JL
[2023] WASAT 20
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: JL [2023] WASAT 20
MEMBER: MS F CHILD, MEMBER
HEARD: 31 AUGUST 2022 AND 7 DECEMBER 2022
DELIVERED : 23 MARCH 2023
FILE NO/S: GAA 2758 of 2022
JL
Represented Person
Catchwords:
Guardianship and administration - Application for the appointment of a guardian and for review of administration order - Represented person suffering acquired brain injury and substance misuse disorder - Ongoing methamphetamine abuse - Risk of violence to mother and primary carer - Whether a need for guardian - Whether a need for an independent guardian to make decisions regarding accommodation - Wishes of the represented person that his mother manage his affairs - Primary obligation of the Tribunal the best interests of the represented person - Family and cultural considerations of best interests - Less restrictive alternatives to the appointment of a guardian
Legislation:
Aborigines Act 1905 (WA)
Guardianship and Administration Act 1990 (WA), s 3, s 4, s 4(4), s 4(5), s 4(6), s 4(7), s 43, s 43(1)(c), s 43(2)(c), s 44(1)(b), s 44(5), s 51, s 64, s 80(1), s 110ZD, Pt 6
Mental Health Act 2014 (WA)
Native Welfare Act 1905 (WA)
Result:
Application dismissed
Category: B
Representation:
Counsel:
| Represented Person | : |
Solicitors:
| Represented Person | : |
Case(s) referred to in decision(s):
FS [2007] WASAT 202
NCK [2004] WAGAB 6
PR [2021] WASAT 32
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
An Intensive Community Outreach mental health team (MH team) made an application on 23 June 2022 under the Guardianship and Administration Act1990 (WA) (GA Act) seeking orders for the appointment of a guardian of JL and for review of an administration order by which BL, the mother of JL, is appointed the plenary administrator of his estate.
The application proposes that the Public Trustee be appointed the administrator and the Public Advocate be appointed JL's guardian. The application states that JL 'stands over' BL for money to buy methamphetamine and she is at chronic risk of violence from him. It is argued that a guardianship order is needed so that the guardian has oversight of accommodation, services and medical procedures for JL.
The application was first heard on 31 August 2022 with a final hearing on 7 December 2022.
At the first hearing the orders were opposed by JL, his mother, BL and grandfather AJ. The Public Advocate's investigator argued that the orders were not needed.
I adjourned the hearing so that the applicant could consider whether there were less restrictive alternatives to the appointment of a guardian for JL, in particular, whether the Public Trustee, as the trustee of JL's compensation trust could play a role in the control of JL's access to funds used for the purchase of illicit drugs. I also wanted to hear from an officer from the Courts Intellectual Disability Diversion Program (IDDP) to which JL had reporting requirements.
By the time of the final hearing, JL was in custody at Hakea prison having been arrested on 19 October 2022.[1] I was advised he was awaiting trial on criminal charges and for sentence on other charges to which he had pleaded guilty.[2] JL's engagement with IDDP had been suspended following his arrest and being taken into custody.
[1] Evidence of TW, IDDP, ts 20, 7 December 2022.
[2] There were 14 charges in all including criminal damage, breach of a police order, breach of Family Violence restraining order, common assault to which JL had pleaded guilty or indicated a plea of guilty and breach of protective bail conditions, breach of Family Violence Restraining order, breach of police order, aggravated burglary on which he was awaiting trial.
The applicant advised that JL had been discharged from the MH team to his general practitioner and the forensic psychiatrist, Dr W.
After hearing further from the parties, the decision on the applications was reserved. These are the reasons for the decisions made.
Background
JL is a 34-year-old indigenous man. In 2006, as a teenager he was injured in a serious motor vehicle accident in which two of his friends were killed. That accident changed the course of his life. The reports on the Tribunal file indicate that, among other injuries JL suffered a traumatic brain injury. Following the accident, he is reported to have started to 'self-medicate'[3] to deal with the consequences of the accident and developed a drug misuse problem.
[3] Reported by BL and noted in the report of Dr LT dated 7 December 2018.
