IZ
[2022] WASAT 85
•25 JULY 2022
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: IZ [2022] WASAT 85
MEMBER: DR E MARILLIER, MEMBER
HEARD: 12 APRIL 2022 AND 25 JULY 2022
DELIVERED : 25 JULY 2022
PUBLISHED : 19 SEPTEMBER 2022
FILE NO/S: GAA 639 of 2022
IZ
Represented Person
DEPARTMENT OF COMMUNITIES - CHILD PROTECTION AND FAMILY SUPPORT
Applicant
KZ and SZ
Third Party
Catchwords:
Guardianship and administration - Whether need for oversight gives power to appoint guardian - Whether proposed represented person's decision demonstrates incapacity - Whether objectively unwise or less preferable decision rebuts presumption of capacity
Legislation:
Children and Community Services Act 2014 (WA)
Guardianship and Administration Act 1990 (WA), s 3, s 4, s 40, s 43, s 64(1)(a)
Result:
Guardianship application dismissed
Category: B
Representation:
Counsel:
| Represented Person | : | Mr T Andrews |
| Applicant | : | Ms J Buller and Ms I Petersen |
| Third Party | : | Mr B Soactar |
Solicitors:
| Represented Person | : | Andrews Legal |
| Applicant | : | State Solicitors Office |
| Third Party | : | Tang Law |
Case(s) referred to in decision(s):
FY [2019] WASAT 118
GG [2021] WASAT 33
MH [2022] WASAT 74
PG [2021] WASAT 81
REASONS FOR DECISION OF THE TRIBUNAL:
Background
IZ was 17 years old and in the care of the Department of Communities (Department), in a family placement living with her grandfather RH, when this application was made under s 40 of the Guardianship and Administration Act 1990 (WA) (GA Act). Initially the Department sought the appointment of both an administrator and a guardian for IZ, but they withdrew the application in relation to administration prior to the first hearing.
At the first hearing, the Department noted that a guardianship order can be made for someone found to be incapable of looking after his or her own health and safety, unable to make reasonable judgments in respect of matters relating to his or her person or in need of oversight, care or control in the interests of his or her own health and safety.[1] I note that where a person is 17 years of age but not yet 18 years of age, the Tribunal can make a guardianship order that would come into effect on their 18th birthday if it is satisfied that at that time any of the three conditions above will apply.[2]
[1] GA Act, s 43(1)(b).
[2] Ibid, s 43(2)(a).
The Department argued that it was possible to make a guardianship order without a recognised mental disability as is required for an administration order.[3] Properly, it acknowledged that such findings could only be made subject to s 4 of the GA Act, and particularly rebuttal of the presumption of capacity.[4]
[3] ts 9, 12 April 2022; GA Act, s 64(1)(a).
[4] GA Act, s 4(3).
Conflicting medical opinion regarding capacity had been received from the doctors who had most recently assessed IZ. At the first hearing only one doctor was available to give evidence. In circumstances (which I will detail later) where no party had a concern for IZ while she lived with RH, (and that appeared to be likely to continue to be the case), and where it was necessary for me to hear from both of the doctors (ideally concurrently), to determine whether the presumption of capacity was rebutted, I adjourned the matter until a date that was chosen to minimise disruption to IZ's schooling, to facilitate the attendance of both doctors and to permit formal neuropsychological testing of IZ's current capacity.
At the July hearing, having heard from the doctors concurrently, I was not satisfied that the presumption of capacity was rebutted, and I dismissed the application. Given the complexity of the matter, the serious concerns for IZ's health and safety and the importance of setting out why I found that I was not able to appoint a guardian for IZ, notwithstanding that such an order does not require a finding that the need for such an order arises by reason of a mental disability, I indicated that I would provide written reasons for the decision.
At the hearing, I asked IZ what she would like her 'code name' to be in the reasons, and she asked if it could be 'I'. Unfortunately, on reflection, that would be confusing, as it could be referring to her or used as a first person reference to the author of the reasons. I hope that she understands that I am trying to recognise another of her preferences in my choice of IZ instead.
My reasons for decision follow.
The principles to be observed
In making a decision the Tribunal must observe the following principles:
•the Tribunal's primary concern is the best interests of the person concerned;[5]
•every person is presumed to be capable of looking after his or her own health and safety, making reasonable judgments in matters relating to his or her person; of managing his or her own affairs; and of making reasonable judgments in respect of matters relating to the estate; until the contrary is proven to the satisfaction of the Tribunal; [6]
•orders shall not be made where there is an alternative means of meeting a person's needs that is less restrictive of their freedom of decision and action;[7] and
•the Tribunal must seek to ascertain as far as possible the views and wishes of the person concerned and take them into account.[8]
Chronology[9]
[5] GA Act, s 4(2).
