GMH

[2006] WASAT 182

GMH [2006] WASAT 182

Last Update :20/12/2011

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2006] WASAT 182
Published:
Act:	GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
Case No:	GAA:716/2006	Heard:	23 MAY 2006
Coram:	DR A MCCUTCHEON (SENIOR SESSIONAL MEMBER)	Delivered:	04/07/2006
No Pages:	8	Judgment Part:	1 of 1
Result:	Appointment of the Public Trustee as plenary administrator
Category:	B

Parties & CatchwordsOrders
Summary


Judgment

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : HUMAN RIGHTS ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : GMH [2006] WASAT 182 MEMBER : DR A MCCUTCHEON (SENIOR SESSIONAL MEMBER) HEARD : 23 MAY 2006 DELIVERED : 4 JULY 2006 FILE NO/S : GAA 716 of 2006 BETWEEN : GMH

Represented Person

Catchwords:

Guardianship and administration - Review of Administration Order - Capacity - Wishes of the represented person - Insufficient evidence to counter previous finding of incapacity - Appointment of Public Trustee as plenary administrator

Legislation:

Guardianship and Administration Act 1990 (WA), s 4,s 4(2), s 64(1), s 86, s 86(1)(b), s 90(1)

Result:

Appointment of the Public Trustee as plenary administrator

(Page 2)

Category: B

Representation:

Counsel:

Represented Person : Self-represented

Solicitors:

Represented Person : Self-represented

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

Nil

Case(s) also cited:

Nil

(Page 3)

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

1 On review of an administration order made on 3 October 2002 in respect of GMH (the represented person) the State Administrative Tribunal confirmed the appointment of the Public Trustee as his plenary administrator.

2 The represented person wanted the previous order to be revoked so that he might manage his own financial affairs, but provided no evidence of improvement in his medical condition or of his capacity to make reasonable decisions regarding his finances. Accordingly, the Tribunal found no grounds to overturn the decision made at the previous hearing, and advised the represented person that his application was unsuccessful.

Reasons for decision

3 These reasons relate to a review of an administration order made in respect of GMH (the represented person) on 3 October 2002 by which the Public Trustee was appointed his plenary administrator for a period of five years. The review was heard on 23 May 2006 and GMH was the applicant and the only party who attended.

Background

4 The initial application for the appointment of an administrator for GMH was made to the then Guardianship and Administration Board (the Board) in August 2002. At the hearing of that application (the initial hearing) on 3 October 2002, the Board considered medical evidence concerning GMH from a number of sources describing him as having a dysthymic disorder, cognitive impairment due to alcohol abuse, and an inability to manage his financial affairs in his own best interests. The Board found that GMH was a person for whom an administrative order could be made, that there was a need for such an order, and that there was no less restrictive alternative to the making of such an order, and appointed the Public Trustee plenary administrator of the estate of GMH.

5 The functions of the Board were absorbed by the State Administrative Tribunal (the Tribunal) in January 2005 and the files of the Board are now in the possession of the Tribunal.

6 On 12 April 2006, GMH made an application to the Tribunal under s 86(1)(b) of the Guardianship and Administration Act1990 (WA) (the GA Act) seeking review of the administration order.

(Page 4)

Legislation

7 Section 4 of the GA Act states the principles which shall be observed by the Tribunal in dealing with proceedings commenced under the GA Act. Subsection 2 provides:

(2)(a) The primary concern of the State Administrative Tribunal shall be the best interests of any represented person, or of a person in respect of whom an application is made.
(b) Every person shall be presumed to be capable of —
(i) looking after his own health and safety;
(ii) making reasonable judgments in respect of matters relating to his person;
(iii) managing his own affairs; and
(iv) making reasonable judgments in respect of matters relating to his estate,
until the contrary is proved to the satisfaction of the State Administrative Tribunal.

8 Before an administration order can be made, the Tribunal must be satisfied under s 64(1) of the GA Act that a person:

(a) is unable, by reason of mental disability, to make reasonable judgments in respect of matters relating to all or any part of his estate; and
(b) is in need of an administrator of his estate.

9 The powers of the Tribunal on review of orders are specified in s 90(1) of the GA Act as follows:

(1) Upon a review of a guardianship order or administration order, the State Administrative Tribunal may, as it considers necessary in the best interests of the represented person, confirm the order or by order —
(a) amend the order so as to make any provision that may be included in a guardianship order or administration order, as the case may be;
(b) revoke the order, or revoke the order and substitute another order for it; or
(c) without limiting paragraphs (a) or (b) —
(i) revoke the appointment of any guardian or administrator;

(Page 5)

(ii) appoint a new or additional guardian or administrator;
(iii) appoint an alternate guardian.

10 Once the presumption of capacity under s 4 of the GA Act has been set aside by the findings at a previous hearing, on review the Tribunal can only revoke an administration order if there is sufficient evidence that s 64(1) of the GA Act no longer applies to the represented person. If on review the Tribunal is to confirm the order the Tribunal must be satisfied that the represented person remains a person for whom an administration order can be made and that there is a need for an administrator to be appointed.

