HH
[2014] WASAT 142
•22 OCTOBER 2014
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: HH [2014] WASAT 142
MEMBER: MR J MANSVELD (SENIOR MEMBER)
HEARD: 23 JULY 2014
DELIVERED : 17 OCTOBER 2014
PUBLISHED : 22 OCTOBER 2014
FILE NO/S: GAA 3418 of 2013
GAA 3420 of 2013
MATTER :HH
Represented Person
Catchwords:
Guardianship and administration Capacity Need for orders Plenary administration order Limited guardianship order Suitability for appointment as guardian and administrator Turns on own facts
Legislation:
Guardianship and Administration Act 1990 (WA), s 3, s 4, s 17A, s 43(1)(b), s 43(1)(c), s 44, s 64(1)(a), s 64(1)(b), s 68, s 68(1), s 68(3)(a), s 84, s 90, s 97
Mental Health Act 1996 (WA)
Result:
Public Advocate appointed as limited guardian
Public Trustee confirmed as plenary administrator
Summary of Tribunal's decision:
A young man, who had moved to Australia in 2001 from Afghanistan with his father, has been under guardianship and administration orders since early 2011.
The young man had been diagnosed with a mental illness and an intellectual disability.
The young man's father has been initially appointed his guardian and administrator but in subsequent reviews had been replaced by the Public Advocate and the Public Trustee respectively.
The current proceedings involved a statutory review of the plenary guardianship and administration orders.
The Tribunal found that the circumstances of the young man had not much changed from the most recent review of the orders. His father, who was his primary carer, continued to have a problematic relationship with the young man's psychiatric team and the father had not cooperatively engaged with the Public Advocate and the Public Trustee. There was an ongoing concern that if the young man's father decided to take him to Pakistan or Afghanistan to visit family that the father would not give sufficient consideration as to whether it would be medically feasible at the time for the young man to undertake the journey or that he would sufficiently engage with the young man's treating team to plan for the travel.
The Tribunal determined that there was an ongoing need for orders but that the guardian no longer required plenary authority.
The Tribunal reappointed the Public Advocate as limited guardian but with limited functions and confirmed the appointment of the Public Trustee as plenary administrator.
Category: B
Representation:
Counsel:
Represented Person : In Person
Solicitors:
Represented Person : N/A
Case(s) referred to in decision(s):
MH and HH [2013] WASAT 59
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
HH is a 21 year old man who has been diagnosed with an intellectual disability and a mental illness. He and his father, MH, moved to Australia from Afghanistan in 2001.
In early 2011 MH made application for guardianship and administration orders under the Guardianship and Administration Act 1990 (WA) (GA Act) and was appointed HH's plenary guardian and plenary administrator on 18 April 2011. The orders were set for review in five years being the maximum period available under the GA Act (s 84).
In late 2012 a public mental health clinic (mental health clinic) applied to have the orders reviewed and on 22 January 2013 MH was removed as HH's administrator and replaced by the Public Trustee with a review set for two years. MH was reappointed as HH's plenary guardian but with a review date set in six months and a referral was made to the Public Advocate under s 97 of the GA Act requiring an investigation into whether the guardianship order was operating in HH's best interests.
MH applied for review of the orders made on 22 January 2013 pursuant to s 17A of the GA Act and on 15 May 2013 the Full Tribunal made orders removing MH as HH's guardian and appointing the Public Advocate as plenary guardian and confirming the appointment of the Public Trustee as plenary administrator. Both orders were set for review in six months.
The Full Tribunal published its decision in MH and HH [2013] WASAT 59 (MH and HH). That decision will be further referred to throughout these reasons.
HH appealed the decision of the Full Tribunal to the Supreme Court of Western Australia but subsequently withdrew his application in late 2013.
The current proceedings constitute the review of the orders made by the Full Tribunal on 22 January 2013.