[6] GA Act, s 4(3).
[7] GA Act, s 4(4).
[8] GA Act, s 4(7).
[9] Summarised from the Affidavit of RM sworn 3 August 2021 at Children's Court of Western Australia (Affidavit of RM).
Concerns about IZ's welfare were first raised with the Department in July 2020 by the owner of a dance studio (reporter) where IZ took lessons. Concerns included that she was dangerously thin, and additionally, in August, the reporter became aware that different dance studios had been provided with different dates of birth and IZ appeared uncertain how old she was. Enquiries by the Department revealed that IZ was 16 years old, rather than 14 years old as the reporter had been told.
Further enquiries with other dance studios where IZ took lessons revealed the same concerns about her weight, muscle strength and development, and also that inconsistent information was being provided about IZ's date of birth. Photographs and birth certificates discovered on investigation demonstrated IZ's appearance and the existence of birth certificates stating the incorrect birth year (which had been provided by IZ's parents).
The Department sought advice from the Child Protection Unit at Perth Children's Hospital (PCH), noting the photographs which showed IZ's physical appearance and the contrast from her allegedly same-age peers (who were in fact two years younger). PCH recommended IZ required medical assessment before attending further dance classes.
The Department had been in contact with IZ's father KZ since August 2020 (having had no response to attempts to contact her mother, SZ). In light of the PCH advice, KZ was contacted again in November 2020, and although he felt she had a good diet and had always been small, he agreed for IZ to attend a General Practitioner (GP) within a week to address the concerns and undertook to relay those results to the Department (also within a week). This did not occur although further reports of concern regarding IZ's health and appearance were received from the initial reporter and others. KZ informed the Department of the names of clinicians he said would review or had reviewed IZ. These clinicians had in fact not seen her when contacted by PCH and the Department.[10] KZ emailed the Department in November 2020 stating IZ weighed 42 kilograms.[11]
[10] Email of Dr AJ, 23 March 2021, found at Annexure K to the Affidavit of RM.
[11] Email of 30 November 2020, found at Annexure G to the Affidavit of RM.
In March 2021, PCH staff were asked for advice and were significantly concerned. They recommended that the GP review needed to occur by the end of the week, or else intervention action under the Children and Community Services Act 2004 (WA) would be required to ensure access to medical assessment and treatment for IZ.
IZ saw a GP (Dr AM) in early April 2021. Dr AM was told by IZ's parents that she was 14 years old (she was 16 years old, and in fact only weeks shy of her 17th birthday). She weighed 27.3 kilograms with a Body Mass Index of 12.5 and appeared severely malnourished.[12] Dr AM recommended attending PCH, but in the face of IZ's and her parents' reluctance and distress, blood tests and a follow-up GP appointment were negotiated instead. After further review, an emergency admission to PCH occurred.
[12] Contemporaneous clinical notes of Dr AM, 1 April 2021.
PCH Consultant Adolescent Physician Dr NS reviewed IZ and advised that the situation was a medical emergency due to severe malnutrition, the risk of cardiac arrest on exercise and need for careful refeeding which might necessitate intensive care unit monitoring.[13] IZ's parents did not accept that there was anything medically wrong with IZ despite multiple explanations, and IZ was brought into care.[14]
[13] Contemporaneous emails between PCH clinical team 6 April 2021 and 7 April 2021; Annexures M and N to the Affidavit of RM.
[14] Contemporaneous notes of meeting of 8 April 2021; Annexure O to the Affidavit of RM.
IZ was treated as an inpatient for 50 days, and then discharged into the care of extended family members under supervision of the Department (initial placement broke down and IZ subsequently moved to the care of RH). Ongoing follow-up occurred through the Adolescent Medicine Clinic, dietetics, a psychologist (IZ ceased seeing this clinician in October 2021) and later her GP. Her weight at discharge was 35 kilograms and she had grown 3.4 centimetres in height during the admission. IZ's goal weight was 45.5 kilograms.[15]
[15] Discharge summary, PCH, 26 May 2021.
