GG
[2021] WASAT 133
•29 SEPTEMBER 2021
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: GG [2021] WASAT 133
MEMBER: DR B MCGIVERN, MEMBER
HEARD: 30 JUNE 2021
DELIVERED : 29 SEPTEMBER 2021
FILE NO/S: GAA 885 of 2021
GAA 970 of 2021
GG
Represented Person
Catchwords:
Guardianship and Administration Act 1990 (WA) (the Act) - Autism Spectrum Disorder and possible complicating conditions - Whether the statutory presumptions of capability rebutted - Construction of s 43 of the Act - Relationship between presumption that a person can manage their own affairs and s 43 of the Act - Capacity broader than intellectual function - Distinction between ability to express views and wishes and capacity - Appointment of independent guardian or administrator - Compatibility between guardian and administrator
Legislation:
Guardianship and Administration Act 1990 (WA), s 3, s 3(1), s 4, s 17A, Pt 5, s 43, s 44, s 45, s 51(e), s 51(1), s 51(2), Pt 6, s 64(1)(a), s 64(1)(b), s 64(3), s 70(1), s 70(2), s 84, s 86, s 87, s 90(1), s 90(2), s 110ZD
Result:
Administration order confirmed
Guardianship order revoked and substituted
Category: B
Representation:
Counsel:
| Represented Person | : | N/A |
Solicitors:
| Represented Person | : | N/A |
Case(s) referred to in decision(s):
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41
Australian Unity Property Ltd v City of Busselton [2018] WASCA 38
Commissioner of Police v Thayli Pty Ltd [2020] WASC 43
Director General of Department of Transport v McKenzie [2016] WASCA 147
EW [2021] WASAT 111
FS [2007] WASAT 202
FY [2019] WASAT 118; (2019) 98 SR (WA) 190
GC [2017] WASAT 80
GC and PC [2014] WASAT 10
GG [2020] WASAT 54
KRM [2017] WASAT 135
LP [2020] WASAT 25
Ms G [2017] WASAT 108
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
Public Trustee (WA) v Brumar Nominees Pty Ltd [2012] WASC 161
RK [2021] WASAT 13
S v State Administrative Tribunal of Western Australia (No 2) [2012] WASC 306
SM [2015] WASAT 132
T [2018] WASAT 128
T v State Administrative Tribunal [2021] WASC 67
TR [2009] WASAT 157
WR and HR [2014] WASAT 107
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
These proceedings concern the review of guardianship and administration orders made on 3 July 2020 in relation to GG, a 27 year old man with a diagnosis of autism spectrum disorder (ASD). Review of the orders has been sought by GG's mother (TH), and her application coincided in time with a statutory requirement to review the orders. Since both proceedings require determination of the same issues, they were ordered to be heard and determined together.
Issues for determination
The orders under review were made, and the Tribunal exercises jurisdiction in these proceedings under, the Guardianship and Administration Act 1990 (WA) (GA Act).
In these reasons, except as otherwise indicated, any reference to a legislative provision is a reference to a provision of the GA Act.
Consistent with the requirements of the GA Act (as outlined in more detail below), the issues to be determined by the Tribunal are:
a)whether there is sufficient evidence to rebut the presumption that GG is capable of making decisions about his own personal welfare and/or in relation to his estate; and if so
b)whether GG is in need of a guardian and/or administrator, and if so, in respect of which matters;
c)who should be appointed as the guardian and/or administrator for GG, and
d)when should any orders be reviewed?
Nature of review and procedural background of current proceedings
As noted in the introduction to these reasons, these proceedings concern the review of existing orders. It is useful, therefore, to identify the various kinds of review available under the GA Act, and the nature of the review in this instance.
Review of orders under the GA Act
There are three avenues for review by the Tribunal of orders made under the GA Act.
First, s 84 provides for the periodic review of any guardianship or administration order made (including by amending, replacing or continuing an order) under the GA Act, by requiring that:
a)in each case, the order must specify a period, not exceeding five years from the date of the order, within which the order must be reviewed; and
b)the Tribunal must ensure that the order is reviewed accordingly.
Second, the Tribunal may review a guardianship or administration order at any time on the application of a person under s 86.[1]
[1] Persons who may apply without leave for review of orders under s 86 are the Public Trustee, the Public Advocate, the represented person, or a person appointed as guardian or administrator under the orders in question: GA Act, s 86(1)(a)-(b); 86(2). Any other person may bring an application if granted leave under s 87: GA Act, s 86(1)(c).
In dealing with a periodic review under s 84 or a review on an application brought under s 86, the Tribunal:
a)may comprise a single member;
b)exercises its original jurisdiction;[2]
c)conducts a hearing de novo, to determine afresh the question of whether a guardianship order can or should be made in the particular circumstances that exist, and on the information available, at the time of the review hearing;[3] and
d)may confirm, revoke or amend the orders under review.[4]
[2] GA Act, s 90(2).
[3] TR [2009] WASAT 157 at [7]; WR and HR [2014] WASAT 107 at [4].
[4] GA Act, s 90(1).
A third avenue of review is available under s 17A. That section provides that where the Tribunal consisting of one member makes a determination, a party who is aggrieved by the determination may request that it be reviewed by the Full Tribunal.[5] That is not the kind of review the subject of the current proceedings.
Procedural history
[5] 'Full Tribunal' means the Tribunal constituted so as to consist of the President or a Deputy President, plus two other members: GA Act, s 3.
Guardianship and administration orders were first made in relation to GG in 2012, on the application of his father (BG). Those orders:
a)appointed the Public Advocate as guardian and the Public Trustee as his administrator; and
b)were revoked on review, on the application of TH, in 2015.
For a period of about 18 months, being from around mid-2017 to December 2019, GG resided in a group home with a disability service accommodation provider (SJ). That arrangement did not work well for GG and also resulted in a dispute about finances between SJ and TH (on GG's behalf).
In December 2019:
a)GG ceased living in the group home; and
b)two representatives of SJ brought an application in the Tribunal for guardianship and administration orders to be made in relation to GG.
That application resulted in orders being made by the Tribunal (comprising a single member) on 1 April 2020 (April Orders),[6] pursuant to which:
[6] The reasons for those orders are contained in GG [2020] WASAT 54.
a)the Public Trustee was appointed as the plenary administrator of GG's estate; and
b)the Public Advocate was appointed as the limited guardian of GG:
i)to decide where GG was to live (permanently or temporarily), and with whom he should live;
ii)to make treatment decisions for GG;
iii)to determine the services to which GG should have access;
iv)to determine what contact, if any, GG should have with others, and the extent of that contact; and
c)the orders were to be reviewed by no later than 1 April 2021.[7]
[7] Pursuant to GA Act, s 84.
On 2 April 2020, by an application brought under s 17A, TH sought review by the Full Tribunal of the April Orders.
That application was heard on 2 and 3 July 2020, and by orders made on 3 July 2020 the Full Tribunal confirmed the April Orders in the terms that they were made (including the date for review) (July Orders).
Thereafter, TH sought leave to appeal against the decision of the Full Tribunal in the Supreme Court (Leave Application). Thatapplication was heard and determined on 11 March 2021. Inrefusing leave, the Chief Justice:
(a)made some preliminary observations about the merits of the Leave Application, including the considerations relevant to making orders under the GA Act;
(b)noted that the July Orders were due to be reviewed by the Tribunal under s 84 (Periodic Review) on 29 March 2021 (which was then a matter of weeks away); and
(c)ultimately decided that the question of leave should not be decided on the substantive merits, but rather on the basis that it was not in the interests of justice that leave be granted, which would result in parallel proceedings dealing with the same subject matter (but where the appeal would look 'backwards' for error, whereas the Tribunal review would look 'forward' into what is in the best interests of GG).[8]
[8] T v State Administrative Tribunal [2021] WASC 67 (T v SAT).
