H
[2020] WASAT 75
•17 JULY 2020
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: H [2020] WASAT 75
MEMBER: MR J MANSVELD, MEMBER
HEARD: 19 JUNE AND 6 JULY 2020
DELIVERED : 15 JULY 2020
PUBLISHED : 17 JULY 2020
FILE NO/S: GAA 1527 of 2020
GAA 1771 of 2020
H
Represented Person
Catchwords:
Guardianship and administration - Mental disability - Autism Spectrum Disorder - Weight given to specialist evidence - Represented person denies having any disability - Need for a guardian and administrator
Legislation:
Guardianship and Administration Act 1990 (WA), s 4, Pt 5, Pt 6, Pt 7
Mental Health Act 2014 (WA)
Result:
Guardianship and administration orders made
Category: B
Representation:
Counsel:
| Represented Person | : | Ms F Lester |
Solicitors:
| Represented Person | : | Mental Health Law Centre |
Case(s) referred to in decision(s):
FY [2019] WASAT 118
REASONS FOR DECISION OF THE TRIBUNAL:
(The decision in this matter was delivered on 15 July 2020. The following reasons have been edited from the transcript to where necessary anonymise the names of the parties and to correct minor errors and omissions.)
Introduction
H is 25 years of age. He has recently been diagnosed with Autism Spectrum Disorder overtaking a previous diagnosis of schizophrenia.
H is currently subject to an administration order made on 9 December 2019. That order appointed the Public Trustee as the plenary administrator of his estate with a gifting authority of $100 per annum and a number of directions.
The administration order is due for periodic review.
An application for the appointment of a guardian for H has also been made by his mother, S.
Both the review of the administration order and the guardianship application are to be determined in these proceedings.
The matters for determination fall under the Guardianship and Administration Act 1990 (WA) (the Act).
A hearing took place on 19 June 2020 and adjourned to enable H to be given time to instruct his legal representative from the Mental Health Law Centre.
At the time of the hearing on 19 June 2020 H was a patient in the mental health unit at a public hospital (hospital). He undertook to remain in hospital until he found suitable accommodation with the assistance of his mental health case manager (case manager). The treating psychiatrist, Dr B, said that if H was able to find suitable accommodation the treating team would not stand in the way of his discharge but would however monitor the situation.
A final hearing was held on 6 July 2020. By that time, with the assistance of his case manager, H had secured shortterm accommodation through Airbnb. The case manager was of the view that the accommodation costs were reasonable.
The hearing was attended by H, his counsel, H's parents S and B, Dr B, H's occupational therapist and case manager J, and DD the investigator with the Public Advocate.
The decision was reserved.
Relevant legislation
Guardianship and administration matters are considered under Pt 5, Pt 6 and Pt 7 of the Act.
The principles to be observed by the Tribunal are set out in s 4 of the Act.
Relevantly:
•The primary concern of the Tribunal is the best interests of H.
•In considering the applications the Tribunal shall, as far as possible, seek to ascertain the views and wishes H has expressed, in whatever manner at the time, or as gathered from his previous actions.
•H is presumed to be capable of looking after his own health and safety; making reasonable judgments in respect of matters relating to his person; managing his own affairs; and making reasonable judgments in respect of matters relating to his estate, until the contrary is proved to the satisfaction of the Tribunal.
•The Tribunal cannot consider appointing a guardian for H unless it is satisfied on the evidence that he is incapable of looking after his own health and safety; is unable to make reasonable judgments in respect of matters relating to his person; or is in need of oversight care or control in the interests of his own health and safety or for the protection of others.
•The Tribunal cannot consider appointing an administrator of H's estate unless it is satisfied on the evidence that by reason of a mental disability, he is unable to make reasonable judgments in respect of matters relating to all or any part of his estate.
•Mental disability is defined in the Act to include an intellectual disability, psychiatric condition, an acquired brain injury and dementia.
•If a finding of incapacity is made in respect to H the Tribunal must further determine whether he is in need of guardianship and administration orders. If the needs of H can be met in a manner less restrictive of his freedom of decision and action then orders should not be made.