IZ's parents are currently facing criminal charges relating to these events. Determination of those charges is not my role. However, the sequence of events is important in understanding the evidence in regard to IZ's current capacity, and what various parties argue in relation to whether:
•the presumption of capacity is rebutted because IZ's desire to return to live with her parents is evidence of an incapacity to look after her own health and safety, or to make reasonable judgments in matters relating to her person[16], and
•there is a need for a guardian to be appointed because of the above or a need for oversight, care or control in the interests of IZ's health and safety.[17]
The evidence before the Tribunal
[16] GA Act, s 4(3)(a) and (b); s 43(1)(b)(i) and (ii).
[17] Ibid s 43(1)(b)(iii) and s 43(c).
I have received and considered the following evidence:
•Medical Report of 9 February 2022 and clinic letters of 7 February 2022 and 13 June 22 and email to the Tribunal of 20 July 2022 of Dr NS (Adolescent Physician, PCH);
•Medical Report of 11 February 2022 and letter of 18 July 2022 of Dr KC (GP);
•Service Provider Report of 23 February 2022 and progress reports of 5 July 2021 and 8 November 2021 of clinical psychologist Dr RG;
•Service Provider Report of 10 February 2022 of LM (Acting Senior Child Protection Worker);
•Care Plan Meeting notes 14 October 2021;
•Care Plan Review Panel Hearing submission of RM (Acting Senior Child Protection Worker);
•Affidavit of RM sworn 3 August 2021 at Perth Children's Court including annexures (photos, birth certificate showing birth year as 2006, email trail between KZ and the Department in November 2020 where KZ gives names of practitioners he says have seen IZ and says she weighs 42 kilograms, Medicare records showing IZ has not been seen in two years between Nov 2018 and Nov 2020, contemporaneous notes of home visit 26 February 2021, email trail of March 2021 between the Department and PCH indicating need for medical review and possible admission, and recording paediatrician Dr AJ having discussed with the GP who KZ had asked to provide a letter saying IZ was fine without seeing her (which he refused to do), contemporaneous emails between PCH staff, the Department and Dr AM (GP) who eventually saw IZ in April 2021, and subsequent contemporaneous emails documenting the concerns and clinical findings documented in the chronology above, contemporaneous notes of the meeting with IZ's parents, PCH staff and the Department where the decision was made to take IZ into provisional protection and care, notes of multidisciplinary team meeting on 16 April 2021, correspondence and case summaries from PCH Child Protection Unit Paediatrician Dr KF, contemporaneous clinical notes of GP Dr AM, hospital records from IZ's birth and early childhood, vaccination history, occupational therapy report of GW of 20 May 2021, and discharge summary from PCH);
•birth certificate from Western Australian Register of Births, Deaths and Marriages with 2004 birthdate (provided by the Department and certified for accuracy on 19 April 2021 by the Registrar of Births, Deaths and marriages);
•academic reports (including from PCH education team and the School of Isolated and Distance Education (SIDE) where IZ now studies), dance examination reports and certificates, reference from piano tutor from when IZ was 8 years old, and home education moderation reports for the years prior to her hospitalisation;
•correspondence from SIDE school psychologist PS of 13 August 2021 and 30 June 2022;
•supervised contact visit report of 24 May 2021;
•bone densitometry scans of 7 April 2021(showing severe osteopenia) and 14 June 2022 (still osteopaenic but considerably improved in comparison – Z-score for total body -2.6 as compared to previous – 4.2 (where the bone density was in the lowest 0.1% of a population of people the same age and sex, more than 4 standard deviations below the mean, it is now in the lowest 1%));[18]and
•report of the Office of the Public Advocate (OPA) Principal Investigator Advocate DD of 19 July 2022
[18] See, for explanation of Z-score, Sheu A, Diamond T, 'Bone mineral density; testing for osteoporosis' Australian Prescriber 2016; 39:35-9, 5 January 2022, and for conversion of standard deviations into percentage Puiu, T, 'What does 5-sigma mean in science?', 28 January 2021,
Written submissions were received from IZ, RH, KZ and SZ.
Oral evidence and submissions were heard from Dr NS, Dr KC, IZ, RH, KZ, SZ and DD.
Is IZ capable of looking after her own health and safety and making reasonable judgments in respect of matters relating to her person?[19]
[19] GA Act, s 4(3)(a) and(b).
In weighing the evidence, it is important to be clear that it is IZ's current capacity that I would have to be satisfied was rebutted to permit me to then consider whether she was in need of a guardian. As the Tribunal has recently summarised in MH [2022] WASAT 74 (MH) at [130]-[131]:
130The statutory presumption of capacity constitutes the starting point in any application under the GA Act where the decision-making capacity of a person is in issue. In GC and PC the Tribunal observed:
The statutory presumption of capacity is a fundamental principle in the GA Act and serves to protect persons who are the subject of proceedings under the GA Act from having their decision-making capacity removed from them and a substitute decision-maker appointed for them under the Act. Because of the significant consequences for an individual of having their decision-making capacity removed from them and a substitute decision-maker appointed for them under the GA Act, clear and cogent evidence is required to rebut the statutory presumption of capacity.
