JK
[2021] WASAT 139
•19 MAY 2021
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: JK [2021] WASAT 139
MEMBER: MR J MANSVELD, SENIOR MEMBER
HEARD: 19 MAY 2021
DELIVERED : 19 MAY 2021
PUBLISHED : 21 OCTOBER 2021
FILE NO/S: GAA 956 of 2021
JK
Represented Person
Catchwords:
Guardianship - Intellectual disability - Gender Identity Disorder - Forensic history - National Disability Insurance Scheme - Guardian appointed
Legislation:
Criminal Injuries Compensation Act 2003 (WA), s 30
Guardianship and Administration Act 1990 (WA), s 4, s 97(1)(b)(iii), Pt 5, Pt 7
Result:
Guardian appointed
Category: B
Representation:
Counsel:
| Represented Person | : | N/A |
Solicitors:
| Represented Person | : | N/A |
Case(s) referred to in decision(s):
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
JK is 33 years of age. She has been diagnosed with Gender Identity Disorder and prefers the pronoun 'she' which will be used in these reasons.
JK is reported to have a low level of intellectual functioning.
At the time of these proceedings JK was incarcerated. She was on remand for matters related to previous convictions for criminal offences. JK has a forensic history relating to possession of child exploitation material.
On 9 March 2021 JK's mother, W, filed applications for the appointment of a guardian and the appointment of an administrator of JK's estate.
The applications were made pursuant to the Guardianship and Administration Act 1990 (WA) (GA Act).
One of the triggers for the applications was that JK was to receive criminal injuries compensation because of an assault whilst in prison. The criminal injuries compensation assessor had reportedly indicated that consideration would be given for the compensation to be held on trust by the Public Trustee pursuant to s 30 of the Criminal Injuries Compensation Act 2003 (WA) unless an administration order was made.
At a hearing on 22 March 2021 W was appointed JK's plenary administrator. An application for review of the administration order was subsequently made by the Public Advocate on 20 May 2021.
At a hearing on 8 June 2021 the administration order made on 22 March 2021 was revoked and substituted with an order appointing the Public Trustee as JK's plenary administrator.
Reasons were given for the orders made on 22 March 2021 and 8 June 2021 at the time of those determinations.
When the administration order was made on 22 March 2021, the application for the appointment of a guardian for JK had been adjourned and the application referred to the Public Advocate for investigation pursuant to s 97(1)(b)(iii) of the GA Act.
The hearing for the appointment of a guardian was held on 19 May 2021. Present at the hearing were JK who was legally represented, W and AF investigator advocate with the Public Advocate.
I appointed the Public Advocate as JK's limited guardian to make decisions concerning her living arrangements, to determine the services to which she should have access and to assist her to obtain the necessary psychological and/or psychiatric intervention concerning the diagnosis of Gender Identity Disorder.
The following are the reasons for that decision.
Relevant legislation
Guardianship and administration matters are considered under Pt 5 and Pt 7 of the GA Act.
The principles to be observed by the Tribunal are set out in s 4 of the GA Act.
Relevantly:
The primary concern of the Tribunal is the best interests of JK.
In considering the applications the Tribunal shall, as far as possible, seek to ascertain the views and wishes of JK as expressed, in whatever manner at the time, or as gathered from her previous actions.
JK is presumed to be capable of looking after her own health and safety, making reasonable judgments in respect of matters relating to her person, and managing her own affairs until the contrary is proved to the satisfaction of the Tribunal.
The Tribunal cannot consider appointing a guardian for JK unless it is satisfied on the evidence that she is incapable of looking after her own health and safety; is unable to make reasonable judgments in respect of matters relating to her person; or is in need of oversight care or control in the interests of her own health and safety; or for the protection of others.
If a finding of incapacity is made in respect to JK the Tribunal must further determine whether she is in need of guardianship and administration orders. If the needs of JK can be met in a manner less restrictive of her freedom of decision and action, then orders should not be made.
If the Tribunal decides that JK is in need of guardianship orders it must then decide what authority should be given to the guardian, who the guardian 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 JK, a plenary order should not be made. If a limited guardianship order is made the order must place the least restriction necessary on JK.