In the meantime (pending the hearing of the Leave Application in the Supreme Court), on 5 March 2021 TH filed an 'interim application' in the Tribunal, seeking to have the July Orders set aside. The stated grounds for the application (Grounds) are as follows:
1.The [April Orders] were based on a fraudalent [sic] original application by the service provider and further serious misconduct of Government staffers knowingly and willingly using their positions to support the fraud with inflamatory [sic], defamatory and false comments.
2.The [April Orders] and [July Orders] have been unreasonably restrictive upon the Subject and his supporting family members.
3.Every Guardian that has resultantly been put in place has been consistently detrimentally negligent in the conduct and performance of her duties.
4.Every Trust Manager that has resultantly been put in place has been detrimentally negligent in the conduct and performance of her duties.
5.In summary the [April Orders] and [July Orders] have and are consistently causing loss and damage to the Subject and his supporting family mambers [sic].
Noting the substantive nature of that application (to have the July Orders set aside), by orders made on 9 March 2021:
a)the application was taken to be an application pursuant to s 86(1) for review of the July Orders (Section 86 Review); and
b)the Section 86 Review was listed to be heard concurrently with the Periodic Review.
The Section 86 Review and the Periodic Review comprise the proceedings considered and determined in these reasons. A hearing of those proceedings was conducted over two days, commencing on 29March 2021 and concluding on 30 June 2021.
At the commencement of the hearing on 29 March 2021, TH:
a)expressed concerns about previous assessments of GG's capacity;[9]
b)referred to the comments of the Chief Justice in the Leave Application concerning the apparent paucity of recent medical and allied health evidence resulting from personal contact with GG, in relation to GG's capacity;[10] and
c)indicated that she, through a general practitioner (Dr MM), had secured an appointment for GG to be assessed on 16 April 2021 by a psychologist (Dr VW) and wanted that evidence to be available to the Tribunal.[11] The person delegated by the PublicAdvocate to carry out the functions of GG's guardian (Delegated Guardian) agreed to that course.
[9] ts 11-12, 29 March 2021.
[10] T v SAT at [41]-[42].
[11] ts 17, 19, 21, 29 March 2021.
Accordingly, the hearing on 29 March 2021 was used to commence the hearing of oral evidence and submissions, and the proceedings were then adjourned, with the remaining evidence and submissions heard on 30 June 2021.[12]
Evidence
[12] An earlier hearing listed for 17 May 2021 needed to be vacated due to the unavailability (due to sickness) of GG's delegated guardian and of Dr VW.
The following reports were filed in the present proceedings:
a)a report dated 23 March 2021 from the Delegated Guardian (OPA Report);
b)a medical report from a general practitioner (Dr JC) dated 22 March 2021 (GP Report);
c)a service provider report dated 21 March 2021 (SP Report) from a representative (GC) of an agency (FC) engaged by the Delegated Guardian to provide support services to GG;
d)a report containing an occupational therapy assessment of GG dated 31 October 2020 (OT Report);
e)a referral letter Dr MM to Dr VW dated 5 February 2021;
f)reports from Dr VW, being a written report dated 16 April 2021 and pro-forma medical report dated 19 April 2021 (together, VW Reports);
g)a report dated 28 June 2021 from the trust manager assigned by the Public Trustee to administer GG's estate (PT Report).
In addition to the above, I have had regard to:
a)the medical and service provider evidence filed in the proceedings that resulted in the April Orders and the July Orders;[13] and
[13] I was asked by TH to consider 'the whole situation, even further back' in relation to GG's capacity and the basis for making orders: ts 45, 30 June 2021.
b)oral evidence and submissions given in the course of the hearing of by each of:
i)as far as was possible, GG;[14]
ii)TH;
iii)BG;
iv)GC and his wife JC (both of whom have worked with GG through their service agency, FC);
v)the Delegated Guardian; and
vi)Dr VW.
General principles and approach
[14] See [43] below.
Noting the matters outlined in [9] above, in reviewing the July Orders, I am required to consider and apply afresh the provisions relevant to making guardianship and administration orders (which are contained in Pt 5 and Pt 6 of the GA Act, respectively).
As observed in SM [2015] WASAT 132 (SM) at [7]:
The GA Act is often characterised as a form of protective legislation. It provides for the appointment of a guardian for personal decisionmaking and an administrator for financial decisionmaking in situations where a person has a degree of impaired cognition and who might therefore be at risk of making decisions contrary to their best interests or be vulnerable to the decisionmaking of others.
The starting point for any proceedings commenced under the Act is that the Tribunal must observe the principles in s 4, with its primary concern being the best interests of the person in respect of whom orders have been made or proposed (represented person).[15] Other principles include that:
[15] GA Act, s 4(1)-(2).
a)until the contrary is proved to the satisfaction of the Tribunal, all (adult) persons are presumed to be capable of:
i)looking after their own health and safety, and making reasonable judgments in respect of matters relating to their person;[16]
ii)managing their own affairs;[17]
iii)making reasonable judgments in respect of matters relating to their estate;[18]
b)orders should only be made, and be in such terms, as necessary to meet the needs, in the least restrictive way possible, of the represented person;[19] and
c)in considering any matter related to a represented person, the Tribunal must, as far as possible, seek to ascertain the views and wishes of that person.[20]
[16] GA Act, s 4 (3)(a)-(b).
[17] GA Act, s 4(3)(c).
[18] GA Act, s 4 (3)(d).
[19] GA Act, s4 (4)-(6).
[20] GA Act, s 4(7).
The process involved in, and the key provisions relevant to, the making of such orders are usefully summarised in SM as follows:
11The first question to be resolved is that of … capacity[.]
…
13The particular provisions concerning capacity in the GA Act are s 43(1)(b) for guardianship and s 64(1)(a) for administration.
…
16The second question, assuming a finding of incapacity has been made, is whether [the represented person] is in need of guardianship and administration orders: s 43(1)(c) and s 64(1)(b) of the GA Act. The GA Act states that if the needs of [the represented person] can be met in a manner less restrictive of [their] freedom of decision and action then orders should not be made: s 4(4) of the GA Act.
17The final questions, assuming the need for orders has been determined, is to decide what authority should be given to the guardian and administrator, who the guardian and administrator should be and what review date should be set, given the requirement that orders must be reviewed at least once every five years: s 43(1)(d), s 44, s 68, s 69, s 71 and s 84 of the GA Act.
Although each of the above matters was contentious, the principal matters of contention in the present proceedings related to:
a)GG's capacity; and
b)if orders are to be made, who should be appointed as GG's guardian and administrator.