131A person who is the subject of an application for guardianship or administration orders does not need to prove that they have decisionmaking capacity. The Tribunal starts from the position that the person has capacity (by virtue of the statutory presumption). That remains the position unless and until the evidence is sufficient to satisfy the Tribunal that the person lacks the relevant decision-making capacity. The standard of proof applied by the Tribunal is, of course, the civil standard. However, the significant consequences of a finding that a person does not have decision-making capacity are such that clear and cogent evidence will be required to establish the facts on which that conclusion depends, in order for the Tribunal to be satisfied, on the balance of probabilities, that the person does not have decision-making capacity
Psychologist Dr RG had not seen IZ since September 2021, so I did not give weight to her report in assessing IZ's current capacity.
Dr NS was involved in IZ's care from her admission to PCH in April 2021 and continued to provide outpatient care during 2022. She is a specialist paediatrician with expertise in management of eating disorders and malnutrition.
Dr NS expressed the opinion in her medical report of 9 February 2022 that IZ lacked capacity to make medical, accommodation or services decisions, because she had not formed her own opinions about the best approach to her health and was following her parents' beliefs around food and immunizations. She observed that IZ had been taught on the ward how to complete certain activities of daily living, and that IZ had made gains living with RH including cooking basic meals and shopping. I note that IZ contested the claims she needed to be taught skills on the ward and indicated that when she initially required refeeding via a nasogastric tube and was attached to equipment, she requested help (at times from her mother) to mobilise and complete personal hygiene as it was difficult to manage independently.
The Occupational Therapist (OT) report of GW from 20 May 2021 indicates 'significantly reduced community awareness and poverty of skill development in areas of self-care, home-maintenance and community access … which need to be managed as a functional disability' and that IZ was 'highly vulnerable to future neglect or abuse unless careful up-skilling … and safe, gradual exposure to the outside world and same-aged peers is facilitated by her carer'. Dr RG had made similar recommendations in her progress report of 5 July 2021, noting also at that time a need to develop critical thinking and reflection, and increased general knowledge.
Dr NS explained at the April hearing that IZ had continued to gain weight since discharge into the care of RH and had reached 42.2 kilograms in January 2022. Dr NS was concerned IZ had been reluctant to add many new foods, and to have immunisations (she had been fully vaccinated to age 6 and had none subsequently). IZ had still not reached her target weight, and Dr NS emphasised that her recovery was an ongoing process and she had concerns:
DR NS:So, I mean, it's difficult to know what IZ will do if she's not in the care of her grandfather where there's a lot of support to try new things, to increase her weight, to, you know, go shopping and go other things that we expect of an adolescent to do. So I don't know if that's answering your question.
DR MARILLIER: What I need to do is put it to you directly, Dr [NS]: is there evidence that IZ is not capable of making reasonable judgments about personal matters?
DR NS: I think IZ needs support to make decisions about personal matters, especially around weight increase, diet choices, exercise, all of those matters. I think she's – she's struggling even with the support of her grandfather to progress from a health side – a medical side.
DR NS: I think it comes from, you know, how she was raised at home and the beliefs around food and food choices and that she – that she's as a small child, that she was always very slim, that she shouldn't gain weight, that she should do extensive ballet and sport and – you know, exercise that was not beneficial. When we discuss her bone density and her severe [malnutrition] it didn't seem clear – the inside, that – how serious that is for the long term health of a young person, doesn't seem to really be understood.'[20]
[20] ts 11-12, 12 April 2022.
IZ's legal representative informed Dr NS that IZ's most recent weight at the GP was 41.8 kilograms, and she was now 157.7 centimetres tall. Dr NS was concerned as this was a loss, and the target weight of 45 kilograms was only on the third centile for IZ's height. She indicated that as well as the absolute value of the weight, issues such as IZ having regular periods, achieving normal bone density and being able to adjust her food intake according to exercise were important in assessing IZ's ongoing recovery.
IZ's legal representative informed Dr NS that IZ was now including dairy products in her diet and enjoying making pasta. IZ was taking iron, calcium and multivitamin supplements as recommended by the treating team.
