, we are unable to accept their evidence.
Our conclusions in relation to GG's capacity to make decisions relating to his person
Having regard to the evidence of the medical practitioners, and service providers whose evidence we have preferred, and to the evidence of Ms HC, Ms AR, and Mr BG, we are satisfied, and we find that GG:
(i)is incapable of looking after his own health and safety;
(ii)unable to make reasonable judgments in respect of matters relating to his person; and
(iii)in need of oversight, care or control in the interests of his own health and safety.
Is there a need for a guardian or is some less restrictive means available?
We turn next to the question of whether or not there is a less restrictive means available for such decisions to be made.
We are satisfied, and we find, that there is a need for a guardian to be appointed for GG, and that there is no less restrictive means available by which the kinds of decisions which may need to be made for GG can be made. It is essential that there is someone with the necessary authority to make decisions in relation to matters such as medical treatment, and the services GG needs, in particular. No informal form of decision making authority will suffice.
What decision-making functions does the G need to perform?
We are satisfied that the appointment of a limited guardian would suffice in this case.
The evidence suggests that the same functions as were given to the guardian by the learned Member in the Guardianship Decision remain necessary and appropriate.
Who should be appointed guardian?
Section 44 of the GA Act sets out criteria for who may be appointed a guardian. Under s 44(5) of the GA Act, the Public Advocate should not be appointed unless there is no other person who is suitable and willing to act.
In this case, Ms TH, Ms TV and Mr BG proposed themselves for appointment as GG's guardian, and as his administrator.
We pause there to observe that shortly after the hearing, the Tribunal was advised by Ms TH that Mr BG had suffered a serious medical incident and was critically unwell. The Tribunal has since been advised that Mr BG has passed away. That sad news means that his application for appointment requires no further consideration.
Each of Ms TH and Ms TV is over 18 years of age, and has consented to act as guardian for GG. The question, then, is whether they are suitable for appointment. The criteria for appointment in s 44 of the GA Act require the Tribunal to be of the opinion that a proposed guardian will act in the best interests of the represented person, will not be in a position where their interests will or may conflict with those of the represented person, and is otherwise suitable to act as guardian. In assessing suitability, the Tribunal is required to take into account the desirability of preserving existing relationships with the represented person's family, the compatibility of the proposed appointee with the administrator of the represented person's estate, the wishes of the represented person, and whether the proposed appointee will be able to perform the functions vested in them.
Ms TH told us that she has looked after GG all his life, and wants the best for him. She wants to help him to get help to develop his skills.
In relation to Ms TH, in our opinion, while as we have said, we have no doubt that she loves GG very much, she is not suitable to act as GG's guardian, for the following reason.
Because Ms TH does not accept that GG lacks the ability to make his own decisions in relation to personal matters, we do not consider that she will be able to act in his best interests. That may manifest in several ways. Because Ms TH has overestimated GG's ability to look after his own health and safety, the plans she has been willing to make, in the past, for his accommodation, have involved him being left alone for long periods, without supervision, which is to put his safety at risk. Further, Ms TH has been resistant to the involvement of service providers in providing assistance to GG, which detracts from his potential to develop skills to maximise his potential for autonomy, even in simple decisions. We do not overlook the recent positive development, which is that Ms TH appears to have greater confidence in Ms HC, and in the assistance that she is able to provide GG as his service support co-ordinator, and is therefore receptive to working with her in the future. We hope that that continues. However, in light of the lengthy history of Ms TH's unwillingness to co-operate with service providers, we cannot be confident that Ms TH will be open to suggestions from health professionals and service providers as to treatment or services which may be of benefit to GG in the future.
To the extent that it is possible to ascertain GG's wishes, we consider them to be that he wishes to live with, and be cared for, by his family. We therefore infer that he would prefer Ms TH to be his guardian, if one were to be appointed. Although we have taken that into account, that preference does not overcome our concerns in relation to Ms TH's suitability otherwise.
Next, we consider whether Ms TV would be suitable to act as GG's guardian. Ms TV is Mr GG's adult sister. She is employed. At present she lives in the same house where GG is living. Ms TV told us that she has a better understanding of GG's needs than a stranger would, and that her involvement might alleviate the difficulty that can arise if he living with pain and his carers do not know what do to because they are not familiar with him. Ms TV said that she would put GG's best interests first at all times. When asked what she would do if GG did not agree with her decisions, were she made guardian, Ms TV did not consider that that would be a problem as, in her view, GG received her views better than the views of his carers.