The appeal to the Supreme Court of Western Australia delayed the review of the guardianship and administration orders. The review was part heard on 8 April 2014. At that date HH was an inpatient in a psychiatric hospital and I formed the view that due to his mental state he was unable to adequately participate in the proceeding. Further there appeared to be a conflict in the opinions of HH's treating psychiatrist and treating psychologist as to HH's capacity to make his own decisions. I adjourned the matter to a time when HH could contribute to the hearing and also to enable his treating psychiatrist and treating psychologist to give evidence.
The review of the guardianship and administration orders was heard on 23 July 2014 and the decision reserved.
The hearing was attended by HH; MH; the treating psychiatrist; the treating psychologist; KM, senior social worker with the mental health clinic; JH, delegated guardian with the Public Advocate (guardian); and, LC, legal officer with the Public Trustee (administrator).
What follows is my decision and the reasons.
Decision of the Tribunal
I have decided to reappoint the Public Advocate as HH's guardian but in a limited capacity. The functions given to the guardian will be to decide HH's living arrangements, his medical treatment and whether he is permitted to travel outside of Australia and the conditions under which any such travel can take place. I have decided to reappoint the Public Trustee as HH's administrator with plenary authority.
Both orders are set for review in two years.
The relevant legislation
The relevant legislation is the Guardianship and Administration Act 1990 (WA).
Section 90 of the GA Act enables the Tribunal, upon review of guardianship and administration orders, to amend the orders, revoke the orders or make new orders including revoking the appointment of any guardian or administrator, appointing a new or additional guardian or administrator or appointing an alternate guardian.
The GA Act requires the Tribunal to proceed through a number of steps in order to arrive at a decision about whether to reappoint a guardian and administrator for HH.
A finding must first be made about his capacity. The starting point is that HH is presumed to be able to look after his own health and safety or make reasonable judgments about his person and is able to make reasonable judgments about his estate (s 4(3), s 43(1)(b) and s 64(1)(a) of the GA Act).
The Tribunal must be further satisfied that there is a need for a guardian and administrator to be appointed. Orders should not be made if the needs of HH can be met by other means less restrictive of his freedom of decision and action (s 4(4), s 43(1)(c) and s 64(1)(b) of the GA Act).
If guardianship and administration orders are made the Tribunal must decide what should be the scope of those orders. If HH's personal needs can be met by the making of a limited guardianship order then a plenary order should not be made (s 4(5) of the GA Act). There is no such express restriction in the making of administration orders although any limited order made should reflect the needs of HH (s 4(6) of the GA Act).
If a guardianship order is made then the Tribunal must decide who should be appointed. Section 44 of the GA Act provides guidance to the Tribunal in the answer to that question. The Tribunal must be satisfied that the proposed guardian will act in HH's best interests; not be in a position where the proposed guardian's interests conflict or may conflict with his interests; and, that the person is otherwise suitable to act as guardian. Suitability takes into account the desirability of preserving existing family relationships; the compatibility of the proposed guardian with HH and his administrator; the wishes of HH; and, whether the proposed guardian will be able to perform the role that he or she is given. Much the same requirements apply for the appointment of an administrator although it is not expressly provided for the Tribunal to consider a conflict of interest that a proposed appointee may have with the interests of HH (s 68 of the GA Act).
The Public Advocate is able to be appointed HH's guardian only if it is determined by the Tribunal that there is no one else suitable or willing to undertake that role (s 44(5) of the GA Act). The Public Trustee consents to his appointment as administrator should the Tribunal similarly find that no other person is suitable or willing to be appointed to that role (s 68(1) of the GA Act).
When going through all the steps just mentioned the Tribunal must as far as possible seek to ascertain HH's views and wishes but ultimately must make a decision in what the Tribunal determines to be in his best interests (s 4(2) and s 4(7) of the GA Act).
HH's capacity, evidence and submissions
The treating psychiatrist states that HH is:
... in a situation of a resolving psychotic episode, not fully resolved, and it is my view that the impact of that part of his continuing psychosis is sufficient to impair judgment ... I do not regard that ... as necessarily a global impairment. (T:11; 23.07.14)
In respect to the intellectual impairment the treating psychiatrist states:
... In my view, and in my observations of [HH]'s conduct, there is certainly evidence for the described mild to moderate intellectual impairment or deficiency. It is unclear, as a result of that, whether [HH] has full capacity for the full range of judgments and decisions that he would need to make ... without wishing to be unclear, it does, I believe leave [HH] vulnerable to some sets of decision making, but not all decision making.