Medical and allied health reports
The Tribunal had been provided with a report from a psychologist from March 2019, a report from a neuropsychologist from November 2019 and a report from JK's general practitioner.
Psychologist report
Relevantly the psychologist stated that JK's capacity to exercise judgment and make good decisions was poor. JK was described as an ineffectual, socially inadequate person who had experienced social difficulties her whole life.
JK had been diagnosed with Gender Identity Disorder.
JK's family had a limited understanding of her various difficulties and therefore had not been able to provide her with guidance to engage in activities more suited to her age, emotional maturity and intellectual disability.
Neuropsychologist report
JK was said to demonstrate a low level of intellectual functioning which when added to her behavioural and social impairments significantly undermined her capacity to interact and behave at peer appropriate levels.
JK had been diagnosed with Gender Identity Disorder and intellectual impairment.
JK was said to be concrete in her thinking and with marked social immaturity. There was a strong suspicion of autism spectrum disorder.
The neuropsychologist opined that parental involvement did not appear suited to the level of supervision and support required by JK. JK was said to present as high risk for recidivism and would require a significant and integrated support network of multidisciplinary therapeutic inputs.
General practitioner
JK was assessed as having borderline intellectual disability and gender dysphoria. The view formed by the general practitioner was that JK lacked capacity to make decisions concerning her accommodation and support services, however, was unsure as to whether JK was able to make her own treatment (medical) decisions.
Other documents
Community Corrections (pre-sentence report from 2020)
This report noted that JK had been charged with being in possession of child exploitation material and was a recurrent offender.
The report noted a psychiatric assessment which had identified an additional diagnosis of autism spectrum disorder and a high risk of reoffending. JK was said to present with borderline intellect and Gender Identity Disorder.
The report referenced the assessed need for JK to live in fully supported accommodation.
National Disability Insurance Scheme (NDIS) Plan
The NDIS Plan before the Tribunal was current for the period September 2020 to September 2021 with the provision of $394,000 funding for JK's support needs.
Public Advocate report
The Public Advocate relevantly stated as follows.
JK had been charged with three counts of failure to comply with a prohibition order and one count of the breach of protective bail conditions. The charges were related to JK's previous convictions for which she had served periods of imprisonment. JK is a registered Child Sex Offender with lifelong reporting obligations.
The longest period of not breaching court orders was only 48 days.
JK was interviewed on 10 May 2021 in prison. JK was considered a protective person in prison due to her vulnerability.
JK told the Public Advocate that she would prefer the appointment of a guardian. The view of the Public Advocate however was that JK was already engaged with a significant network of service providers to support her in decision-making around her accommodation and support needs.
The support coordinator from NDIS told the Public Advocate that in her view JK was able to make her own decisions concerning accommodation and services with the support of service providers. The support coordinator considered there was an opportunity to build JK's capacity to make her own decisions.
A representative from the Sex Offender Management Squad (SOMS) voiced opposition to JK being released from prison without structure and were not supportive of JK returning to live with her mother on the basis that the risk of reoffending in that environment was too high.
The SOMS' representative told the Public Advocate that JK could be quite demanding and would try and remove service providers if there was a falling out.
JK's NDIS Behaviour Support Clinician (Clinician) told the Public Advocate she was unsure whether JK needed a guardian and said that it was difficult to determine her capacity without a functional assessment undertaken by an occupational therapist. However, the Clinician accepted that JK needed assistance. As with the SOMS' representative there was a concern that JK would simply remove support workers impulsively.
The submission of the Public Advocate having considered the various views gathered during the investigation was that given JK's significant network of support, the necessary oversight of JK's accommodation and services needs was already in place and that a guardianship order was not required in these areas of JK's personal life.
The Public Advocate submitted that JK needed a guardian to ensure access to appropriate counselling and support regarding her Gender Identity Disorder and to support her progress towards gender reassignment surgery.
The hearing
W's submission was that she be appointed JK's guardian as she considered herself the only person who had looked after JK and cared for her.