Ms TV acknowledged that she is very close to Ms TH, and is similar to her, in that they are both passionate about GG's welfare. She discounted the possibility that if she were made guardian, she might make decisions with which Ms TH did not agree. Ms TV did not consider that that would damage her relationship with Ms TH, because any differences could only be small.
Having taken the evidence into account, we are not satisfied that Ms TV is suitable for appointment as GG's guardian, for two reasons.
First, like Ms TH but to a lesser extent, Ms TV did not appear to fully accept GG's cognitive limitations, and the impact that that has on his functioning and his needs. As a result, we are concerned that she may not act in GG's best interests in identifying the services he requires to enable him to maximise his independent functioning and participation in the full range of activities of which he may be capable.
Secondly, if Ms TV were made guardian and is required to act in GG's best interests, the possibility exists that she may make decisions with which Ms TH does not agree. Because of Ms TH's passionate views about what is right for GG, it is very likely that any disagreement would harm the relationship between her and Ms TV. We are unable to agree with Ms TV that any disagreements would be likely to be minor.
We infer that if Ms TH were not able to be appointed, that GG would prefer a family member, such as Ms TV, to be appointed as his guardian. However, that consideration is not sufficient to overcome our concerns about Ms TV's suitability on other grounds.
There being no other person who is suitable and willing to be appointed as GG's guardian, there is no alternative but to appoint the Public Advocate as the GG's limited guardian.
The duration of the guardianship order
The Tribunal is required to nominate a period of time by which a review of the guardianship order must be made.
The maximum time allowed under the GA Act is five years.
In this case, we consider that it is in GG's best interests for a long term order to be made.
In the Guardianship Order, the learned Member ordered that a review of the Order be undertaken by 20 September 2028. We consider that to be an appropriate duration for the order.
Orders in relation to the review of the Guardianship Decision
In our view, the correct and preferable decision is that the Public Advocate should be appointed as GG's limited guardian, with the same functions as specified in the Guardianship Decision, and for the same period as specified in that decision.
That being the case, the orders we make in the review of the Guardianship Decision are:
1.The Review Application is dismissed.
2.The decision of the Tribunal, made on 27 September 2023, is affirmed.
Appointment of an administrator
The appointment of an administrator requires that the Tribunal be satisfied as to the matters set out in s 64(1) of the GA Act.
The three primary questions for the Tribunal on the Review Application, in relation to the Administration Decision, therefore, are:
(1)Whether GG suffers from a mental disability;
(2)Whether, by reason of that mental disability, GG is unable to make reasonable judgments in respect of matters relating to all or any part of their estate; and
(3)Whether GG is in need of an administrator of their estate.
If those three questions are answered 'yes', then the Tribunal is required to consider subsidiary questions, such as who should be appointed the administrator, plenary or limited administration, and duration.
Consideration of criteria in s 64(1)
The definition of mental disability in s4 of the GA Act includes an intellectual disability, a psychiatric condition, an acquired brain injury and dementia.
Having regard to the medical evidence to which we have referred, and which we have accepted, we are satisfied, and we find, that GG has a mental disability in that he lives with ASD, with a language impairment, and with an intellectual disability.
The reference to a person's 'estate' is a reference to the aggregate of their property, their assets and liabilities, and in practice encompasses the entirety of their real and personal property and all of their financial affairs.[9]
[9] SAL and JGL [2016] WASAT 63 [22] (Parry J, Dr B De Villiers & Ms Quinlan) ; see also Interpretation Act 1984 (WA) s 5; and see also the long title to the GA Act, which refers to the administrator providing assistance in the management of a person's financial affairs.
The application of s 64 involves both subjective and objective tests.[10] 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.[11]
[10] FS [2007] WASAT 202 (FS) [106] (Barker J, Ms Toohey & Mr Mansveld); Public Trustee (WA) v Brumar Nominees Pty Ltd [2012] WASC 161 [45] (Pritchard J).
[11] FS [110] (Barker J, Ms Toohey & Mr Mansveld); Public Trustee v Brumar Nominees Pty Ltd [45] (Pritchard J).