I believe that he would indeed be able to conduct, for the most part, activities of daily living, but at higher-order decisions ... I believe there could still be some effect of the mild to moderate intellectual impairment. (T:12; 23.07.14)
In a report from December 2013, the treating psychologist assesses HH as having largely resolved ('no longer clinically significant') what she describes as his 'former psychological disorders' they being the 'severe psychotic disorders and the severe autism'. The treating psychiatrist questions the diagnosis of autism and states he is unaware of that diagnosis ever having been made. He refers to the records of a child and adolescent mental health service which show that HH has '… an IQ of 60 which is defined as mild to moderate intellectual impairment' (letter of 11 April 2014).
The treating psychologist describes HH's intellectual impairment as 'lower than average intelligence' with the characteristics of cautiousness and lack of self-confidence to behave 'in a radical manner'. This she assesses as an advantage 'as it would preclude antisocial or dangerous behaviour'. Her overall assessment at the time of the assessment was that HH had sustained significant improvement in his functioning.
The treating psychologist's assessment from December 2013 was made prior to the relapse of HH's mental illness and his admission to a psychiatric hospital in March 2014.
In her oral evidence the treating psychologist agrees with the treating psychiatrist's assessment that HH has difficulty with higherorder decisionmaking and that he is guided by HH, that he 'looks to his father; his father will reply for him ...' (T:13; 23.07.14).
As regards HH's financial affairs, the treating psychologist states:
… as far as his finances … are concerned how much he needs to spend on going out or buying something he probably would need some guidance, let's say from his father. (T:15; 23.07.14)
MH states that prior to 2010 he was not aware of any problem with HH but ultimately realised '… there was something different about him' (T:21; 23.07.14). MH states that he had HH assessed and was told that HH had 'intellectual problems' and 'psychological problems' and, ultimately, schizophrenia (T: 21:22; 23.07.14).
MH says that he formed the view that the problems faced by HH were the result of abuse he suffered as a child and later in a psychiatric hospital.
MH states that in his view HH understands the value of money; that he can cross the street safely; that he knows all his relatives and that he is familiar with the area in which he lives. He is also in employment. MH states that HH attends his medical appointments and that MH sometimes goes with him to ensure that everything is going well.
MH states:
I think he can make his own decisions and he's capable of understanding what is happening around him … because he is quite clever. (T:25; 23.07.14)
The need for a guardian, evidence and submissions
The guardian states that he has consented to HH continuing to live with his father, MH, as well as consenting to HH's ongoing supported employment for two days each week. The guardian states that the question of alternative accommodation has been considered but determined as impractical given the view that MH would likely remove HH from any other accommodation.
In respect to HH's medical treatment, the guardian states that he has liaised with the treating psychiatrist regarding HH's compliance with the antipsychotic medication, Clozapine. The guardian advises that access of HH for treatment is largely dependent on MH and has a concern at what he takes to be MH's problematic acceptance of the existence of HH's mental illness and intellectual disability. The guardian states that MH has consistently expressed to him the view that HH does not suffer from these impairments.
The guardian reports an incident in March 2014 where HH attended the mental health clinic in some distress and was agreeable to voluntary admission to a psychiatric hospital. MH purportedly removed HH from the clinic prior to admission denying that HH was unwell. Subsequently, HH was apprehended by the police and was admitted to a psychiatric hospital as an involuntary patient pursuant to the provisions of the Mental Health Act 1996 (WA).
The senior social worker with the mental health clinic states that in March 2014, MH prevented the voluntary admission of HH when HH presented to the mental health clinic unwell and distressed. She was the one who had contacted MH when HH had presented at the mental health clinic and she states that MH did not accept that HH was unwell at the time.