To resolve the matters in contention, it will be necessary to construe the meaning of key provisions of the GA Act identified above. In doing so, the primary object is to interpret each provision in a manner that is consistent with the language and purpose of all the provisions of the statute.[21] The following interrelated considerations and approaches have been identified as promoting that objective:
[21] Director General of Department of Transport v McKenzie [2016] WASCA 147 (McKenzie) at [46]; Commissioner of Police v Thayli Pty Ltd [2020] WASC 43 (Thayli) at [29].
a)the construction of legislation is anchored in the text itself, but having regard to its context and purpose;[22]
b)statutory context with regard to both the immediate provisions and the whole of the Act - is to be considered from the beginning of the task;[23]
c)where statutory provisions intersect, a construction that favours the greatest congruity or coherence between those provisions is to be favoured;[24]
d)each provision in a legislative instrument should have 'work to do';[25]
e)having regard to context includes having regard to the existing state of the law, the history of the legislative scheme and the mischief to which the statute is directed;[26]
f)however, identifying legislative purpose is itself an exercise of objective statutory construction – it does not involve a search for what the legislators may have had in mind, nor the superimposition of some 'desirable' policy objective.[27]
Is the presumption of GG's capacity rebutted?
[22] Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41 at [47]; Australian Unity Property Ltd v City of Busselton [2018] WASCA 38 (Australian Unity Property) at [79], [83].
[23] Thayli at [29].
[24] Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 (Project Blue Sky Inc) at [70].
[25] Project Blue Sky Inc at [71].
[26] McKenzie at [47]; Thayli at [31].
[27] Australian Unity Property at [85].
The Tribunal has previously noted the gravity of the consequences flowing from a finding that the presumption of capacity under s 4(3) is displaced.[28] Such a finding should not be made unless the Tribunal feels an 'an actual persuasion' on the basis of clear and cogent evidence[29] of:
a)in relation to guardianship, the matters are set out in s 43(1)(b); and
b)in relation to administration, the matters set out in s 64(1)(a).
Evidence regarding GG's capacity
[28] GC and PC [2014] WASAT 10 (GC and PC) at [36]; LP [2020] WASAT 25 (LP) at [108].
[29] LP at [49], [51], [107]-[109]. See also S v State Administrative Tribunal of Western Australia (No 2) [2012] WASC 306 at [105]; GC and PC at [36]; GC [2017] WASAT 80 at [89]-[92] and Ms G [2017] WASAT 108 (Ms G) at [61].
The referral letter from Dr MM to Dr VW dated 5 February 2021:
a)states that GG has a history of intellectual disability and ASD, pervasive developmental disorder (PDD), and a previous diagnosis (in 2008) of ADHD (attention-deficit-hyperactivity disorder);
b)notes that GG:
i)has a long history of delusional thoughts with worsening behavioural disorder and self-harm on a background of intellectual disability and ASD;
ii)had several ED (emergency department) presentations over the last five years;
iii)has been under National Disability Insurance Scheme (NDIS) care, closely supported by 'mom and family';
iv)had stopped taking Sertraine 50mg (which had been prescribed by the Sir Charles Gairdner Hospital psychiatrist team 'last year'); and
c)sought Dr VW's 'review for assessment and further management'.
In his report dated 16 April 2021, Dr VW:
a)states that he assessed GG 'on the basis of a one-hour interview with him and his mother, without the benefit of or obstruction from previous reports';[30]
[30] It is unfortunate that, despite orders being made on 29 March 2021 in terms that 'the Public Advocate, as [GG's] appointed guardian, is authorised to provide copies of medical and allied health information about him to [Dr VW]', the Delegated Guardian did not in fact send any such materials to him: ts 6, 30 June 2021.
b)states that he felt confident he was able to get sufficient information to formulate an informed clinical judgment of GG's diagnosis, degree of functional impairment, support needs and the level of support required, ability to participate in decisionmaking and legal capacity to give informed consent;
c)noted a history that included that GG:
i)had started experimental trials with group homes in 2015 but, when that turned out to be unsatisfactory, GG's family rented a house where he lives on his own with rotating support from his mother and two sisters;
ii)was prescribed Ritalin for ADHD in high school but 'hasn't been prescribed ongoing medication since and doesn't seem to had [sic] a need for such' having 'sustained a stable level of functioning followed by gradual improvement in his quality of life';
iii)has been empowered by his family over the last two years to make his own life choices;
iv)had a regular pattern of respite attendances at ED every six to eight weeks to 'reset' escalating tension that pattern having now been replaced with a preventive strategy whereby GG attends weekly GP appointments (with the result that he has not been admitted to the ED for the last three months); and
v)demonstrates obsessional behaviour related to his autism, the symptoms of which did not improve on Zoloft (prescribed 2019/2020). Further, his mental state did not deteriorate after its discontinuation;
d)observed that during the appointment GG demonstrated:
i)settled ritualistic behaviour, also moving freely around the office at times;
ii)minimal verbal communication but considerable non-verbal communication;
iii)adequate awareness of his environment; and
iv)the ability to follow conversation, and to affirm without prompting and differ without distress (but being resistant to interruption);
e)recommended ongoing NDIS support, to be regularly reviewed to re-focus GG's current needs and opportunities; and
f)did not recommend psychotropic medication.
In his report to the Tribunal dated 19 April 2021, Dr VW:
a)reported that he had undertaken a clinical assessment only of GG's functional cognitive ability in a real life situation;
b)diagnosed GG with ASD with accompanying language impairment, which he assessed to be 'improving';
c)assessed that GG is capable of making reasonable decisions in relation to:
i)simple financial matters, stating in relation to that assessment that GG 'is able to communicate his needs via emotionally attuned supportive relationships';
ii)making complex financial decisions,[31] stating in relation to that assessment that GG 'exhibits a high level of trust in his family' and that '[TH's] convincing degree of emotional warmth sensitivity and integrity evidences low risk of financial exploitation';
iii)legal matters,[32] stating in relation to that assessment that GG 'can represent his needs with the advocacy of his family supported by independent legal representation when required';
iv)medical treatment, stating in relation to that assessment that GG 'could contribute to psychiatric assessment of his diagnosis and treatment planning';
v)accommodation, stating in relation to that assessment that GG 'appears happy and secure in his current living environment' and 'became highly anxious when superficial mention was made of his previous accommodation'; and
vi)services, stating in relation to that assessment 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'.
[31] Described on the relevant assessment form as including, for example, 'management of property or large sums of money, purchase or sale of significant assets, pursuing entitlements including income and superannuation, [and] advocating for own interests with financial institutions'.
[32] Described on the relevant assessment form as including, for example, 'the ability to commence, defend or settle proceedings, whether of a personal or financial nature'.
In the SP Report, GC states that FC provided support workers to assist GG until 14 January 2021 (being three months from their appointment by the Delegated Guardian on 14 October 2020[33]). On the basis of that involvement, GC formed the following views which are set out in the SP Report:
[33] OPA Report, page 4. However, I note that during the first day of the hearing, the Delegated Guardian and TH both clarified that although the services from FC had ceased, there had been a meeting between them on 19 March 2021 and there was some prospect of those services being recommenced. By the time of the second day of hearing, service provision by FC had recommenced, but the parties were still working towards a more settled number of hours and arrangements with support workers.
a)GG expresses himself via pictures / drawings, and will express in short sentences how he is feeling;
b)TH navigates GG with conversation, and suggests her thoughts and feelings to him in regard to the choices he might make or how he is feeling;
c)TH will at times state what GG wants or has asked for, when GG has not offered those views or wishes to his support workers. This can make GG emotional and display behaviours such as foot stomping;
d)at the library, GG will print off pictures and will pay for photocopies;
e)GG is not capable of understanding complex household management and saving money for future bills;
f)at the shops, GG has been observed to make small purchases with a debit card, and he will look at DVDs. His purchases are centred on his interests, not on future savings, living expenses or household debts;
g)TH manages GG's allowance and will usually make money available for purchasing things like movie tickets and a drink, rather than for food or clothes shopping; and
h)TH arranges for daily takeaway meals or food delivery services for GG, and he has developed limited independent living skills including in relation to meal planning.