•If the Tribunal decides that H is in need of guardianship and administration orders it must then 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.
•As to the authority given to a guardian, if a limited order is sufficient to meet the needs of H a plenary order should not be made. If limited guardianship and administration orders are made the orders must place the least restriction necessary on H.
•When reviewing guardianship and administration orders the Tribunal can relevantly confirm the orders, revoke the orders and substitute new orders for them or amend the orders.
The medical and allied health evidence
The following documents are before the Tribunal:
1)30 March 2020 – a diagnostic report from a Senior Clinical Psychologist (Clinical Psychologist);
2)18 May 2020 – a medical report from Dr B; and
3)19 May 2020 and 29 May 2020 a service provider report and submission from J.
I will now deal with each of the reports.
30 March 2020 diagnostic report from a Clinical Psychologist
The Clinical Psychologist notes that in 2016 Professor S (Psychiatrist) had assessed H. However, because of an absence of evidence supporting a clear developmental history of autism traits, a diagnosis of schizophrenia was preferred.
Earlier this year H was reassessed by Professor S given Dr B's suggestion that his psychotic features are related to substance use rather than a primary psychotic illness. More developmental evidence was provided by S.
The Clinical Psychologist interviewed both H and S on 25 February 2020.
The Clinical Psychologist states that there are seven DSM5 (Diagnostic and Statistical Manual of Mental Disorders) criteria for Autism Spectrum Disorder in two domains: first, social communication and interaction and secondly restricted, repetitive patterns of behaviour, interests or activities.
H was assessed as sufficiently meeting the requirements of both domains.
In respect of the first domain the Clinical Psychologist states as follows:
[H] HAS SIGNIFICANT DIFFICULTIES ENGAGING IN CONVERSATIONS, LIMITED NONVERBAL COMMUNICATION SKILLS, AND DIFFICULTY FORGING AND MAINTAINING SOCIAL RELATIONSHIPS. HE CONTINUES TO HAVE DIFFICULTY REGULATING HIS EMOTIONS AND HAS USED SUBSTANCES OVER LONG TERM PERIOD AS A WAY OF MASKING HIS DIFFICULTIES. BASED ON [H] AND HIS MOTHER'S REPORTS, BOTH EMOTIVE AND COGNITIVE ARE IMPAIRED
In respect to the second domain the Clinical Psychologist states:
EVIDENCE OF STEREOTYPIES, DIFFICULTY IN COPING WITH CHANGE, SOME RITUALS AND FIXATIONS DESCRIBED.
Under the heading 'Diagnostic Summary', the Clinical Psychologist states:
Based on the information provided by [H] and [S], and based on observation of [H] during interview, he is considered to meet six of seven criteria for Autism Spectrum Disorder on the DSM5, which is sufficient for a diagnosis of Autism Spectrum Disorder. Based on previous academic performance and current presentation, he is not considered to be at risk of an intellectual impairment. A language impairment was also not indicated.
His current profile of behaviours significantly impacts his functioning socially and he has been unable to form relationships or work due to his social and communication difficulties.
This clinical opinion has been ratified by psychiatrist [Professor] [S].
(Original emphasis)
The Clinical Psychologist notes that H continues to suffer from depression and anxiety and is at high risk of further psychotic episodes if he continues to use illicit drugs.
18 May 2020 medical report from Dr B, Psychiatrist
Dr B filed a medical report and gave oral evidence.
In the medical report Dr B states that H does not have a cognitive impairment however he suffers from Autism Spectrum Disorder which according to Dr B impacts on H's planning, judgment and reasoning capacity. H is also said to suffer from anxiety and has a co-morbid substance dependence.
Dr B considers the impairments as fluctuating.
Dr B states in his medical report that in the past six months he has noticed H struggling to make simple financial decisions such as managing a budget or paying bills and that he often makes impulsive decisions for non-essential items and impulsive plans.