Evidence concerning capacity

11 For the present hearing there are a number of pieces of medical evidence relating to GMH which have been received since the previous hearing. The most recent is dated 21 April 2006 from Dr L Sam, general practitioner, who has known GMH for 6 years but is presently "not sure" if he is GMH's regular medical attendant. He last saw GMH on 6 April 2006 and is "not sure" if GMH has any cognitive impairment. He suggests an opinion be sought "from [GMH]'s psychiatrist". With regard to GMH's capacity at the time of the report, he regards GMH as capable of making reasonable decisions in relation to personal health care and living situation, but indicates he is "not sure" if GMH is capable of making reasonable decisions in relation to financial affairs. He comments further: "[GMH] looks okay. He may have a personality disorder" and "please see latest hospital report".

12 Accompanying Dr Sam's report were copies of two discharge letters from Royal Perth Hospital (RPH). The first refers to a 5 day admission to RPH from 30 March 2006 with "likely left foot cellulitis" associated with poorly controlled diabetes. GMH's listed past medical history includes the diagnoses "personality disorder" and "previous alcohol abuse". No formal assessment of capacity or mental state is mentioned. His compliance with medication at home is questioned in the report, and note is made that he discharged himself against medical advice (DAMA) without waiting for his antibiotic medication or letter to his GP. The second discharge letter refers to an admission to the psychiatric ward of RPH in January 2002 and describes the diagnoses of GMH on discharge as "(1) Cluster B personality disorder – deceitful, manipulative, (2) Alcohol abuse". This letter was not in evidence at the initial hearing.

(Page 6)

13 A report dated 9 February 2004 was received by the Board following enquiries by GMH in December 2003 and in January 2004, expressing a wish to seek a review of his administration order. No application for review was submitted to the Board by GMH on either occasion, but it seems likely the report was submitted in anticipation of a review hearing. This report was prepared by Dr Kevin Smith, acting consultant psychiatrist, after reviewing GMH's medical notes and discussing his case with other staff members at Mills Street Centre, Bentley. Dr Smith had not met GMH but describes him as having "been extremely impulsive in the past, accumulating significant debts, which he does not manage appropriately. His diagnoses include Major Depression with Psychotic Symptoms, Severely Impulsive Personality Traits, and Cognitive Impairment Secondary to Alcohol".

14 A report dated 3 October 2002, headed "Confidential summary for the purpose of administration hearing" was received by the then Board on 10 October 2002 and so could not be considered at the original hearing held a week earlier. The report is from Ms R Micha, clinical psychologist trainee, and Ms M Brice-Pozzi, senior clinical psychologist, and relates to a cognitive and personality assessment of GMH conducted over four occasions in August 2002 at Graylands Adult Psychiatry. The report states GMH "is currently functioning in the Extremely Low range of intellectual ability" and that "[GMH] is likely to experience difficulties in making decisions and solving problems involving planning, organisation and strategy development". The results "are suggestive of a deterioration in intellectual functioning".

Findings on capacity

15 The medical evidence before the Tribunal in the present hearing is consistent with the evidence presented at the initial hearing, notwithstanding some of the reports date back to 2002. The recent behaviour of GMH to discharge himself from RPH against medical advice is consistent with an impulsive decision which is not in his best interests. The current evidence of Dr Sam, while somewhat ambiguous, is insufficient to counter the previous finding of the Board that GMH lacks capacity. Overall, there is insufficient evidence to suggest there has been an improvement in GMH's cognitive function, or that he is now capable of making reasonable decisions in respect of his financial affairs.

16 The Tribunal finds that he remains a person for whom an administration order could be made.

(Page 7)

Need

17 GMH receives a Disability Support Pension and requires his rent to be paid and money to be made available for his necessities. He has no reliable family or social supports to assist him, and no less restrictive alternative is proposed.

18 The Tribunal finds GMH to be in need of an administrator.

The wishes of the represented person

19 GMH indicates that he is unhappy with the Public Trustee as his administrator. He wants more money to spend each week, and describes frustration in trying to arrange a discussion of his wishes with his trust officer. He is annoyed that a court fine for a traffic offence in 2001 was settled by the Public Trustee when he believes he had a defence to the charge.

Conclusion

20 The Tribunal finds insufficient evidence to overset the decision made by the Board at the initial hearing. GMH agrees that he will need to seek further medical reports to support a future review of the administration order, and intends to do this as soon as possible. He understands that his application for revocation of the administration order will not be successful on this occasion.

Orders of the Tribunal

21 On review under s 86 of the Guardianship and Administration Act 1990 of the Order dated 3 October 2002 concerning GMH, it is ordered that the Order be confirmed as follows:

1. The Public Trustee of 565 Hay Street, Perth, Western Australia be appointed plenary administrator of the estate of the represented person with all the powers and duties conferred by the Guardianship and Administration Act 1990 (WA).

2. The order is to be reviewed by 23 May 2011.

I certify that this and the preceding [21] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________

DR A MCCUTCHEON, SENIOR SESSIONAL MEMBER

(Page 8)