In the SP Report, GC states that he understands that functional assessments of GG (other than that in the OT Report) have been arranged and carried out by occupational therapists but that the reports were not made available to support workers by TH.
The OT Report notes that:
a)GG is an NDIS participant who was referred for a functional assessment as there was a 'need for him to increase his functional independence and capacity building skills'. That assessment was carried on 31 October 2020;
b)GG presented with diagnoses of PDD, ADHD, mild intellectual disability and ASD;
c)GG's emotional regulation was of some concern, notably in relation to anxiety directed behaviour, difficulties communicating this and associated self harm. These matters may be related to past trauma, and are being addressed by assisting GG to understand social cues and social skills, and the use of a blood pressure machine to help calm himself. However, TH reported that he struggles with the execution of those skills, and experiences difficulty understanding the size of the problem and the appropriate response;
d)GG often displays black and white thinking and finds it difficult to apply calming strategies and, when things are not going to plan, he can go on tangents and display physical behaviours (such as punching a wall) and behaviours of concern;
e)although he can manage to undertake many tasks of self care and personal hygiene, GG does not have independent living skills that would enable him to live on his own. He requires stepbystep prompting when learning new tasks, and to refer to a visual checklist once he has memorised the task at hand.
f)in the month prior to assessment, GG was expressing exhaustion and would sleep for much of the day, particularly around changes of behaviour;
g)GG can hurt himself when he is 'feeling bad' and would potentially not seek medical help if left alone;
h)GG has a tactile preference, and limited safety awareness and sequencing ability which make cooking, household cleaning and laundry difficult for him to achieve. TH reported improvement in safety around the home - he is safety conscious for about 24 hours, but tends to lose his phone and wallet if he goes out and he has been targeted at the shops previously;
i)TH assists GG to make choices when shopping because he would otherwise 'keep spending on the daily';
j)in addition to tactile preferences, GG has preferences when it comes to auditory processing and can struggle to process background noises (which he manages by wearing industrial earplugs); and
k)GG has adequate communication skills (in five languages), but struggles to build rapport and 'in understanding other perspectives, the size of the problem and overall theory of mind'.
Based on the above functional assessment, Dr JC assessed in the GP Report that he did not consider GG to have the cognitive capacity to make reasonable decisions about:
a)either simple or complex financial matters;
b)legal matters; or
c)his personal welfare and needs in relation to medical treatment, accommodation or services.
For completeness, I note that at the time of making the July Orders, the Tribunal had a medical report dated 20 December 2019 from another general practitioner, Dr RM, who:
a)indicated he had seen GG three times over the previous nine months;
b)stated that GG had both ASD and severe anxiety; and
c)assessed that GG was not capable of making reasonable decisions about financial or legal matters, but was unsure of his capacity to make decisions about his personal welfare.
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;[34]
[34] ts 6, 30 June 2021.
ii)appeared to listen to the conversation, keeping himself distracted, and indicating if he did or did not agree with something;[35]
[35] ts 17, 30 June 2021.
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';[36]
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';[37] and
iii)GG's language and interpersonal communication domains are 'definitely impaired';[38]
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;[39] 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.[40]
[36] ts 5, 12, 30 June 2021.
[37] ts 12, 30 June 2021.
[38] ts 13, 30 June 2021.
[39] ts 16, 30 June 2021.
[40] ts 15, 30 June 2021.
The assessments contained in each of the OT Report, the GP Report of Dr JC and the medical report of Dr RM were summarised and put to Dr VW (noting that he had not had regard to them in forming his opinion). Those assessments did not change his views. He explained this by saying that:
a)when GG saw Dr RM, he would have been experiencing changes in his living arrangements and this may have affected his functioning; and
b)as to the OT Report (and therefore the GP Report which relied heavily on it), much of that assessment seemed to reflect GG's language and communication impairments, not his intellectual ability.
TH's own evidence and submissions in relation to GG's capacity was to the following effect:
a)throughout the hearing she clearly and consistently asserted that GG is able to make his own decisions and choices, particularly in relation to accommodation, contact and services. For example:
i)in terms of cancelling (or, as it turns out, suspending) services from FC, she indicated that this was GG's choice; and
ii)similarly, when the meeting between the parties occurred at GG's residence on 19 March 2021, she indicated that the reason that discussions were held through the screen door, with the Delegated Guardian and FC representatives on the outside, was that GG did not want them in the house;
b)however, she is noted in the OT Report to have reported that GG's anxiety and sensory preferences impact on his functioning. This was consistent with TH's statements and questions during the hearing; and
c)in relation to GG's support services, she indicated that:
[His] NDIS plan isn't based just on what he likes. And because then if that was the case, he would just go to movies every time and wouldn't be taught any independent living skills and so on and so on.
Finally, I note that GG was invited and encouraged to participate in each of the two days of hearing (by telephone), but was only willing or able to do so on a limited basis. On each occasion, TH indicated that he preferred to be in a different room and she sought his input on a couple of occasions. On one of those occasions, on the first day of hearing, he expressed that:
a)he wanted a particular support worker from FC (MN) back;
b)sincerity is important to him;
c)he is happy with where he is living; and
d)he felt 'all right' about seeing a doctor (Dr VW) to be assessed.
The above evidence needs to be assessed against the criteria for appointing a guardian under s 43(1)(b) and an administrator under s 64(1)(a). The meaning given to, and the application of, those provisions are considered below, commencing with the single capacity criterion relevant to administration.
Administration s 64(1)(a)
Before an administration order may be made, s 64(1)(a) requires that the Tribunal must be satisfied that the proposed represented person 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[.]
The meaning and application of s 64(1)(b) was comprehensively considered by the Full Tribunal in the leading decision FY,[41] in which it:
a)held that the Tribunal would need to be satisfied not only of a person's inability to make reasonable judgments about their estate, but also that such inability was causally connected with a mental disability;[42] and
b)construed 'estate' as meaning the aggregate of a person's property, their assets and liabilities, and in practice encompasses the entirety of their real and personal property and all of their financial affairs.[43]
[41] [2019] WASAT 118; (2019) 98 SR (WA) 190 (FY) (Justice Pritchard P, Ms F Child M and Dr J Caunt Sess M). See also LP at [53]-[55], [193]
[42] That causal connection to be established on the 'practical application of ordinary causation principles': FY at [75]; RK [2021] WASAT 13 at [55].
[43] FY at [54].
Whether a person is unable, by reason of a mental disability, to make judgments about their estate involves both objective and subjective tests.[44]
a)What a person's circumstances and estate are, and therefore what decisions the person needs to make about their estate, is a subjective test.
b)Whether a person has the ability to engage in a particular mental process to make a judgment is an objective test. In FY, the Full Tribunal commented[45] that:
An individual's ability to make reasonable judgments in respect of their estate requires that they have, amongst other things, the ability: to understand the need for, and sources of, income available to them; to understand the value of any income received relative to items of expenditure; to identify and calculate necessary expenditure for day to day living, together with expenditure for longer term financial objectives and discretionary items; to devise a budget so as to be able to live within their means; to identify and to assess the financial implications of particular items of expenditure or of financial decisions (for example whether to enter into contracts such as those for the purchase of a phone, household items, a car, or a house); to organise their affairs so as to be able to meet debts as they fall due; and to identify and implement problem solving strategies for resolving any unexpected financial issues.