Dr B assesses H as lacking insight into his illness and needing treatment. H is assessed as not having the capacity to decide his accommodation and he is said to remain ambivalent about any support services including an unwillingness to participate in the National Disability Insurance Scheme (NDIS).
In his oral evidence Dr B states that H's Autism Spectrum Disorder has an impact on daily decision-making and complex decision-making. H does not display rational planning abilities. Dr B considers that H is at the high end of the Spectrum however lacks social skills, sees things in rigid terms and has impaired executive function.
H is not currently prescribed any antipsychotic medication.
Dr B has formed the view that H is incapable of making simple financial decisions, complex financial decisions, dealing with legal matters, incapable of giving consent to his treatment and incapable regarding his accommodation and support needs.
Dr B has formed the further opinion that H is not currently capable of executing an enduring power of attorney or enduring power of guardianship.
19 May 2020 and 29 May 2020 - service provider report and submission from J
In addition to his reports J gave oral evidence.
In the submission from 29 May 2020, J says that H has had a recent admission to hospital following a violent outburst at his parents' home causing significant damage to the backyard including broken windows. H was said to report that this was an appropriate response to the guardianship application made by his mother.
The case manager states that H has a history of intimidating behaviours particular towards his mother.
At the time of the submission H was no longer welcome to live at his parents' home.
In his Service Provider Report the case manager states that H struggles to make simple financial decisions and is often impulsive in his purchase of non-essential things. H is said to be regularly short of money and will make assertive and demanding requests for money from his parents.
According to the case manager whilst H is able to report how he would manage a budget, he is unable to put such a plan into practice.
The case manager states that H is able to understand medical advice however is resistant to recommended treatment plans and does not regard or recognise his symptoms as being problematic.
H does not consider that he needs to be a participant in the NDIS. He believes he can manage his own life but in the case manager's view H has not shown insight into the level of support that has been provided by his parents.
In his oral evidence the case manager says that he has been assisting H find appropriate accommodation and that H has been open with him in these discussions. H is said to have independently searched for an Airbnb and has chosen one with reasonable costs.
The case manager says that because of the diagnosis of Autism Spectrum Disorder H is an automatic participant in the NDIS. However, H has decided there is no need for assistance from NDIS and is not willing to set goals in respect to it.
The parents
In her application for the appointment of a guardian S states that H lacks insight into his diagnosis and treatment. H does not believe he needs training in social and independent living skills. According to S, H does not have the skills to initiate or maintain a conversation and he does not want to pursue any training or further education.
S says concerns were raised when H planned a trip to New York in March 2020 unaware of the travel ban due to the COVID-19 pandemic. He was reported to have paid $516 for a fast track passport and this left no money for food or other travel expenses.
Until recently H was living in a granny flat on his parents' property. He moved there in June 2018.
S states that H has become socially isolated, bored and lonely and has not demonstrated the self-care skills and motivation to prepare his meals and maintain the flat in a liveable state.
S says that with the fresh diagnosis of Autism Spectrum Disorder, H is eligible for a range of services through the NDIS and the Autism Association however is unwilling to engage with either. He is unemployed and not undertaking any training or further education.
In her oral evidence S and B say they want H to get ahead but unfortunately he has not achieved the normal milestones of a young adult including the development of social skills.
S says that H functioned normally when he was a young child but had a setback when he went to school.
S sees the main issue as being H's drug dependence particularly marijuana and codeine (to which she says he was addicted) and that his current presentation is as a consequence of ongoing psychoses following his drug behaviour.
Public Trustee
The report of the Public Trustee trust manager states that there has been frequent contact with H regarding extra advances and frequent contact with S regarding H's accommodation and requests for extra funds. The trust manager notes a reported wish of H to travel alone to the United States of America and questions H's capacity to do so.
The order from December 2019 appointing the Public Trustee included a direction to allow for the purchase of a laptop computer to the value of $2,500. Discussions regarding the purchase are ongoing.
H's savings held by the administrator amount to $7,657, and he is in receipt of the disability support pension. He receives a fortnightly allowance of $600.