Dr NS indicated that the plateauing of IZ's weight gain between January and April was concerning. She confirmed that IZ had significant malnutrition on admission to PCH, and still had further to go in recovery. Dr NS noted that a full energy-dense diet would increase IZ's weight more than what she was seeing currently.[21]
[21] ts 27, 12 April 2022.
The legal representative for the Department clarified with Dr NS the source of Dr KF's observation that IZ had very low adaptive functioning, with no medical reason identified. Dr NS explained this arose from the occupational therapy assessment while IZ was an inpatient. I note that this is therefore not a reflection of IZ's current functional capacity.
The legal representative for the Department confirmed that ongoing psychology input was important for IZ, and Dr NS agreed that it was and acknowledged that IZ had become uncomfortable seeing Dr RG and was now engaging with the educational psychologist at SIDE. Dr NS also confirmed that IZ had expressed the desire to return to living with her parents once she turned 18 years old.
KZ and SZ's legal representative asked Dr NS if her concerns would be alleviated if there were no possibility of IZ returning to her parents for the next few years, and she agreed she would then have no concerns.
I note Dr KF's report on behalf of the Child Protection Unit at PCH provided to the Department and to Police on 28 May 2021 is consistent with the Affidavit of RM and the chronology above. She reports that investigation found no medical cause for malnutrition. I detail the specific types of medical cause excluded in the paragraphs which follow.
The endocrinology team found on admission that IZ was prepubertal and had severe osteopenia, with no endocrine condition causing it. The osteopaenia was thought to be most likely due to malnutrition.
The immunology team found no features of immune disease that could cause malnutrition, and also no evidence of food allergies (IZ's parents had stated she was allergic to dairy and gluten, and the family are vegan for ethical reasons).
The cardiology team confirmed there was no cardiac disease causing malnutrition.
The psychiatry team had reviewed IZ and found there was no primary mental health condition to account for severe malnutrition (I note this means IZ does not have an eating disorder or other mental illness causing malnutrition).
Dr KF goes on to state that IZ was admitted with severe malnutrition, growth retardation, severe osteoporosis and delayed puberty, with marked delays in social and emotional functioning, without evidence of underlying cognitive impairment. Her opinion was that this was due to severe nutritional, medical, emotional and developmental neglect by her parents. Dr KF stated it was possible that IZ would suffer long-term physical and psychological consequences as a result.
I accept the expert evidence of the treating doctors including Dr NS and Dr KF regarding the diagnosis of severe malnutrition, the consequences of that diagnosis (in this case osteopenia, growth retardation and delayed puberty) and the long-term nature of both physical and psychological recovery.
I note that where there is clear evidence that there is no cognitive impairment or mental illness arising from or causing the harm IZ experienced, it was appropriate for the Department to withdraw the application for the appointment of an administrator. This is because it would require the Tribunal to be satisfied that IZ was incapable of managing her own affairs and making reasonable judgments about her estate[22] (that the presumption of capacity was set aside) and that this was by reason of a mental disability.[23] As observed by the Full Tribunal in FY [2019] WASAT 118 (FY), the definition of a mental disability is non-exhaustive, and includes an intellectual disability, a psychiatric condition and acquired brain injury and dementia:
[N]othing in the definition of 'mental disability' under the GA Act requires that a finding of the existence of a mental disability be based on a finding as to the existence of one, or more than one, recognised medical conditions or disorders. A finding that a person has a 'mental disability' may, of course, be referrable to the existence of one, or a combination of more than one, identified medical conditions. In other cases, 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.[24]
[22] GA Act, s 4(3)(c) and (d).
[23] Ibid s 64(1)(a).
[24] FY at [32].
The evidence above makes it clear that Dr NS' current concern about IZ's decision-making relates more to her vulnerability to influence by her parents than to an intrinsic mental disability, which is why it was appropriate to withdraw the administration application and why I gave leave for that to occur as I was satisfied it was not adverse to IZ's best interests.
The question that arises is whether a guardianship order can be made in IZ's case where in the absence of a cognitive impairment or a mental illness there remain concerns for her health and safety. In the face of Dr NS' continued concern for IZ based on her plateauing weight gain, reluctance to be vaccinated and ongoing wish to return to live with her parents (bail conditions permitting), the majority of the medical evidence before me in April indicated a concern that she may not be capable of looking after her own health and safety. However, Dr KC's report of 11 February 2022 stood in marked contrast, finding IZ had no mental disability and was capable in all areas of financial, legal and personal decision-making. Dr KC is a GP who began seeing IZ after her discharge from PCH and had seen her four times between September 2021 and January 2022 when she wrote the report. Unfortunately, there were no explanatory comments regarding how she had formed these views. On the hearing day the planned telephone attendance of Dr KC failed.