JL has been a patient of Mental Health Services since 2009 with 13 reported admissions to hospital. According to the most recent psychiatric reports, he now has a diagnosis of organic psychosis and substance use disorder, in particular misuse of methamphetamine.
JL's parents are separated, and he has lived with his mother, BL for 16 years. She is described as his carer, support person and main advocate.
Legislation and principles to be observed
To appoint a guardian for JL, I must be satisfied that JL is incapable of looking after his own health and safety, unable to make reasonable judgments in respect of matters relating to his person or is in need of oversight, care or control in the interests of his own health and safety or for the protection of others[4] and that he is in need of a guardian.[5]
[4] GA Act, s 43.
[5] GA Act, s 43(2)(c).
To appoint an administrator for JL, either originally or on review, I must be satisfied that JL is unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all or any part of his estate and he is in need of an administrator of his estate.[6]
[6] GA Act, s 64.
Those parts of the legislation are subject to principles set out in s 4 of the GA Act. The principles state that the primary concern of the Tribunal is the best interests of any represented or proposed represented person. Additionally, every person is presumed to be capable of looking after his own health and safety making reasonable judgments in respect of matters relating to his person, managing his own affairs and making reasonable judgments in respect of matters relating to his estate.
The principles provide that in considering any matter, the Tribunal is required, as far as possible, to seek to ascertain the views and wishes of the person concerned.[7]
[7] GA Act, s 4(7).
Furthermore, orders should not be made if the needs of JL could, in the opinion of the Tribunal, be met by other means less restrictive of the person's freedom of decision and action.[8]
[8] GA Act, s 4(4).
A plenary guardian shall not be appointed if the Tribunal is of the opinion that the appointment of a limited guardian would be sufficient to meet the needs of the person concerned.[9] Any order appointing a limited guardian or an administrator should be in terms that, in the opinion of the Tribunal, impose the least restrictions possible, on the represented person's freedom of decision and action.[10]
[9] GA Act, s 4(5).
[10] GA Act, s 4(6).
History of orders
Orders were first made for JL by the Tribunal on 2 September 2009 on the application of his mother, BL following which she was appointed plenary administrator of his estate with a review date of 2 September 2014.
The professional reports held on the Tribunal's file refer to JL experiencing significant executive dysfunction and frontal lobe impairment assessed at that time by a neuropsychologist. The assessment was at the request of JL's solicitor for the purposes of a claim for compensation for personal injuries sustained in the motor vehicle accident.
The administration order has been reviewed and BL's appointment confirmed as plenary administrator in 2014 and 2019.[11] The order is again due for statutory review by 30 October 2024.[12]
[11] The order was amended on 30 October 2019 to include a gifting authority of $500 per annum but otherwise confirmed the appointment of BL.
[12] All administration and guardianship orders must be reviewed within 5 years.
In 2013 the Public Trustee gave an exemption to BL from the normal requirement on administrators[13] to file annual accounts with the Public Trustee. JL's compensation claim had been settled by BL (as the plenary administrator) and the Public Trustee appointed as Trustee of the Court Trust settlement monies.
[13] GA Act, s 80(1).
Following settlement of his claim, a Centrelink preclusion period was imposed so that JL's disability support pension was cancelled. The preclusion period from receiving a Centrelink pension will end in 2028.[14] Because of this, JL has no other income[15] other than weekly funds distributed to him by the Public Trustee as Trustee of the Court Trust. The Public Trustee purchased a property with trust funds in which JL lives with BL and also meets his other expenditure needs.
[14] Public Advocate's investigator's report.
[15] Evidence of BL, ts 10, 31 August 2022.
Evidence and material before the Tribunal
In the course of the hearings, I heard from the applicant, and another member of the MH team (GM and MF), from JL, his mother BL and his grandfather AJ, as well as the Public Advocate's investigator at both hearings. In the final hearing I also heard from KC, the NDIS support coordinator, and TW, an officer with the IDDP.
Material filed in support of the application includes:
(a)the application and report of the applicant's social worker GM;
(b)reports of psychiatrists, Drs VS and HM dated 15 July 2022 and 2 August 2022;
(c)a report of a forensic assessment dated 7 December 2018 by Dr T; and
(d)Discharge Summaries from hospital admissions.