Public Advocate
The investigator from the Public Advocate submits that guardianship and administration orders could be made for H, however on his presentation it would be very difficult to give effect to any authority granted in a guardianship order. The functions that may fall under a guardianship order would be decisions around its accommodation, services to which he should have access and decisions around his education and training.
H
In the course of the hearing H interrupted the evidence of the other parties consistently in his stated desire to correct what he saw as inaccurate statements.
He states that he does not have any disability and that he participated in the assessment of the Clinical Psychologist and went along with its progression and conclusion simply because he wanted to maintain his disability support pension.
H states that he was incorrectly diagnosed with schizophrenia and he does not accept that he now has Autism Spectrum Disorder. He says that he is more intelligent than most people.
H states that he only applied to have the Public Trustee become the administrator of his estate because he wanted to have his parents removed from that role.
H says that in respect to the concern with overseas travel, that it was never his intention to go overseas; he simply wanted to obtain a passport.
H states that by his own actions he has succeeded in securing appropriate accommodation for the foreseeable future.
H says that he does not like his parents and questions their motives.
Counsel for H asked the Tribunal to consider not placing weight on the assessment of the Clinical Psychologist in light of H's evidence that he participated in the interview with her only to achieve a particular monetary result. Counsel submits that a proper assessment of H's abilities would likely involve a neuropsychological assessment but concedes that H is not at this time prepared to undergo such an assessment.
Counsel for H submits that he does not support the appointment of a guardian or administrator. H is simply seeking his freedom and independence and has not yet had a chance to prove himself as an adult. Counsel submits that some of H's reported actions, for example the state of the granny flat at his parents' property, could be considered the typical acts of a young person.
Counsel submits that H has the capacity to make his own decisions and the desire to do so whereas in the past that desire was not apparent.
Discussion of the issues
The weight of specialist evidence before the Tribunal supports the conclusion that H has been diagnosed with Autism Spectrum Disorder. This diagnosis is buttressed by the assessment of the Clinical Psychologist (endorsed as she reports by Professor S), and Dr B who has had the opportunity to develop a longitudinal perspective of H's mental state.
It is accepted that H does not have an intellectual disability. The specialist evidence is that the Autism Spectrum Disorder results in rigid thinking, impulsive decision-making, deficits in executive function (planning and organising) and deficits in social skills and communication.
I do not accept the submission that H purposefully skewed the result of the Clinical Psychologist's assessment to achieve a monetary benefit.
The preponderance of the specialist evidence and attendant clinical knowledge cannot in my view be discarded because of an assertion by H that he simply 'acted' in the role he set himself when assessed by the Clinical Psychologist.
As already stated, the opinion of the Clinical Psychologist is supported by Professor S who saw H in 2016 and again early in 2020 and Dr B who has participated in a lengthy process to particularise H's diagnosis after the initial diagnosis of a mental illness did not appear to fit H's circumstances.
I accept the evidence of S that for most of his young life H has led a mainly isolated existence. H has been largely dependent on his parents to meet his day-to-day needs and on the evidence it is not unreasonable to conjecture that he is wishing, as a young adult, to break away from that dependency. Unfortunately this is happening in a fractured and disjointed way because of the impact of the effects of the Autism Spectrum Disorder on his ability to progress his independence.
The trashing of the granny flat and backyard is perhaps indicative of the impulsive and unplanned way H appears to approach the problems in his life as he tries to assert his independence.
Although H has, with the assistance of his case manager, secured some shortterm accommodation, I am not convinced that he could manage on his own particularly given his view that he does not have any disability.
H has not to date lived independently for any length of time. He has not had to make his own way in the world. When he has tried to do so it has resulted in aggressive outbursts towards his parents and the need for hospital admission.