As I was unable to hear concurrent evidence as planned and given the legal representative for IZ indicated that he had been researching the possibility of formal neuropsychological testing of capacity for IZ (which had not occurred prior to hearing), I explored the option of adjourning the matter to permit me to hear the medical evidence supporting IZ's capacity and to allow further testing.
In the presence of bail conditions preventing IZ from living with her parents no party opposed adjournment, although IZ would have preferred a decision to be made immediately and the OPA investigator argued that the matter could be dismissed, providing evidence from documents which had not been filed with the Tribunal at that point which related to IZ's historical and recent academic, musical and dancing achievements. He indicated that during his interview with IZ he had found her thoughtful and assertive, and that many of the interpretations in reports from the hospital and the Department regarding her behaviour during her hospital admission were contested. He noted that in the Department's Care Plan review of January 2022 the panel commented 'IZ presented as a thoughtful young person who was able to express her views clearly. She said she has been traumatised by the events of last year. She expressed a view that her autonomy and rights to express her opinion have not been valued or understood.'[25]
[25] ts 66-67, 12 April 22.
The matter was adjourned and orders made reflecting that the documents could be provided to the nominated neuropsychologist. The Department agreed to meet the cost of the testing.
At the July hearing, no neuropsychological testing had occurred. There is no onus on IZ to prove she has decision-making capacity.[26] IZ had provided extensive written submissions to the Tribunal, as had RH, KZ and SZ, and I had updated written reports from Dr KC and Dr NS as well as the opportunity to hear oral evidence from them all. I had also received the documents regarding IZ's previous academic and other achievements, and updated school reports. IZ had undergone a repeat bone density scan, showing some improvement as detailed earlier.
[26] MH at [131].
Of note, approximately six weeks prior to the July hearing, the bail conditions had been varied, and IZ had moved back in with her parents.
Dr KC's written update of 18 July 2022 indicated IZ had been attending regularly every four to six weeks and was responsible and reliable in attending appointments and taking her vitamins. Her most recent weight was 42.8 kilograms. IZ showed a good understanding of her health (both physical and mental) and accepted and was working towards reaching a goal weight of 45 kilograms. IZ had booked to see a dietitian and a psychologist but was reluctant to disclose the details to Dr KC due to confidentiality concerns. IZ reported that since returning to live with her parents she had felt more settled, less anxious and stressed. She was continuing her studies at SIDE including attending in person once a week. Dr KC concluded that IZ was of sound mind and had capacity to consent to medical appointments.
In oral evidence Dr KC indicated that she also felt IZ had the cognitive capacity to understand risks and benefits and make a considered decision about where she lives, and that she is able to understand her own needs and identify and secure appropriate supports.
Dr NS gave evidence concurrently. In her written update, she indicated concern that IZ had not come in to see her in person, and she was concerned during Telehealth that someone else was in the room out of sight, and that IZ was reading answers off notes (and that her reported diet had not changed from what was reported previously). The letter stresses the importance of the dietitian and psychologist being provided with the full information regarding IZ's medical history to understand the complexity of the situation. In an email update to the Tribunal on 20 July 2022 Dr NS stressed that the improvement in bone density is due to IZ's initial admission and refeeding and her further increase in weight. She noted that IZ is still under minimum expected weight and it would have to increase to continue improvement in bone density.
In oral evidence, Dr NS noted her concerns that IZ was not seeing her face to face despite Dr NS' specific request. She indicated that it was now difficult to comment on IZ's capacity and wanted to know from Dr KC whether IZ was increasing her weight, food choices and variety, and what was happening with her education.
Dr NS observed:
I really want to comment on IZ. She has done incredible from, you know, the patient we admitted to PCH to who IZ is today, has been a lot of hard work. She is definitely more – she definitely can say what she wants. She shares a lot of her thoughts with me, and I think she's a very different person than what – who we met when she was admitted. She has been exposed to the world, she's going – she told me she's taking the bus to SIDE; she's doing the Pilates and the piano. She has not gone back to ballet, but I also want to commend her because that's – she is not at a place where she can do that yet.[27]
[27] ts 11-12, 25 July 2022.