Also submitted by the applicant are notes of an interagency meeting held in May 2022 at which family members attended including BL. Further clinical review meetings were held on 14 June 2022 and 21 June 2022 which BL did not attend.
These later meetings appear to have precipitated the application to the Tribunal, on the basis that BL was reported to have said to a welfare officer that she 'gives JL extra money outside his allowance'.
Also in evidence are reports including a report from Public Trustee; an NDIS plan for JL; a service provider report from Ms E from Community Corrections dated 26 August 2022; and a report of the investigation by the Public Advocate's investigator.
The application states and submissions of the MH team contend that:
[JL] stands over mother for money to buy methamphetamine daily. This in turn increases D[omestic]V[iolence] situation towards mother.
…
Estimated that $1,200 per week was spent on methamphetamine possibly more on substances.[16]
[16] Application, page 3.
The MH team leader, MF, said that it was believed that BL had a conflict of interest as a paid carer of JL. This was due to her role as plenary administrator while living rent and amenity free, drawing a wage, controlling the 'extra expenses' and living in what is described as a domestic violence situation.[17]
[17] ts 19, 31 August 2022.
In the hearing the applicant said that the MH team had talked to BL about JL's deterioration, and she had said something bad was going to happen unless they intervened. JL's methamphetamine use was discussed with BL as she had said he was using a lot of methamphetamines daily. The applicant said that a lot more money was being spent on methamphetamine outside of JL's allowance. The applicant said that BL had explained that she would give him money in order to placate him and he was also getting money on a regular basis from his father.[18]
[18] ts 29, 31 August 2022.
MF said that the key factor prompting the application was the control of 'JL's money [by BL] that gave him easy access to money and that the MH team had not known this variable'.[19]
[19] ts 16, 31 August 2022.
The applicant explained the position:
[W]e just can't keep going on with the status quo the way it is, you know. And that was what the team decided and that was the catalyst for us to now look at going forward with an application.
Because if something does happen, then as [MF] was saying, the question will be asked of us what we did. We will have the Office of the Chief Psychiatrist, we will have the Coroner, we will have everybody and the family themselves in relation to their expectations, which we cannot meet. We cannot meet their expectations. And we've tried to have that in a meeting, and we would like to have further meetings with them, so that we can sort of discuss this further.
But we - so we're sort of jammed in the middle of all of this, with people expecting things from us that we can't deliver[.][20]
[20] ts 30, 31 August 2022.
The applicant agreed he would make contact with the Public Trustee trust manager in the adjournment with a view to explore ways in which JL's access to funds for the purchase of methamphetamine might be limited.[21] MF said in the hearing that the option of the Public Trustee's trust manager attending a planned stakeholder meeting could be tried and GM agreed that it might be beneficial.[22] However, by the time of the final hearing this had not occurred as the applicant said that JL had withdrawn his consent at the previous hearing and it was the understanding of the applicant that without that consent no information could be given to him.[23]
[21] ts 45 and 46, 31 August 2022.
[22] ts 19, 31 August 2022.
[23] ts 11, 7 December 2022.
In correspondence to the Tribunal on 15 September 2022, the applicant reported that the IDDP officer TW had advised that JL was in 'a precontemplative stage for detox and is considering residential D[rug]& A[lcohol] placement'. The applicant recommended a long adjournment to give the best chance of change being facilitated. Unfortunately, it seems that JL was arrested soon after and taken into custody for further offences. In the same email the applicant said it was the plan of the team to work towards discharge of JL in consultation with the family if they could not come to an agreement on JL's treatment and care provisions/conditions.
The applicant submits that BL does not appear to accept the correlation between JL's mental state and his methamphetamine use, reportedly telling services that they are not looking at the whole picture. She is said to regard his presentation as solely trauma/anxiety resulting from his traumatic brain injury and to minimise and justify his drug use as self-medication of his uncontrolled anxiety. This is in contrast to the MH team's opinion that JL's behaviour is a side-effect of prolonged methamphetamine use on his brain.