I am satisfied on the evidence that left to his own devices H would not be able to look after his own health and safety. He is clearly in need of oversight in the interests of his own health and safety. I am also satisfied that the impairments or deficits brought about by the existence of the Autism Spectrum Disorder and H's unwillingness or inability to accept those deficits (which would otherwise lead him to seek suitable support), means that he is not currently able to make reasonable judgments about significant personal decisions that need to be made by him. I refer particularly to the concerns surrounding his rigid thinking, impulsive decision-making and executive deficits.
Despite his impassioned opposition to any orders which limit his freedom of decision and action I find that it is in H's current best interests that a guardian be appointed to consider decisions around his accommodation now that he can no longer return to live at his parents' home, to consider what support services he should have access to and to consider any further education or training from which he might benefit.
The difficulty in giving effect to a guardianship order is not of itself sufficient reason not to appoint a guardian who ultimately must use his or her best endeavours to support H's safe progression into adulthood.
I am of the view that the limited guardianship order proposed is currently sufficient to meet H's needs. I have not included the authority to consent to treatment given that the main health issue appears to be H's mental health and this should be able to be considered under the Mental Health Act 2014 (WA).
I will appoint the Public Advocate as H's guardian with the stated functions.
H is currently under an administration order. The finding of incapacity that was made at the time of that order related to a diagnosis (now discontinued) of a mental illness namely, schizophrenia.
H has Autism Spectrum Disorder the effects of which have been abundantly documented and discussed. I am satisfied that the condition and its effects fall within the ambit of a mental disability as discussed by the Full Tribunal in FY [2019] WASAT 118 (FY) at [24]-[32].
The Full Tribunal said at [27]:
The ordinary meaning of the term 'mental disability' in the GA Act thus contemplates that a person's mind is affected by an impairment, incapacity or inability to function in a manner, or within a range considered normal, or which is objectively measurable. 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.
I adopt the reasoning in FY and find that H has a mental disability and by reason of that mental disability continues to be unable to make reasonable judgments in respect of matters relating to his estate which currently comprises cash funds of just in excess of $7,500 and an entitlement to the disability support pension.
I acknowledge the wish of H to prove that he is able to manage his own financial affairs (unfortunately he thinks he can do that now) and to give some substance to that wish I will direct the administrator to initiate a trial period at the administrator's discretion, for H to be allowed to manage the balance of his disability support pension after the payment of his accommodation costs.
I will otherwise reappoint the Public Trustee as H's plenary administrator with the direction for the trail period and a gifting authority of $100 per annum. I see no need to continue with the other directions that formed part of the order made on 9 December 2019.
Both the guardianship and administration orders will be set for review in 12 months.
Orders
GAA 1527 OF 2020
The Tribunal declares that the represented person, H is:
(a)unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all of his estate; and
(b)in need of an administrator of his estate.
The Tribunal orders:
Administration
The administration order dated 9 December 2019 is amended so that it now reads:
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 administrator is authorised to expend up to a total amount of $100.00 per annum on gifts on behalf of the represented person.
3.The administrator is directed to allow the represented person a trial of managing his disability support pension after the payment of his accommodation costs. The timing and duration of the trial is at the discretion of the administrator.
4.The administration order is to be reviewed by 15 July 2021.
GAA 1771 of 2020
The Tribunal declares that the represented person, H is:
(a)incapable of looking after his own health and safety;
(b)unable to make reasonable judgments in respect of matters relating to his person;
(c)in need of oversight, care or control in the interests of his own health and safety; and
(d)in need of a guardian.
The Tribunal orders:
Guardianship
1.The Public Advocate of David Malcolm Justice Centre, Level 23, 28 Barrack Street, Perth, Western Australia is appointed limited guardian of the represented person with the following functions:
(a)To decide where the represented person is to live, whether permanently or temporarily;
(b)To decide with whom the represented person is to live;
(c)To determine the services to which the represented person should have access; and
(d)To decide what education and training the represented person is to receive.
2.The Tribunal approves delegation by the Public Advocate of her functions as guardian of the represented person to an officer or employee employed in the Office of the Public Advocate.
3.The guardianship order is to be reviewed by 15 July 2021.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MR J MANSVELD, (MEMBER)
17 JULY 2020
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