In response to questions from the legal representative for the Department, Dr NS indicated that it would be preferable for IZ to be seen at the specialist clinic at PCH (which IZ had expressed reluctance to do at the April hearing due to bad memories from her inpatient time and also feeling too old for it as she is now 18 years old). Dr NS explained that the specialist clinic does see patients who are 18 years old due to their particular expertise. Dr KC indicated that she understood IZ's reasons and found the decision was not irresponsible, given that IZ was getting care through another practitioner and was compliant with advice.
Dr KC indicated that she would be happy to provide the medical history to allied health practitioners so long as IZ consented and indicated that at 18 years old and able to make her own decisions, Dr KC could not go against IZ's wishes. Dr KC had asked IZ for the details and IZ had responded:
For confidentiality reasons, I would prefer not to disclose the names of the dietician I have booked to see and the psychologist I have seen. As an 18 year old, I want this information to be confidential as these services are to help me and I don't want anyone else interfering with that.[28]
[28] ts 16, 25 July 2022.
Dr NS was extremely concerned that the dietitian would not be able to provide appropriate advice to IZ in the absence of complete and accurate knowledge of her history, and was concerned the types of comments that had been made by IZ and her parents to professionals early in the events detailed above (such as that the family have always been small) might mislead them. Dr KC acknowledged this risk and indicated that she herself had not been provided with a lot of the important background information, including why IZ had not been living with her parents.
Dr KC then said:
So I do – I agree with [Dr NS] that, you know, a sound plan has to be made in terms of moving forward, in terms of regular dieticians and followup. Whether that needs to be done with the Public Guardian potentially, maybe not. If IZ is keen to stay with her parents and actually have regular contact with me and not hide things, then I think it's more than likely she can actually move forward but that will probably – agreed. So the referrals will have to have the previous history on it, I think, and I think everyone will have to just be quite honest and actually disclose information rather than only selective information.[29]
[29] ts 17, 25 July 2022.
IZ indicated that her concern in sharing contact details had been that the Department might interfere, or that the material might come before the Tribunal. She indicated that she was willing to tell the psychologist and the dietitian her history, and that she was not opposed to Dr KC, her dietitian and her psychologist being able to speak to one another after the hearing.[30]
[30] ts 20, 25 July 2022.
IZ's legal representative noted that IZ had cancelled an appointment at the PCH clinic because correspondence was sent to RH after IZ had moved (resulting in short notice) and also that she wanted to have her bone density scan first and then her clinic appointment. I note that the email sequence was provided to me by RH and demonstrates appropriate and clear communication between IZ and various staff members at PCH.
Dr NS agreed that follow-up by Dr KC could be appropriate for ongoing management if IZ disclosed everything and Dr KC was able to communicate with the dietitian and psychologist.
IZ indicated that she would be happy to provide all the material in the hearing book to Dr KC, and she was happy for Dr KC to share that information with other professionals, but she wanted to talk to Dr KC about it first.
IZ, RH, KZ and SZ all gave evidence (written and oral) that IZ is making all her own appointments, transport arrangements and school arrangements. She is (and this is confirmed by the school reports and PS, the SIDE psychologist) completing two general and one vocational subject at Year 12 level and is doing well. She continues to attend school in person one day a week and interacts with her same-aged peers. She enrolled and voted in the recent election and received a high mark for schoolwork exploring contemporary political issues. IZ chooses and prepares her own food and takes the supplements recommended by her medical team.
RH gave the following evidence:
IZ lived in my house for nearly a year - 11 - over 11 months - and I think I was in a unique position [to] observe these far more than anyone else who had more occasional contact and - yes - the comment I made, I had that observation capability. She just consistently demonstrated she's extremely conscientious, bright, capable, responsible and a resourceful young woman who knows her own mind is feisty at times and clearly capable of looking after herself independently. I made it a point to always put questions and make her make decisions if there was sort of this or that or the other I said, 'IZ, it's your decision,' and then she not always made a decision straight away. She would go away and think about it and then make the decision whether it's about where we go from - where to go for a walk - we often used to go for walks together - where - what the best sequence of doing things is and she would think about it and come back with it[.]'[31]
[31] ts 43-44, 25 July 2022.
I am satisfied from the evidence above that IZ is making arrangements for her ongoing medical treatment with Dr KC, a dietitian and a psychologist. This has continued despite her return to live with her parents. She is taking the recommended supplements and although her weight gain has plateaued in recent months it is not falling. She is actively participating in her academic work and is making appropriate plans for her future (including acknowledging that she will not achieve direct university entry and will need to seek entry via a bridging course or alternative pathway).