BL is reported to have been informed since 2018 by the police and by the MH team that living with JL is an ongoing risk to her if he continued to use methamphetamines. This message has been repeated over many years. BL is described as being unable or unwilling to take the advice of experienced mental health and legal representatives.
The standard medical report dated 15 July 2022 completed by Dr VS, confirms JL has a diagnosis of acquired brain injury following a motor vehicle accident in 2006. She reports he has had several admissions to psychiatric hospitals with a diagnosis of organic psychosis and substance use disorder. She states that JL's episodic psychotic disorder is precipitated by harmful misuse of substances including methamphetamine. It is said JL has shown no interest in modifying his drug use having been offered drug detox, drug rehabilitation and counselling on numerous occasions, but has not accepted. JL's condition is described as a fluctuating one and Dr VS's opinion is that he is incapable in all spheres of decision-making. In particular, he is described as lacking insight into his mental health needs, risks and drug use. His compliance with oral medication is erratic and he requires prompting by mental health clinicians to have a monthly injectable antipsychotic medication. In respect of accommodation, JL is described as living with his mother in his own property which was bought with his compensation payout. The report goes on to say, 'we believe that [the mother] is at chronic risk of experiencing violence by JL given his ongoing harmful use of methamphetamine. The MH team has discussed with [BL] different options including that JL move to supported accommodation or she goes to live elsewhere, but she has disagreed.
In his report dated 2 August 2022, Dr HM consultant psychiatrist reports that he has known JL since 2018, noting he has a diagnosis of organic psychosis complicated and compounded by the use of methamphetamine and cannabis. Dr HM states JL's condition is both a progressive and fluctuating one.
The opinion given is that JL is incapable in all spheres of decisionmaking. In respect of financial decisions, he is reported to require the help of his mother.
In respect of medical treatment, Dr HM reports that JL does not think he has a mental health issue and therefore requires a Community Treatment Order (CTO) for administration of medication. JL reportedly lacks insight into his mental health issues and does not wish to stop illicit drug use. He is unable to identify and secure appropriate accommodation. He relies heavily on his mother. He has been aggressive towards his mother, but she still continues to support him, and they live together. JL is described as unable to identify his needs and is cared for by his mother.
A risk assessment by Dr T, a consultant psychiatrist from 2018 records admissions of JL to hospital from 2010, including involuntary admissions. Dr T's report notes that JL's first psychiatric admission was four years after his brain injury and in the context of escalating methamphetamine use. It is noted that this suggested his psychosis was not primarily related to his head injury but rather to his drug use. The use of depot antipsychotic medication to manage JL's impulsivity and behaviour reportedly mitigated the effects of his drug use on his mental state to some degree. The report notes however, that 'depot alone evidently has not been sufficient to prevent hospital admissions in the context of methamphetamine use and the value of antipsychotics is uncertain'. Cognitive and memory deficits were apparent. JL was considered a risk of suicide in the long-term due in part to his impulsivity. Dr T reports there was no history of self-neglect although this may be due to the high level of support he receives from his mother. He was considered to be vulnerable to peer pressure and vulnerable to exploitation and his ongoing IV drug use and use of needles may be placing him at risk. Treatment under the Mental Health Act 2014 (WA) (MH Act) was justified based on JL's lack of capacity and the use of a CTO appeared to be the least restrictive option to continue treatment in the community.
JL was assessed as a moderate to high risk of violence, the most likely scenario for future violence being an impulsive attack on a family member most likely when intoxicated. The report notes JL's irritability was chronic and so the risk of violence was also chronic. The report notes that the main outstanding areas for intervention appear to be JL's drug use in his living situation, the combination of which remain a concern. However due to the close constant proximity to his mother who is both the most likely victim and source of aggravation for JL, services engaged are noted to include the use of a CTO, intensive case management from ICOT drug and alcohol counselling from Wungening Aboriginal Counselling Service (Wungening) three times per week, supports from SAMHS and NDIS support workers for 3 hours a day and a referral for art therapy.