When it was put to W that the report of the psychologist and neuropsychologist had expressed concerns about the quality of family support and guidance, W said that she initially lacked understanding of JK's situation however had since gained the necessary knowledge.
W said that were JK to be granted bail she expected she would come to live with her and could do so if she was supported by services under the NDIS Plan.
W said that she accepted the diagnosis of Gender Identity Disorder which she said was made in 2013. W said that no one had contacted her about the condition, and nothing had yet been done though she did not want JK to have reassignment surgery.
W said that if appointed guardian she would support JK's wishes and that the decisions that needed to be made were effectively up to JK.
The Public Advocate confirmed the submission in the written report that JK's need for a guardian could be restricted to progressing her gender transition. She submitted that in her view W did not fully understand the diagnosis of Gender Identity Disorder and was not able to progress the wished for transition. JK was hoping to use the proceeds of her criminal injury compensation now under the control of the administration order appointing the Public Trustee, to pay for gender reassignment surgery.
JK said that she supported the appointment of a guardian for matters that W did not understand which was not restricted to the Gender Identity Disorder. JK said that she was confident that she would be granted bail and released to W's home. She wanted to plan for her future independence however this was currently difficult because of a housing shortage. JK accepted that she needed support through the NDIS and had had some discussions about obtaining her own accommodation with appropriate support.
Discussion of the issues
I accept the assessments and opinions presented in the psychology and neuropsychology reports. They are not inconsistent with the view formed by JK's general practitioner and the evidence of the parties.
It is common ground that JK is a person for whom a guardianship order can be made.
The evidence shows that JK is a vulnerable person, however by her actions she contributes to the vulnerability of others.
JK's circumstances are extremely difficult. She is often imprisoned because of her seeming inability to alter her behaviours. This inability is compounded by the fact that JK operates at a level of low intellectual functioning in an environment of her having to traverse the fraught terrain of her diagnosis of Gender Identity Disorder.
Although supported by W and through the NDIS, JK's situation appears to currently confound the ability of those supports to meet her extensive needs.
There is the risk that JK's cycle of offending and imprisonment will continue to blunt any opportunity to achieve a measure of maturity and the prospect of sustained community living albeit with necessary protections in place both for herself and others.
On all the evidence I am satisfied that JK is incapable of looking after her own health and safety and is in need of oversight, care and control in the interests of her own health and safety or for the protection of others. Her actions and their consequences, in light of her deficits in her intellectual functioning satisfy me that she is unable to make reasonable judgments concerning certain important personal matters.
I do not accept the position put by the Public Advocate that JK's current support network is sufficient to compensate for the deficits in her decision-making, noting an impulsivity on JK's part when dealing with support workers.
JK's life is significantly constrained by frequent convictions and imprisonment. In addition, there is an inability on her part to envisage an accommodation and support structure that will reduce the prospect of reoffending, a necessary condition to maintainable community living.
JK is clearly in need of a guardian to make decisions about accommodation and support matters. She is also in need of a guardian to assist in whatever must happen concerning the diagnosis of her Gender Identity Disorder.
The guardian cannot be W. Whilst I do not doubt her commitment to JK, I have considerable doubt as to her understanding of JK's practical and psychological needs and the requirement that a guardian must make decisions in JK's best interests, not solely a reflection of her wishes.
I will appoint the Public Advocate as JK's limited guardian in those areas of her personal life identified in these reasons. The review of the guardianship order will coincide with the review of the administration order appointing the Public Trustee.
Orders
The Tribunal declares that the represented person, [JK] is:
(a)incapable of looking after her own health and safety;
(b)unable to make reasonable judgments in respect of matters relating to her person;
(c)in need of oversight, care or control in the interests of her own health and safety or for the protection of others; 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 assist the represented person to obtain the necessary psychological and/or psychiatric intervention concerning the diagnosis of gender identify disorder.
2.The Tribunal approves delegation by the Public Advocate of her functions as a 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 23 March 2023.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MR J MANSVELD, (SENIOR MEMBER)
22 OCTOBER 2021
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