Although GG's estate is very small, nevertheless, having regard to the evidence of the medical practitioners and service providers whose evidence we have preferred, we are satisfied, and we find, that GG is unable, by reason of his mental disability, to make reasonable judgments in respect of all or any part of his estate. That conclusion is supported by the unambiguous opinions given in the reports of Dr RB and Dr RM. It is also supported by the reports of Ms AH and Ms TD, and by the evidence of Ms HC. On the basis of that evidence we are satisfied, and we find, that by reason of his mental disability, GG is incapable of independently making decisions in relation to simple matters, much less in relation to complex financial decisions. He is vulnerable to exploitation unless he is subject to oversight by others.
We are satisfied, and we find, that GG is in need of an administrator of his estate. As we explained in relation to guardianship, a person with formal and legal authority needs to be able to make decisions in relation to GG's estate. No informal decision making will suffice, in circumstances where he needs to deal with Centrelink in respect of his disability pension, and with NDIS service providers in respect of services he may require.
Accordingly, we are satisfied, and we find, that GG is unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all or any part of his estate, and is in need of an administrator of his estate.
Who should be appointed as administrator?
We turn then to consider who should be appointed as the administrator of GG's estate.
Section 68 of the GA Act provides that an administrator needs to be an individual of, or over, the age of 18 years or a corporate trustee, who has consented to act and who in the opinion of the Tribunal will act in the best interests of the person in respect of whom the application is made and is otherwise suitable to act as the administrator of the estate of that person.
For the purposes of establishing suitability, the Tribunal has to take into account, as far as possible, the compatibility of the proposed appointee with the person and the wishes of that person and whether the proposed appointee will be able to perform the functions proposed to be vested in the administrator.
Ms TH, Ms TV and Mr BG indicated that they were willing to be appointed as GG's administrator.
For the reasons set out above Mr BG's application need not be further considered.
For the reasons set out above in relation to the appointment of a guardian, we are of the opinion that Ms TH and Ms TV are not suitable to be appointed as GG's administrator.
In addition, we find each of them unsuitable for a further reason, namely that we do not consider that they would be compatible, as administrator, with the appointment of the Public Advocate as GG's guardian. That is because the Public Advocate will be required to make decisions in relation to the exercise of their functions in GG's best interests. Some of those decisions may have financial ramifications or require financial contributions from GG. If the administrator is not willing to work co-operatively with the Public Advocate as guardian, and in a way that respects the guardian's duty to act in what the guardian considers to be the represented person's best interests, the performance by the guardian of their duties may be undermined or hindered. In this case, there is a history of Ms TH not co-operating with the delegate. In light of that history, we cannot be satisfied that, in future, if Ms TH were appointed the administrator, she would work co‑operatively with the delegate as GG's guardian, if she disagreed with their proposed decisions.
The same concern arises in relation to Ms TV, who expressed in the hearing her view that 'the current regime' in relation to GG's carers was 'not working' and that arrangements for his care and supervision could be done more efficiently. Those arrangements appear to have been put in place by, or with the approval of the delegate, as GG's guardian. If Ms TV were the administrator for GG's estate, and if she disagreed with proposed decisions of the delegate, as the guardian, which decisions had a financial implication or required a financial input, we are not satisfied that Ms TV would be able to work co-operatively with the guardian, so as not to undermine or hinder the performance, by the guardian, of their duties.
There being no other person who is willing and suitable to act as administrator, the Public Trustee should be appointed the administrator of GG's estate.
We are also satisfied that it is necessary that the administration order confer plenary functions on the Public Trustee, in the best interests of GG.
The Tribunal is required to nominate a period of time by which a review of the administration order must be made.
The maximum time allowed under the GA Act is five years.
We consider that a long-term administration order is in GG's best interests.
The Administration Decision made by the learned Member on 20 September 2023 required that the administration order be reviewed by 19 September 2028.
In circumstances where we consider that the correct and preferable decision is the appointment of the Public Trustee as the plenary administrator of all of GG's estate, and where we are satisfied that an order with a long-term duration should be made, the orders we will make, in relation to the Review Application concerning the Administration Decision, are as follows:
1.The Review Application is dismissed.
2.The decision of the Tribunal made on 20 September 2023 is affirmed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
PM
Associate to the Honourable Justice Pritchard
26 FEBRUARY 2024
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