[44] FY at [52]; FS [2007] WASAT 202 (FS) at [106], [110]; Public Trustee (WA) v Brumar Nominees Pty Ltd [2012] WASC 161 at [45].
[45] FY at [53].
As to whether a person has a 'mental disability', that term is nonexhaustively defined in s 3(1) as including 'an intellectual disability, a psychiatric condition, an acquired brain injury and dementia'.
In FY, the Full Tribunal construed 'mental disability' in accordance with the following:[46]
[46] FY at [25]-[32].
a)The inclusive nature of the definition of mental disability means that the ordinary meaning of the term 'mental disability' remains relevant. The ordinary meaning of the term in the GA Act contemplates:
i)a person's mind being affected by an impairment, incapacity or inability to function in a manner, or within a range, considered normal, or which is objectively measurable; and
ii)that a mental disability may manifest in a variety of ways, including as a disturbance or limitation in a person's thought processes or their cognitive ability, in their perceptions of reality, emotions or judgments, in disturbed behaviour or in learning difficulties.
b)The term expressly encompasses certain recognised medical conditions or diagnoses which may result in some impairment in the functioning of a person's mind.
c)However, nothing in the definition requires a finding of any recognised medical condition or disorder. The underlying cause of a person's mental disability may not be entirely clear, or susceptible to a particular medical diagnosis, but the existence of the mental disability may be beyond doubt.
d)There is no particular qualifying medical or scientific benchmark for a mental disability. A person's mental ability or inability may be located at an infinite number of points along a spectrum, and may involve different aspects of cognitive functioning.
e)'Mental disability' expressly includes an 'intellectual disability', which in turn contemplates that a person's power to understand or reason is affected by an impairment, incapacity or inability to function in a manner which is outside the normal range, or which is objectively measurable.
f)There is no requirement that a 'mental disability' be permanent (so that an impairment need not be either longstanding or ongoing to fall within the parameters of the term).
As will be explained further below in connection with guardianship, there is a distinction between capacity to make reasonable judgments about matters relating to one's estate on the one hand and, on the other hand, the ability of a person to make certain specific decisions or to express their views and wishes.[47]
Guardianship s 43(1)(b)
[47] See [62] below. The GA Act operates in relation to administration in a manner similarly responsive to these latter abilities: see GA Act, s 4(7); s 70(e).
As noted above, before a guardianship order may be made, the Tribunal must be satisfied of the matters in s 43(1)(b).
The whole of s 43(1) is expressly stated to be 'subject to' s 4. Reading those two provisions together, it is clear that:
a)unlike sub-sections 4(3)(a), (b) and (d), the language of s 4(3)(c) (being in terms that a person is presumed to be capable of 'managing his own affairs') does not explicitly correlate with any of the language of s 43(1)(b) (or s 64(1)(a)); and
b)for a guardianship order to be made in respect of GG, I must find that he is:
i)incapable of looking after his own health and safety[48] in which respect he is expressly presumed to be capable under s 4(3)(a);
ii)unable to make reasonable judgments in respect of matters relating to his person[49] - in which respect he is expressly presumed to be capable under s 4(3)(b); or
iii)in need of oversight, care or control in the interests of his own health and safety or for the protection of others[50] – in respect of which there is no explicit presumption under s 4(3).
[48] GA Act, s 43(1)(b)(i).
[49] GA Act, s 43(1)(b)(ii).
[50] GA Act, s 43(1)(b)(iii).
Recently, in EW[51] the Full Tribunal considered the nature and operation of s 43(1)(b) generally, stating:
a)the absence of capacity to make decisions, as a prerequisite for the appointment of a guardian, underlies s 43(1)(b) of the GA Act; and
b)s 43(1)(b) deals with the question of capacity in a global sense, by reference to a person's ability to make judgments about personal matters generally, rather than by reference to making particular kinds of decisions (although evidence of a person's inability to make particular kinds of decisions may, of course, inform the Tribunal's assessment of whether the presumption of capacity has been overcome in a particular case).
[51] [2021] WASAT 111 (EW) (Justice J Pritchard President, Mr J Mansveld SM, Dr L Farrell S Sess M) at [39]-[40].
Turning to each of the three limbs of s 43(1)(b), it is plain that each is slightly differently directed.
a)The first limb responds to a functional incapacity specifically, the inability to 'look after' one's own health and safety.
b)By way of contrast, the second limb is directed specifically to an inability to make reasonable judgments, those judgments pertaining to any or all of the 'matters in relation to his person'.
c)The third limb is phrased as being directed to a 'need' for oversight, care or control.
Each of the first and the third limb have a particular focus on matters of health and safety.
The second limb:
a)is broader as to the nature of the matters in respect of which a person's abilities are assessed - being all ‘matters in relation to his person’. These would necessarily include (without limitation) the matters dealt with in s 45,[52] being decisions about medical treatment; where and with whom to live (whether permanently or temporarily); with whom to associate; whether to work and what kind of work to engage in; education and training; and commencing, defending and participating in legal proceedings (other than in relation to the person's estate; and
b)is focused on a particular kind of ability, being to 'make reasonable judgments'. The latter phrase refers to the same kind of reasoning ability as is contemplated in s 64(1)(b) and should be interpreted consistently (albeit with appropriate recognition that such ability is to be applied matters relating to the person, rather than their estate).
[52] Noting that s 45 deals with matters that may be decided by a guardian on a represented person’s behalf.
Drawing on the interpretation and approach in FY, a person's ability to make reasonable judgments about matters relating to his person is to be assessed:
a)on both an objective and a subjective basis;
b)in light of the particular personal needs and decisions that the person may be called upon to make (including by reference to all of the kinds of decisionmaking functions contemplated in s 45); and
c)in light of the matters identified, whether the person has the ability to understand the information relevant to those kinds of decisions, retain and weigh up that information, to appreciate in broad terms the consequences of their decisions; and be able to implement those decisions (for example, by being able to identify, remember and plan the necessary steps).
The meaning and application of the third limb, in s 43(1)(b)(iii), has been the subject of consideration and differing views in previous matters before the Tribunal.
a)In Ms G,[53] the Tribunal:
[53] [2017] WASAT 108 at [33]-[48] (Mr J Mansveld SM, Ms H Leslie M, Dr F Ng S Sess M). See also T [2018] WASAT 128.
i)observed the lack of correlation between the language of this limb and the presumptions in s 4(3);
ii)construed the presumption in s 4(3)(c) as bolstering and expanding the other presumptions in s 4(3) - and therefore as being directed to the kinds of capacity dealt with in s 43(1)(b)(i)-(ii) and s 64(1)(a), and being unconnected with s 43(1)(b)(iii);
iii)found that the disjunctive use of the word 'or' in s 43(1)(b) and language of sub-section (iii), being the only limb to be cast in terms of need rather than incapability, supported the view that need alone (including the need to protect another person) was a sufficient basis upon which to make a guardianship order.
b)In KRM,[54] the Tribunal (differently constituted) commented (obiter dictum) that:
i)it is clear, from the context of the GA Act as a whole, that one must overcome the presumption of capability prior to considering the question of need in relation making a guardianship order; and
ii)construing s 43(1)(b)(iii) such that need alone (including the need to protect another person) would be a sufficient basis upon which to make a guardianship order would render the presumptions of capability in s 4(3) redundant, and is therefore 'patently wrong'.