Dr T's report concludes:
Ideally [JL] would not live in close proximity to his mother any longer. She understands that she is at risk from him and that this risk is chronic and relates to his organic personality disorder secondary to his brain injury, exacerbated by drug use. The team might consider suggesting a move to supported accommodation, or recommending his mother reside elsewhere, although this is unlikely to be accepted by either party. If [JL] does continue to live with his mother, efforts can at least be made to reduce their contact by assisting [JL] to structure his time away from her with more activity and the team are already attempting to do this[.]
The report also notes that it may be worth considering a referral for cognitive and memory assessment to quantify JL's current intellectual and memory deficits as these may be contributing to his difficulty in addressing his drug use and interpersonal conflict.
The historical hospital discharge summaries provided record JL exhibiting highly aggressive behaviours, and hospitalisations precipitated by aggressive incidents. In 2013 admissions referred to aggression to other family members. In 2014 it is reported that JL was brought into hospital by police following calls to the police by his grandfather concerned about BL and other family members including children as they had been pushed by JL. At that time, he was reportedly on an intensive supervision order following a conviction for burglary in 2014. In 2015 a CTO was revoked, and he was readmitted to hospital after he reportedly threatened to stab his mother. There was a period of relative stability from 2015 to 2017. However later in that year his mother reported he became more aggressive during periods of noncompliance with his medication. In 2018 there was an admission following increased aggression to his mother, and threats towards the family are recorded.
More recent discharge summaries dated 19 November 2020 refer to a diagnosis of paranoid schizophrenia and methamphetamine use over a long period. On presentation to hospital JL reported that he was hearing voices and believed there were people in the roof and back garden. His mother is reported to have provided collateral information of him decompensating in the community with ongoing paranoid symptoms and calling the emergency helpline for assistance. It is noted she is also fearful for her safety and believes he needs treatment and containment. JL was admitted as an involuntary patient. A family meeting on 26 November 2020 records that JL had improved but was not ready for discharge. Later he was discharged on a CTO 'to live with his mum.'
In December 2020 there was a further admission. Again, the diagnosis is reported as paranoid schizophrenia with history of methamphetamine use. The presenting problem is recorded:
[JL] is a 32-yo indigenous male who was BIBP [brought in by police] after his sister made a phone call concerned about their welfare after [JL] allegedly punched his mother in the face. Police brought him in on an involuntary community treatment order. 'They were at his sister's house at the time. [JL] reports that he only pushed his mother and attributes this to taking meth[amphetamine] two days ago.
Collateral information gained from his mother is consistent with this and she reports she is not having him back in the house until he is better. She has taken a conditional VRO out on him which means the police get involved when he assaults her but is not a full VRO. Mother reports deterioration in his MH [mental health] and requesting an admission. She reports he is paranoid and has been talking about people in the roof, and used a handbag to strangle himself prior to coming to ED. [JL] was reluctant to accept an admission but realised after speaking with his mother that his MH [mental health] has deteriorated and his goal is to return living with mother.
Later in the summary it is noted that at a family meeting his mother was not keen on discharge initially as he had pushed her. Further it was noted that there was no evidence of psychosis, but there was disinhibition related to frontal lobe impairment. A later family meeting was held, and JL's mother was reported to be willing to take JL back home. A discharge date was agreed on where JL would be discharged on a CTO and his mother was agreeable to it. On the day of discharge JL was reported to be settled and nil psychosis evident and was able to reflect that what he did was wrong; he should not have pushed his mother. The discharge plan included seeking help in times of distress or any concern.
The discharge summary of an admission dated 10 May 2021 refers to an involuntary admission; JL having been brought in by police after he called the police reporting that his mother had taken his car. He threatened to punch the psychiatrist and was seen in the presence of security. In a family meeting arranged in his absence, BL is reported to say that JL's main problem was anxiety and was advised a medication Fluoxetine would help with this. It is reported that BL was considering getting her own rental property where JL could visit. She noted that he was on and off compliant with his medication at home. He was discharged on a CTO on 25 May 2021. The report notes review of his medication and withdrawal of antipsychotic medication Seroquel as well as reduced depot injection due to metabolic concerns, including hypercholesterolaemia, diabetes and a high risk of cardiovascular issues.