According to the guardian, the issue of the proposed travel to Pakistan to visit family (see MH and HH at [46]), remains unresolved. The guardian states that he has attempted to address this matter with MH but without success except for a verbal response indicating that travel was no longer proposed.
The submission of the guardian is that the Public Advocate should be reappointed the guardian of HH with the functions of deciding where and with whom he lives (because of the concern HH will travel to Pakistan unprepared for the management of his mental illness), to consent to his treatment (because of MH's purported denial of HH's illness) and to act as next friend. The guardian seeks the latter function because of a letter received from a lawyer instructed by MH to request a reduction in the antipsychotic medication prescribed for HH and in respect to a claim for damages claiming negligence in the treatment of HH in a psychiatric hospital (see below).
The guardian states that HH has, on his own, been cooperative and engaging but will defer to MH when MH intervenes in a decision-making process. The guardian submits that whilst MH has demonstrated commitment to HH he is unable to distinguish between his own wishes and what is in HH's best interests because he makes decisions contrary to or without the consent of the appointed guardian.
The treating psychiatrist states that the treatment of HH's mental illness requires ongoing regular review. HH has responded to the Clozapine but has been subject to side-effects of the medication which prompted a planned reduction of the dosage but which then unfortunately led to a relapse of the illness in March 2014 requiring hospitalisation. The treating psychiatrist states that a further complication has arisen, that being a seizure suffered by HH in July 2014 which also required his hospitalisation. The treating psychiatrist opines that it remains difficult to maintain the stability of the medication regime for HH with the least side-effects to ensure remission and the absence of psychotic symptomatology.
The treating psychologist submits that if HH continues to live with MH, then MH should be able to make the 'higher order decisions' for HH (T:14; 23.07.14). She states that MH would have a better understanding of the cultural aspects of the decision-making for HH than a third party such as the Public Advocate.
MH is of the view that HH can make his own decisions. He states:
I don't feel that there is any need for him to have a [sic] guardianship. But if there is such a need and if the tribunal feels that there is such a need, I would like to take care of him and take care of all his administrative [sic] as well as as well as the medical and personal and everything that is involved with him, because he is my son and I know him very well. (T:27; 23.07.14)
MH states that for the previous three years he has been trying to convince doctors that the Clozapine has not been good for HH because of its side-effects and that the medication should be changed. He states that because of the complaints he has made about the mental health clinic and also the psychiatric hospital that it has become a 'tug of war' between him and the treating teams such that the treating teams are taking 'revenge' on him as HH's father.
MH disputes the guardian and senior social worker's interpretation of the events which led to HH's admission to a psychiatric hospital in March 2014. He states that HH had dropped something at his work because of the 'movements in his hand' and he was advised to see a doctor (T:32; 23.07.14). MH states that the hand movements were a sideeffect of the Clozapine and when he saw HH at the mental health clinic he was not psychotic. That, says MH, is the reason HH decided not to be admitted to hospital. They both went home but some days later the police arrived and took HH to hospital.
As regards the travel to Pakistan, MH states:
We wanted to go last year, which we couldn't do that. But we intend to go back. We don't know how things are going at the moment, so it's just put on hold ... in the future but not near future. (T:26; 23.07.14)
HH submits he can make his own decisions but would support the appointment of MH should the Tribunal decide to continue with a guardianship and administration order.
The need for an administrator, evidence and submissions
The administrator states that currently about $40,000 is held in cash funds for HH and that comprises his estate other than an entitlement to a disability support pension of $827 per fortnight. HH is given an allowance of $576 a fortnight but the administrator has little knowledge how that is expended. The administrator states that there has been some difficulty in establishing a budget because HH and MH '... were troubled by the appointment of an external party' (report of 24 March 2014).
The administrator states that statements of the bank account of HH into which his allowance is paid have been received and show that the allowance had accumulated over a period of time and that a withdrawal of $6,200 was made in March 2014.
The administrator states that an investigation was conducted into whether action should be taken on the complaint of MH that HH had been sexually assaulted in a psychiatric hospital in early 2011. The administrator states it was ultimately determined that there was insufficient evidence of negligence or breach of statutory duty to warrant issuing proceedings, and that further that no claim for criminal injuries compensation should be pursued.