[54] [2017] WASAT 135 (KRM) (Ms C Wallace SM, MN Connor M, Dr E Isaachsen S Sess M) at [19]-[20].
The differences between the views expressed in Ms G and KRM are, to my mind, perhaps less stark than they first appear, and are capable of resolution.
I construe s 43(1)(b)(iii) as follows.
a)It is plain from the disjunctive use of 'or' that each of the limbs of s 43(1)(b) has a distinct meaning and that each would be capable of enlivening the power to make a guardianship order (subject of course to the question of need being satisfied).
b)That is not to say, however, that each should be construed in isolation, or that there could be no overlap in their application. Having regard to the immediate context of each limb, their grouping together in the statute suggests that they should be read together and each will give colour to the proper construction of the other.
c)Read together, it is apparent that each of the three limbs of s 43(1)(b), in the context of the GA Act (including the presumptions in s 4), is directed to the inability of a person to make and execute decisions about matters relevant to their personal welfare.
d)I do not consider that s 4(3)(c) is wholly unconnected with s 43(1)(b)(iii), or that it is possible to construe s 43(1)(b)(iii) as responding to a perceived need to intervene in such choices as a person has the ability to make and execute, even if those choices threaten the health or safety of that person or another person. Such a construction is not in accordance with the context and purpose of those provisions.
e)Notably, the long title of the Act includes that the Act is 'to provide for the guardianship of adults who need assistance in their personal affairs, [and] for the administration of the estates of persons who need assistance in their financial affairs'. In that light, the presumption in s 4(3)(c) that a person can manage their own affairs is to be construed as a broad presumption against the need for guardianship and administration.
f)Further, it is instructive to consider the composite term 'in need of oversight, care or control'. The ordinary meaning of 'oversee' means to direct, supervise or manage.[55] 'Manage' in turn means 'to take charge or care of' and 'to handle, direct, govern, or control in action or use'.[56] In my view, there is clearly a relationship between the presumption that a person can manage their own affairs and the need for oversight, care or control.[57]
g)Accordingly, 'need' in this context is to be construed in a manner reflective of the 'mischief' to which it is directed, being the incapacity of a person to manage their own affairs. It is not a self-standing ground for intervention.
h)The composite phrase 'need for oversight, care or control' is directed to a person having a corresponding functional incapacity. That is, in relation to matters about personal health and safety, that the person concerned is unable to be self-directed and to exercise control (to take care of themselves or avoid putting others at risk), or to make and execute[58] decisions about their own care.
i)Further, the language of the provision is widely cast. Unlike s 64(1)(a), it is directed to the consequences of (that is, the needs arising from) a person's functional incapacity, rather than to any particular cause of it. Accordingly, it is certainly capable of responding to any cause of a person's need for oversight, care or control, including (for example, and without limitation) an inability to regulate one's behaviour or emotions and disorders of thought or mood, whether permanent or temporary and whether arising from neurological, intellectual, psychiatric, organic, chemical or unknown causes. It is the person's functional incapacity that must be established on the balance of probabilities, [59] not the cause.
[55] Macquarie Dictionary (2020): 'oversee'.
[56] Macquarie Dictionary (2020): 'manage'.
[57] The former presumption is broader in scope than, and corresponds in part with, the need in question.
[58] Execute in this context refers to exercising self-direction and executive function; that is, the ability to plan, focus attention, remember instructions, and juggle multiple tasks successfully.
[59] As to which, see [31] above.
Returning to s 43(1)(b) generally, as noted in EW, the question of capacity is a global assessment. That is, it responds broadly to the need for a guardian.
The more specific ability of a person to make particular decisions, or to express their view and wishes about those decisions, is catered for by various other features and requirements of guardianship under the GA Act. Notably, where the presumption of capacity has been rebutted (in a global assessment):
a)the question of whether a guardian is needed, and the decision making authority assigned to the guardian, must be decided so as to impose the least restriction on the person's freedom of decision and action, noting that a plenary guardian may not be appointed if the appointment of a limited guardian would be sufficient to meet the needs of the represented person;[60]
b)the GA Act specifically contemplates that a represented person (as opposed to a proposed represented person) may be capable of expressing their views and wishes at the time that decisions are being made about their welfare under or in the course of making a guardianship order;[61] and
c)a guardian is required to act in the best interests of the person in respect of whom they have been appointed, which obligation includes acting, as far as possible, in such a way as to encourage and assist the person to develop and exercise such capacity as they may retain or be capable of developing, and in consultation with the person.
[60] GA Act, s 4(5)-(6).
[61] GA Act, s 4(7); s 51(e).
Accordingly, construing s 43(1)(b) in context, it is clear that a distinction is to be drawn between:
a)on the one hand, a person's ability to:
i)make some specific, limited decisions about personal matters; and
ii)to arrive at and convey views and wishes about matters relevant to their personal wellbeing; and
b)on the other hand, capacity, which is a broader assessment (being, in relation to guardianship, the converse of the matters set out in s 43(1)(b)).
Findings in relation to GG's capacity
I find that GG is able to formulate, and with appropriate support to communicate, his own views and wishes about his affairs. For example, he was able to express his preference for a particular support worker in the hearing. Further, a range of other evidence is to the effect that he seeks out and is able to pay to copy materials of interest in the library, selects and enjoys movies, and manages small daytoday purchases.
However, I also find (on the basis that I feel an actual persuasion on the balance of the evidence before me) that:
a)the presumptions that GG can manage his own affairs, and can make reasonable judgments in relation to his estate and in respect of matters relating to his person, are rebutted;
b)GG is incapable 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;
c)GG is unable to make reasonable judgments about matters relating to his person; and
d)GG is unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to his estate.
I do not consider Dr VW's evidence to preclude (or, in large part, to be inconsistent with) such a finding. This is because his opinions were:
a)based on a very limited interaction with GG, in a clinical setting (which on his own evidence was a challenging environment in which to properly assess a person's functional capacity);
b)not informed by the assessments of other health and allied health providers;
c)premised strongly on his assessment that GG does not have an intellectual impairment which, even if accepted, is narrower than the question of capacity. Even on his own evidence, Dr VW notes that functional capacity includes domains of intellect, language and communication (that latter two of which he assessed as being 'definitely impaired'); and
d)appear to be directed to the question of GG's ability to form and communicate his views and wishes, and to the issue of whether orders are needed, rather than to the kinds of capacity that correlate with s 43(1)(b) and s 64(1)(a). For example, in relation to GG's ability to manage complex affairs, Dr VW speaks to GG's high level of trust in his family, and his perceived lack of vulnerability given TH's emotional warmth and integrity. In relation to his ability to make decisions about legal and personal matters, he refers to GG's ability to communicate his needs and to 'contribute to' decisionmaking.[62]
[62] See [34] above.
To the extent that Dr VW's opinion might be understood as supporting a finding that GG has functional capacity[63] (as opposed to purely intellectual capacity), that view is contradicted by other (mutually consistent) evidence, notably including:
i)the detailed functional assessment contained in the OT Report (which included in the assessment information provided by TH about GG's functional capacity) which identifies areas in which GG is unable to manage his own personal affairs and financial decisions;
ii)the SP Report which provides evidence in a nonclinical setting that is consistent with the assessment contained in the OT Report; and
iii)TH's own evidence that she and her daughters support GG in the management of his affairs, including his living and rental arrangements and his support plans. It is illustrative that TH's evidence in relation to GG's support plan and preferred support worker was that it would not be appropriate for his support to respond only to GG's views and wishes, but needed to include the development of independent living skills. (which he currently lacks) and to encourage him to become familiar with and adapt to dealing with a range of people.