I am satisfied that IZ has good rapport with Dr KC, and appropriately wishes to discuss issues which have arisen in the course of the hearing with her. IZ's caution in regard to disclosure is understandable in the context of the hearing process, although I also understand Dr NS' concern about the harm that would occur if full and accurate information is not shared with members of the treating team.
In considering whether IZ is capable of looking after her own health and safety, I am satisfied that she is. She is intellectually able to process complex information as demonstrated by her marks for recent work in English. She has engaged in education about nutrition and is eating a wider variety of foods (including dairy despite her preference for a vegan diet due to understanding the need to increase her weight and bone health). IZ has organised to see a dietitian and a psychologist of her choice. She has indicated a willingness to share the relevant information and sought orders from the Tribunal to permit the use of the documents in the Hearing Book for that purpose (which I made, as I am satisfied that is in IZ's best interests).
Although I share the concerns of the Department and Dr NS for IZ's health and safety (she is recovering from a life-threatening condition which requires ongoing attention to achieve an optimal outcome), this is not because IZ lacks the capacity to look after her own health and safety. Like other humans who have capacity, she may make decisions that others feel are less than optimal.
As the Tribunal has observed:
People with the capacity to make decisions as to their personal and financial affairs are entitled to make decisions which others may regard as unreasonable or unwise.[32]
[32] MH at [120], referencing FY at [73]; PG [2021] WASAT 81 at [92].
The Department argued at the April hearing that it was open to me to make a guardianship order for IZ as she was unable to make reasonable judgments in relation to her person and in need of oversight, care or control in the interests of her health and safety. It referred to Member McGivern's finding in GG [2021] WASAT 33 that each of the limbs of s 43(1)(b) can enliven the power to make such an order but that they should be read together.[33] It referred to the learned Member's observation that s 43(1)(b) generally considers the question of capacity as a global assessment.[34] They then quote the following passage:
[the provision] 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, not the cause.[35]
[33] GG at [60(a)-(c)].
[34] Ibid, [61].
[35] Ibid, [60(i)].
The Department argued that IZ's lack of insight into the reason for her admission and desire to return to live with her parents where Dr NS was concerned her progress would stall meant it was open to me to make a guardianship order.
At the July hearing, the Department argued that IZ was still a person for whom a guardian could be appointed, noting Dr NS' concern (in light of Dr NS' expertise and that she has been involved in IZ's care since her admission to PCH), that IZ needed ongoing support from professionals, those professionals need the full history, Dr KC acknowledged she had not had all of that information and agreed that the best place for IZ to have ongoing treatment was PCH. The Department expressed the fear that if Dr KC recommended that to IZ, IZ might no longer see Dr KC. In essence, the argument was that IZ's reluctance to share the details of her psychologist and dietitian with Dr KC prior to the hearing was evidence of incapacity.
I note that the following paragraphs from GG, which sit between those quoted by the Department, state:
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. 'Manage' in turn means 'to take charge or care of' and 'to handle, direct, govern, or control in action or use'. 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. The former presumption is broader in scope than, and corresponds in part with, the need in question.
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 selfstanding 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 decisions about their own care.[36]
[36] GG at, [60 (d)-(h)].
In MH, the Tribunal observes:
[in] so far as the GA Act requires the Tribunal to determine whether a person is incapable of looking after their own health and safety or unable to make reasonable judgments in respect of matters relating to their person, that judgment does not depend upon whether the Tribunal agrees or disagrees with a person's decisions [.][37]
[37] MH at [120].
In IZ's case, I find that while there is ample evidence of a reasonable concern held by the Department and the PCH team that IZ's health and safety are still at risk, there is an absence of clear and cogent evidence that she is incapable of looking after her own health and safety or of making reasonable decisions in respect of matters relating to her person. I find that she is actively managing her own affairs.
In the absence of evidence allowing the presumption of capacity to be set aside, the oversight and care which I trust will be provided to IZ by her extended family, her GP and other treating professionals must be provided on an informal basis. I hope they will encourage, inform and guide IZ in her ongoing recovery.
As I have found that the presumption of capacity is not rebutted, IZ is not a person for whom I can appoint a guardian. The application for guardianship is therefore dismissed.
The Tribunal made the following orders on 25 July 2022.
Orders
The Tribunal orders:
Guardianship
1.The guardianship application is dismissed.
2.Andrews Legal, the legal representative of IZ is authorised to provide a copy of the hearing book to IZ for the purpose of it being provided to her treating health professionals.
3.Written reasons will be provided.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
DR E Marillier, MEMBER
19 SEPTEMBER 2022