The report notes that both JL and his mother have been informed by the treating team of the limitation of antipsychotics in his treatment and the risks of ongoing use of methamphetamine with adverse effects on his mental state and general well-being. The summary also notes that JL is linked with Brightwater head injury services, has a psychologist who intends to do some cognitive testing and work around trauma experiences. Occupational therapist and carer support of 20 hours per week is reported from the NDIS. The summary notes that 'mother says that [JL] has an aggressive nature, even at the best of times but that when unwell expresses delusions against his parents'.
The applicant advised in correspondence dated 14 July 2022 that the 'missing year of inpatient admissions in 2021-2022' was due to JL going into a 'forensic pathway' rather than a mental health admission for his behaviour towards BL.
The applicant said that JL's prognosis was poor if he did not engage in rehabilitation and abstain from methamphetamine use. The applicant described longterm methamphetamine use as causing irreversible brain damage[24] with the user 'more or less giving themselves a chemical induced lobotomy'[25] He said that it was the belief of the MH team that if JL ceased using methamphetamine that the requirement for him to be in mental health services would be minimal and his medications may be greatly reduced.[26]
[24] ts 16, 31 August 2022.
[25] ts 8, 31 August 2022.
[26] ts 16, 31 August 2022.
At the resumed hearing in December 2022 the applicant said that the MH team continued to work with JL's supports but there had been very little contact with JL or his family following the hearing and that BL had requested that the applicant have no direct contact with them. He reported that JL had been transferred to a long-acting antipsychotic medication which had been planned for some time. This required JL to have a depot medication every three months with a view to changing to a six-monthly injection and discharge to his general practitioner.
The applicant said the MH team's data base to which the police had access showed that JL had had contacts with the police since the hearing but that the family had not made a request for mental health review following the reported incidents. It was reported that JL's sister had initiated a call on 8 September 2022 informing that JL was affected by drugs and threatening to harm his mother. The applicant said it was presumed the police had attended. The records showed that JL was arrested on 18 September 2022 for breach of bail when a mental health assessment was conducted with no evidence of psychosis. On 21 September 2022 there was an assessment by the ICOT consultant psychiatrist. On 8 October 2022, it was reported that there was a call by BL to the police which documented that JL had to leave the house as he was getting too aggressive, shouting at people 'believing they're outside and in the roof'. Again, it was presumed the police attended. On 18 October 2022 JL was arrested for breach of bail with a watchhouse (mental health) assessment conducted with no evidence of psychosis. On 20 October 2022 the Hakea prison MH team requested information and it was noted that JL remained at the Hakea prison remand centre.
MF said that the numerous contacts which had occurred during the period of the adjournment confirmed the concerns which prompted the application to the Tribunal; that JL had a significant decision-making disability and the team had concern about the independence of the decision-maker, BL, to make informed decisions about his lifestyle. MF said the decision that JL live with BL might not be a functional one or good for JL as the situation caused risk to BL who might be severely injured and other people as well.[27]
[27] ts 15, 7 December 2022.
The applicant confirmed that the team sought a guardian to make decisions about accommodation for JL and to advocate for him in the criminal justice system as he was being asked to enter pleas to serious charges and to navigate the system with lawyers.[28]
[28] ts 13, 7 December 2022.
The applicant said he was aware of an assessment by the forensic psychiatrist of JL while in custody following his arrest but was unaware of the outcome and whether JL had been found unfit to plead to the charges. He advised the Ministry of Justice, and the Department of Health were not linked and operated completely independently.[29]
[29] ts 14, 7 December 2022.
Public Advocate investigator's report
The investigation undertaken by the Public Advocate followed referral of the application by the Tribunal and the investigator's report was produced for the first hearing. Following that hearing a copy was provided to the applicant.
The investigator reported he conducted interviews with the applicant, with JL, BL and AJ and with JL's uncle, TJ. The investigator also reports on interviews and information supplied by JL's lawyer, from Community Corrections staff EG and TW, from the IDDP and the NDIS support coordinator KC.
The investigator said that family members interviewed (BL, AJ and TJ) did not agree that JL stood over BL for money. The allegations of the disclosure by BL of being coerced by JL for money was denied and BL said that the MH team must have misunderstood what she had said.