[63] Being such capacity as is the converse of findings under s 43(1)(b) and s 64(1)(a).
The weight of the evidence is that GG lacks the ability to exercise self-direction and executive function - that is, the ability to plan, focus attention, remember instructions, and juggle multiple tasks successfully.
I am satisfied that he could not independently manage tasks, and that he lacks the ability to make reasonable judgments[64] about, his financial affairs. For example, in relation to budgeting, the evidence is that GG's views and wishes in the moment drive his spending and that he is unable to manage his money to meet his broader, longer term needs.
[64] In the sense referred to in FY, as to which see [47] above.
Further, I am satisfied that that inability is materially caused by a mental disability, notwithstanding that the evidence as to GG's precise diagnosis is unsettled. As Dr VW stated, and I accept, GG is a complex case. It seems relatively uncontentious that GG has, and that his capacity is impacted by, ASD. Whether he is impacted by other contributing factors is yet to be resolved. As noted above, it is not necessary for a diagnosis to be settled to arrive at the conclusion that a person has a mental disability for the purposes of s 64(1)(a). Importantly in the context of Dr VW's evidence, the definition of mental disability includes, but is not limited to, intellectual disability.
Similarly, there is ample evidence to the effect that, although GG is able to state what he wants in his personal and living arrangements, he is:
a)unable to look after his own health and safety; and
b)in need of oversight, care or control in the interests of his own health and safety.
GG's sensory preferences mean that he is unable manage many activities of daily living necessary for his personal health and welfare. He is unable to manage meal planning or preparation, and does not manage laundry. When anxious, he can engage in self-harm and there is concern that he may not in those circumstances be able to be selfdirected in seeking and accessing medical care and treatment.
Further, the deficits in GG's executive function satisfy me that, although he can participate in his support planning, he would be unable to independently engage with NDIS coordinators to formulate a support plan, and then implement it. In that sense, he is also unable to make reasonable judgments about matters relating to his person.
Accordingly, I find that GG is a person for whom both guardianship and administration orders may be made.
Need for orders and suitability for appointment
Given that I am satisfied that GG needs support in the management of his financial and personal affairs, the remaining question is whether his needs can be met in a manner less restrictive than the imposition of guardianship and administration orders.
Prior to the appointment of a guardian and administrator, GG was supported principally by his mother, TH. She has submitted that:
a)there is no need for orders because she can support GG in his decisionmaking;
b)the April Orders and July Orders have been unduly restrictive on GG and his family; and
c)each person delegated by the Public Advocate and Public Trustee to carry out the functions under the April Orders and July Orders 'has been detrimentally negligent in the conduct and performance of their duties'.
I understand her position also to be that if orders are to be made, then she should be appointed guardian and administrator.
The issues of need and suitability are therefore to be addressed together. At the heart of each of those matters is whether TH or an independent appointee should make the decisions and arrangements that GG cannot.
Relevant to any appointment, the principal obligation of any guardian or administrator is to act in the best interests of the represented person.[65] Without limiting the breadth of that obligation, guidance is given in relation acting in the best interests of a person, in terms that as far as possible the appointee should act:
[65] GA Act, s 51(1) and s 70(1).
(a)as an advocate for the represented person;
(b)in such a way as to encourage the represented person to live in the general community and participate as much as possible in the life of the community;
(c)in such a way as to encourage and assist the represented person to become capable of caring for themself and of making reasonable judgments in respect of matters relating to their person;
(d)in such a way as to protect the represented person from neglect, abuse or exploitation;
(e)in consultation with the represented person, taking into account, as far as possible, the wishes of that person as expressed, in whatever manner, or as gathered from the person’s previous actions;
(f)in the manner that is least restrictive of the rights, while consistent with the proper protection, of the represented person;
(g)in such a way as to maintain any supportive relationships the represented person has; and
(h)in such a way as to maintain the represented person’s familiar cultural, linguistic and religious environment.[66]
Does GG need a guardian and, if so, in respect of what matters?
[66] GA Act, s 51(2) and s 70(2).
In the OPA Report, the Delegated Guardian reports that:
a)no accommodation or medical treatment decisions have been made under the current orders (noting that although GG has had regular appointments with his GP, the Delegated Guardian has not been contacted). However, she states that there is still a need for an independent guardian to make these decisions, citing GG's ongoing need for medical treatment and a lack of stability in his rental accommodation and uncertainty about who resides with him from time to time;
b)a range of decisions have been made in relation to services on GG's behalf, which included entering a service agreement with FC, reviewing GG's support services in line with NDIS funding, and engaging or attempting to engage in functional assessments of GG to continue to review his need for service. She assesses that GG has an ongoing need for an independent guardian decisionmaker to navigate the NDIS system and to secure ongoing access to services;
c)no contact decisions have been made under the current orders (because priority has been given to meeting GG's need for support services), but GG's father has expressed a desire to reunite with his son and this gives rise to a need for an independent guardian to make decisions in that regard; and
d)there may be a need for restrictive practices as part of a behaviour support plan for GG, and this would require authority under a guardianship order.
As to services, I am satisfied that GG has an ongoing need for services to respond to his complex and evolving needs, which include the need (as to which all parties appear to agree) to develop independent living skills, to safely access the community, and to regulate his anxiety and resulting behaviours that put him at risk of harm.
It is unfortunately clear that a great deal of conflict and distrust had emerged between TH, the Delegated Guardian and FC.
a)On the one hand, the Delegated Guardian and the representatives of FC have submitted that TH frustrates service provision and 'interferes' in the decisions made by the Delegated Guardian.
b)On the other hand, TH submitted that:
i)in relation to the Delegated Guardian, she and GG have experienced considerable difficulties with her communication, and with making or implementing decisions in a timely manner; and
ii)in relation to FC, that it is a small service provider which lacked the capacity to provide a level of support suited to GG's needs. She also asserted that GC raised his voice to the support worker MN in GG's presence [67] and that this upset GG (and led to his decision not to have FC continue as service provider, or to allow GC into his house).
[67] This was denied by GC.
The Delegated Guardian's evidence included that the support coordinator for GG ceased her involvement in his care, advising the Delegated Guardian on 3 February 2021 that she was unable to continue given TH's 'difficult behaviour' which was resulting in cessation of services and utilisation of GG's funding on managing the relationship rather than delivering services to GG.
Noting the ongoing difficulties in securing and maintaining suitable levels of service, and the need for decisions to be made about a behaviour support plan for GG, I do not consider that those needs could be appropriately met in the absence of a guardianship order.
Similarly, both TH and BG gave evidence that demonstrated a difficult family history, and the lack of contact between BG and GG over the last eight years. In light of that history, I consider that decisions about any future contact will need to be made by a guardian.
Clearly, GG continues to require medical treatment. In the absence of guardianship orders, TH would be the 'person responsible' to make treatment decisions on his behalf,[68] and it is apparent that despite the current orders she has been performing that function. There is little to suggest that his medical needs have not been appropriately attended to. Indeed, it appears that despite a number of earlier changes to his treating practitioners, GG now has a fairly settled and trusting relationship with Dr MM and that progress has been made in managing his anxiety.
[68] Being GG's nearest relative who maintains a close personal relationship with him: GA Act, s 110ZD.