MH is of the view that HH has a sound judgment about money matters but that if the Tribunal decided to continue with an administrator then, as his father, he would propose himself.
In respect to HH's allowance, MH states that HH pays $100 a week in rent and receives $100 in 'pocket money' (T:39; 23.07.14). MH states that he has been using his own money to pay for HH's needs and the withdrawal of $6,200 in March 2014 was reimbursement for expenditure over a period of time, 'so I withdrew the money for myself' (T:39; 23.07.14).
The guardian submits that the Public Trustee should be reappointed as HH's administrator because of a concern that MH might seek to access HH's funds to enable both of them to travel to Pakistan. MH refutes that contention and states that he has sufficient funds in Pakistan and Afghanistan. He cites the fact that he waited for two years before accessing HH's allowance for reimbursement in March 2014.
The decision of the Tribunal
In MH and HH, HH was found to have a diagnosed mental illness (schizophrenia) and a 'mild to moderate intellectual impairment' (the impairments) (MH and HH at [41] and [51]).
The evidence before me is consistent with that finding despite the treating psychologist describing HH's mental state in somewhat different terms (see above).
I accept the evidence of the treating psychiatrist that HH suffers from the impairments and that they fall within the definition of mental disability (s 3 of the GA Act). The diagnosis of the impairments is not challenged by any contrary medical evidence.
What remains at issue is the extent to which (if any) the impairments affect HH in the making of personal and financial decisions. There is not common ground in answer to that question.
HH submits that he is able to make his own personal and financial decisions as does MH. In my view the evidence does not support this position as it relates to HH's overall functioning.
The opinions of the treating psychiatrist and treating psychologist, which I accept, are congruent in that they both say HH is able to conduct himself in his daily activities but not in higher order decision-making which I take to mean those decisions which sit outside those prosaic judgments that everyone makes on a daily basis. Higher order decision-making in the case of HH includes, in my view, formulating and considering plans for future accommodation, weighing up the consequences of alternate treatments for his mental illness and deciding when and in what circumstances he might return to Pakistan to visit his family. It also includes being able to have an understanding of his income and expenditure and having an awareness of future needs. The more mundane decision-making is that described by MH as within HH's capabilities such as getting ready for and attending his supported employment, crossing the road safely, a familiarity with the area in which he lives and a knowledge of his relatives.
The evidence shows that HH does not make many decisions without deferring to his father, MH. This was also demonstrated in the way HH and MH gave evidence at the hearing. At one level this could be taken as HH simply accepting the higher authority of his father and that may well be a factor. However, I am satisfied on the evidence that fundamentally HH does not have the cognitive capacity and awareness to challenge his father's view of what is considered to be in his best interests. The events surrounding the hospital admission in March 2014 is one example and the fact that MH controls the allowances paid to HH by the administrator is another.
I am satisfied that as a consequence of the impairments that HH, if left to his own devices, is incapable of looking after his own health and safety and is in need of oversight or supervision. I am further satisfied that in the decisions which impact on HH's future needs, that he is unable to make reasonable judgments about his personal and financial affairs.
It seems to me that the situation has not much changed since the decision in MH and HH (see [44] - [46]).
MH continues to have a problematic relationship with the treating team of the mental health clinic. This remains significant because of the difficulty in keeping HH mentally stable and the regular reviews required whilst he is given Clozapine. On its face it is not unreasonable for MH to question the medication which is used to treat HH's mental illness, in particular the unpleasant sideeffects, however that questioning must occur in an environment of cooperation even if disagreements continue. Unfortunately MH remains largely antagonistic to HH's treatment and this cannot be in his best interests. Although in his evidence, MH accepted that there is something 'different' about HH, the fact that he continues to express to the guardian that HH does not have the impairments is of concern and works against MH having a formal role in deciding what treatment is best for HH.