The report of the interview with JL's uncle TJ, confirms JL's intimidating behaviour but it is said that this is not related to drugs or money but to the 'overprotectiveness' JL feels toward BL and his attempts to control the time she spends with other people including family members and at her workplace. The uncle described that even when BL went to family gatherings that JL would become upset if BL was spending time talking to other people. He said that JL had been kicked out of the library where BL works because he wanted to know who she was talking to. TJ agreed that JL could be dangerous and said he had had serious conversations about this with his sister. He felt that BL was not getting the support she needed from professionals but said that she needed to be a big part of JL's life. He did not think that guardianship would change JL's behaviour.[30] The family members were critical of the MH team and made clear to the investigator that they did not consider their knowledge and lived experience of dealing with JL day-to-day was valued by the MH team.
[30] Investigator's report.
The views expressed to the investigator from family members was that separating JL from BL could lead to more problems than it solved. While acknowledging the risk, AJ and TJ emphasised the need to keep JL in the community and more particularly in his family and asserted the primacy of his relationship with BL. TJ in his statements to the investigator had no illusions about the effects of JL's controlling and intrusive behaviour on BL's life but indicated if BL did not live with JL he would spend his days stalking her.[31]
[31] Investigator's report, page 5.
BL told the investigator that she had a Family Violence Restraining Order (FVRO) on JL but that it related to verbal abuse. The FVRO meant that in theory the police were more likely to respond more quickly when called. BL said that she only calls police when JL gets out of control.[32]
[32] Investigator's report, page 4.
The investigator reported that the grandfather and uncle advised that since the application had been filed, they had become involved with BL in managing JL's requests for funds to take the pressure off BL referring to themselves as an Advisory Unit which JL thought was part of the Public Trustee process.
The investigator noted the comments attributed to the clinical psychologist and author of JL's Positive Behaviour Support Plan which reflected that JL had a supportive and close relationship with his direct and extended family.
In respect of the accommodation decision-making the investigator said that BL had indicated that she had initiated the subject of supported accommodation for JL but service providers had discouraged the idea saying they were 'not nice places'. AJ did not support JL leaving BL's care referring to such a placement as 'just another institution.'[33] Both BL and AJ however did support a period of time in residential rehabilitation for JL.
[33] Investigator's report, page 9.
The investigator reported on interviews with the former and current Community Corrections officers EG and TW who had confirmed JL's participation in the IDDP program related to a number of charges.[34] EG said JL's aggressive nature is mainly in connection with the use of methamphetamine. There had been an historical reluctance by JL to undertake drug reduction strategies and counselling, but JL had agreed to attend for counselling.
[34] Breach FVRO, breach police order, criminal damage and common assault.
The investigator said he had spoken to the Public Trustee's trust manager reporting that the trust manager spoke highly of BL stating, 'we have no difficulties with mum … she seems quite lovely'.[35]
[35] Investigator's report, page 11.
TW confirmed the Public Advocate investigator's own assessment that JL was a 'high risk' with the risk escalating when drugs are involved. JL had told TW that the court process had placed stress on him which was the reason he reverted to drugs and had been agitated when urinalysis had been mentioned. TW commented that BL was doing the best she could but was in a difficult position.
In respect of the issues raised by the applicant regarding JL's pending criminal charges, the investigator reported that he had been in communication with JL's lawyer, (who had acted for JL over a period of years) who advised that he considered that JL clearly understood the charges he was facing.
The investigator reported that the lawyer had stated in an email that he had had an opportunity to observe the relationship between JL and BL on at least three occasions and he described BL as a 'remarkable woman'. It was plain to the lawyer that she had JL's best interests at heart and that JL felt comfortable with her. The lawyer said in his view the dynamics of the relationship was very strong and a positive one. He said that BL had always been with JL for appointments both in and outside court. The lawyer confirmed that BL had told him that JL had never attempted to stab her or punch her, and the assault charge related to JL grabbing BL by the arm.[36]
[36] Investigator's report, page 11.