Similarly, there is little to suggest that GG's current accommodation is other than suitable, or that there is any intention to move him away from it. TH gave evidence that although she and her husband discussed with GG the possibility of him moving to the regional location where they live, he has not wanted to do so and they would not therefore propose changing his current arrangement whereby they share the rental expenses of the unit in which he lives, and various family members stay with him to support him. GG expressed he is happy living where he is, and no party has suggested that GG's current living arrangements are not suited to his needs.
Based on the current arrangements, I am satisfied that, on balance, GG's needs in terms of his medical treatment and living arrangements may be met in a manner less restrictive than the making of orders (and therefore that guardianship orders are not required in respect of those matters). That view is subject to two important qualifications:
a)first, that information about the identity of any medical practitioner or allied health practitioners is made known to GG's guardian; and
b)similarly, that access to and details about GG's accommodation is given to GG's guardian,
so that the guardian is able to make and effect decisions about what services GG may require.
If informal arrangements for GG's accommodation and medical treatment frustrate the ability of the guardian to determine and implement appropriate support services for GG then those arrangements would not be adequate to meet GG's needs, and that would give rise to a need for guardianship orders to be made in relation to those functions.
To give efficacy to the services function, the guardian is also to be clothed with the authority to seek and obtain disclosure of GG's health information from any person or entity who provides or has provided health services, including allied health services, to him.
Who should be appointed?
In relation who should be appointed as GG's guardian, s 44 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.
I accept that TH is devoted to her son, genuinely cares for his wellbeing, and makes considerable personal efforts to support and advocate for him.
Nevertheless, there is a body of evidence which demonstrates that TH has been unable to engage in a cooperative and constructive manner with a range of service providers, or with others appointed to support GG's needs, including in managing disagreements in a manner that promotes GG's best interests (notably, to optimise his NDIS funding to provide support services him).
By way of example, TH's contends that:
(a)the service providers, SJ, have been 'fraudulent' (both in relation to their provision of services and in relation to making the application that resulted in the April Orders);
(b)'government staffers' engaged in serious misconduct by 'knowingly and willingly using their positions to support the fraud'; and
(c)every trust manager and guardian appointed to act under the April Orders and July Orders has been 'detrimentally negligent' in the performance of their functions.
Even accepting that she has experienced a range of differences, difficulties and frustrations in dealing with others involved in making and implementing decisions about GG's care, there is little to support such serious allegations in relation to all of the persons concerned.
I accept that TH perceives that her advocacy is impassioned, and that she seeks to promote and protect GG's interests. However, that advocacy appears to be so heightened at times that it promotes conflict (and the attendant consequences, including the use of support workers' time to manage the relationship rather than to deliver support to GG) and therefore does not operate to advance GG's interests.
Ultimately (and particularly in the context of limited funding being available), any guardian must be able to advocate constructively, and coordinate and work with a network of others to ensure that GG derives optimal benefit from the support services he needs (including in relation to any behaviour support plan) and receives funding for.
I consider that this is most likely to be achieved by an independent guardian; that is, the Public Advocate.
Similarly, I do not consider that TH would be able to make objective decisions about the contact GG might have with BG, and as such that function should also be exercised by the Public Advocate.
Does GG need an administrator for all or part of his estate and, if so, who should be appointed?
As to the appointment of an administrator, s 68 relevantly provides:
(1)An administrator (including a joint administrator) shall be
(a)an individual of or over the age of 18 years; or
(b)a corporate trustee,
who has consented to act and who, in the opinion of the State Administrative Tribunal
(c)will act in the best interests of the person in respect of whom the application is made; and
(d)is otherwise suitable to act as the administrator of the estate of that person.
…
(3)For the purposes of subsection (1), the State Administrative Tribunal shall take into account as far as is possible
(a)the compatibility of the proposed appointee with the person in respect of whom the application is made and with the guardian (if any) of that person;
(b)the wishes of that person; and
(c)whether the proposed appointee will be able to perform the functions proposed to be vested in the administrator.
…
(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 an administrator unless there is no other individual or corporate trustee who is suitable and willing to act.
Given the findings that I have made in connection with GG’s inability to make reasonable judgments in relation to managing his financial and legal affairs, I consider that GG needs a plenary administrator.
Taking account of the matters in s 64(3), noting in particular:
a)considerations of compatibility between the guardian and administrator; and
c)TH’s assertions that every person delegated by the Public Advocate has been detrimentally negligent in their role demonstrate an entrenched distrust that in my assessment make it unlikely that she could or would administer GG’s estate in a manner that gave effect to the decisions of the guardian,
I consider that the appointment of an independent administrator, being the Public Trustee, is in GG's best interests.
When should the orders be reviewed?
It is to be hoped that a period of stability might be achieved for GG, and that some improvement in his functioning may be achieved if an appropriate support plan is able to be agreed and implemented. It is likely that any such improvement will take time, and that GG's need for support in managing his affairs will persist in (at least) the medium term.
Accordingly, I consider it appropriate that the guardianship and administration orders be reviewed in two years' time.
Conclusion
I note for completeness that TH has contended that the April Orders resulted from a fraudulent application, and the serious misconduct of public officers who supported the fraud. Her contention appears to be that, since the April Orders were based on what she says is a false allegation (being that GG owed monies to SJ, in circumstances where she says no monies were owed and that money was in fact stolen from GG), then the continued operation of those orders is unsound.
In relation to that final contention, I note that, as outlined above,[69] a review of orders is not directed to the question of fault or error in their making, but is a hearing de novo in which the Tribunal must consider afresh whether there is a current basis for making orders.
[69] See [9] above.
For the reasons outlined above, I have found on the evidence presently available that there is a proper basis for making the orders that follow.
Orders
GAA 885 of 2021 and GAA 970 of 2021
The Tribunal declares that the represented person, GG is:
(a)unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all of his estate;
(b)in need of an administrator of his estate;
(c)incapable of looking after his own health and safety;
(d)unable to make reasonable judgments in respect of matters relating to his person;
(e)in need of oversight, care or control in the interests of his own health and safety; and
(f)in need of a guardian.
The Tribunal orders:
Administration
The administration order dated 3 July 2020 is confirmed in the following terms:
1.The Public Trustee of 553 Hay Street, Perth, Western Australia is appointed plenary administrator of the represented person's estate with all the powers and duties conferred by the Guardianship and Administration Act 1990 (WA).
2.The administration order is to be reviewed by 28 September 2023.
Guardianship
The guardianship order dated 3 July 2020 is revoked and substituted with an order in the following terms:
3.The Public Advocate of David Malcolm Justice Centre, Level 23, 28 Barrack Street, Perth, Western Australia be appointed as the limited guardian of the represented person with the following functions:
(a)to determine the services to which the represented person should have access;
(b)to decide whether to give or withhold consent to the use of any restrictive practices proposed in any behaviour support plan developed from time to time for the represented person in compliance with the requirements of the National Disability Insurance Scheme (Restrictive Practices and Behaviour Support) Rules 2018;
(c)to liaise with and make enquiry of and obtain health information relevant to the represented person from any person or entity that provides or has provided health services (including allied health services) to him; and
(d)to determine what contact, if any, the represented person should have with his biological father, BG, and the extent of that contact.
4.The Tribunal approves delegation by the Public Advocate of its functions as guardian of the represented person to an officer or employee employed in the Office of the Public Advocate.
5.The guardianship order is to be reviewed by 28 September 2023.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
DR B MCGIVERN, MEMBER
29 SEPTEMBER 2021