MH has not engaged with the guardian about any travel that will involve taking HH to Pakistan or Afghanistan to visit family. As stated in MH and HH at [47] the question is not whether, as a matter of principal, HH should see his family in Pakistan of Afghanistan, rather how can his considerable medical needs be maintained in such an environment so as to ensure his health and safety are not subject to an unreasonable risk. MH says that the travel will occur but not in the near future. I am not satisfied that MH will, if overseas travel is planned as it appears it eventually will be, give sufficient consideration as to whether it would be medically feasible at the time for HH to undertake the journey or that he would sufficiently engage with HH's treating team to plan for the travel.
There is no dispute as to MH's commitment to HH and that as stated in MH and HH at [48] that he will:
… necessarily continue to play an important day to day role in the care of HH, and it is desirable that he do so.
However, I am not satisfied on the evidence that the hope expressed in MH and HH (see [54]) that MH would adopt a generally constructive approach to HH's treating team, guardian and administrator has materialised.
I accept that MH finds himself in a difficult position as he attempts to exercise what he sees as his authority as the parent of HH. However, it is the task of the Tribunal under the GA Act to make a judgment about what is in HH's best interests and in the current circumstances, as was the case when the decision in MH and HH was made in May 2013, I consider HH to be in need of a guardian and administrator and, further, that MH remains currently unsuitable to be given that role for the reasons already given.
The Public Advocate should be reappointed HH's guardian. Pursuant to s 4(5) of the GA Act, I am satisfied that a limited order is sufficient to meet his needs. The functions are those already discussed, namely the ongoing accommodation and treatment needs of HH and the decision about whether and in what circumstances he should travel outside of Australia. I am not convinced by the submission of the guardian that next friend authority is required particularly as it relates to questions of compensation. These are matters for the appointed administrator.
The Public Trustee should remain as HH's plenary administrator. Under s 68(3)(a) of the GA Act, the Tribunal is bound to consider the compatibility of an administrator with the appointed guardian. The evidence shows that MH has great difficulty in accepting the authority of the guardian and I am satisfied that if he were to be appointed the administrator for HH, he would attempt to countermand the authority of the guardian with his authority as administrator.
I will set the review of the guardianship and administration orders in two years in the hope that with further time the circumstances of HH will moderate.
Orders
Guardianship
On review under s 84 of the Guardianship and Administration Act 1990 of an order dated 15 April 2013 concerning the represented person, HH, heard before Senior Member J Mansveld on 17 October 2014
The Tribunal declares that HH;
(a)is incapable of looking after his own health and safety;
(b)is unable to make reasonable judgments in respect of matters relating to his person;
(c)is in need of oversight, care or control in the interests of his own health and safety; and
(d)is in need of a guardian
and the Tribunal orders that:
1.The order is revoked and a guardianship order in the following terms is substituted for it:
The Public Advocate of Level 2, International House, 26 St Georges Terrace, Perth, Western Australia be 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)Subject to Division 3 of Part 5 of the Guardianship and Administration Act 1990, to make treatment decisions for the represented person; and
(d)In relation to any proposed travel by the represented person outside of the Commonwealth of Australia:
(i)To decide whether or not the represented person is to travel outside of Australia and to decide the terms and conditions upon which the represented person is permitted such travel;
(ii)If considered necessary, to take possession of all passports issued to the represented person; and
(iii)To notify and liaise with relevant state, federal or consular authorities about the existence, nature and effect of this order so as to facilitate and give effect to decisions made under this order.
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.This order is to be reviewed by 17 October 2016.
Administration
On review under s.84 of the Guardianship and Administration Act 1990 of an order dated 15 May 2013 concerning the represented person, HH, heard before Senior Member J Mansveld on 17 October 2014
The Tribunal declares that HH;
(a)is unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all of his estate; and
(b)is in need of an administrator of his estate,
and the Tribunal orders that:
1.The order is confirmed as follows:
The Public Trustee of 553 Hay Street, Perth, Western Australia is appointed plenary administrator of the estate of the represented person with all the powers and duties conferred by the Act.
2.This order is to be reviewed by 17 October 2016.
I certify that this and the preceding [77] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR J MANSVELD, SENIOR MEMBER