BL and AJ's evidence
In her evidence BL disputed the mental health records alleging she had been stabbed with scissors or a fork or punched in the face by JL.[37] (JL is reported to have told the investigator that he may have held a fork in his hand but had not pierced his mother). The applicant confirmed that specific allegations which were disputed by BL were not included as part of the application but that the allegations of violence or threats of violence by JL to BL or to other family members were recorded in the hospital notes between 2011 and 2021 and were recorded at the time and either attributed to family members or to the police.[38]
[37] ts 14, 31 August 2022.
[38] ts 31, 31 August 2022.
BL said the worst thing JL had done was to pull her arm. She acknowledged that there had been breaches of the VRO but said these were about JL's verbal behaviour describing him as a 'bully'.[39] Although in the 2018 report BL accepted the conclusion of the risk assessment, in the hearing she questioned the ability of the forensic psychiatrist to make such an assessment in a two-hour meeting.[40]
[39] ts 13, 31 August 2022.
[40] ts 24, 31 August 2022.
BL's evidence is that JL is paid his allowance of $60 by the Public Trustee, three times a week through her for cigarettes and to purchase food. BL said that she believed JL also obtained money from friends and family members but that this was 'not all the time now.'[41] She said he could not get access to his trust funds and if JL got access to other money he did it on his own.[42]
[41] ts 12, 31 August 2022.
[42] ts 12, 31 August 2022.
BL said she thought that JL used methamphetamine daily[43] and agreed that it was impacting on his behaviour but said that JL's anxiety had driven his behaviour rather than the methamphetamine use. BL appeared to relate JL's anxiety to the application made for a guardianship order.[44] BL said she had accepted JL statement that he had recently reduced his methamphetamine use.[45]
[43] ts 12, 31 August 2022.
[44] ts 11, 31 August 2022.
[45] ts 19, 31 August 2022.
BL said she did not agree with JL's behaviour and explained that this was why she had obtained the VRO but was now questioning whether she had done the right thing as JL was in custody which was not a suitable place for him.[46]
[46] ts 30, 7 December 2022.
In respect to concerns expressed about her safety, in the hearing BL challenged the lack of consultation with her through a family meeting and raised concerns about the transparency of the process of the application to the Tribunal.
Both she and AJ said that they have training and working experience in the disability field, BL in the area of acquired brain injury[47]and AJ in working with substance misuse.[48] AJ said that he and BL were trained and lived daily with the issue of JL's drug use. JL's uncle too worked in the disability and mental health fields. AJ argued that all had relevant experience but asserted that the MH team had not properly consulted with them. BL said that there had been a family meeting only after she had requested it following the application being made to the Tribunal.
[47] Investigator's report.
[48] ts 39, 31 August 2022.
AJ said the allegation that JL was getting money for drugs through BL was not true. He said BL had formed a group with him and his son TJ to deal with JL's requests for money if he got aggressive.[49] AJ acknowledged the protective arrangements with the Public Trustee put in place by BL to deal with JL's compensation funds. He compared it to the experience of the other two boys who had been injured in the accident and whose money had disappeared within two years. He said that in respect of managing his money BL had set up a good system for JL.[50]
[49] ts 20, 31 August 2022.
[50] ts 20, 31 August 2022.
Both AJ and BL were critical of Mental Health Services engagement with JL saying that the applicant did not really know JL and that since 2009 there had never been an Aboriginal worker to work directly with him. She asserted that the MH team were unaware of JL's history and that historically there had been a failure by health systems to meet his needs.
BL said it was the doctor's direction that JL be readmitted to hospital if he was not taking his medication before he got worse. She agreed that JL should not use methamphetamine and he had been told this constantly. She said she had responded to JL's aggressive behaviours by taking out the VRO.
In the August hearing BL said she was hopeful of JL considering detoxing and entering rehabilitation through the IDDP program.[51]
[51] ts 41, 31 August 2022.
BL argued strongly against the making of a guardianship order on the grounds that neither JL nor the family needed this type of 'protection', referring to the '1905 Act'.[52] This is understood to be a reference to the now repealed Aborigines Act1905 (WA) which created the Office of the Chief Protector of Aborigines and provided the legislative basis for the forced removal of Aboriginal children from their families and the creation of the Stolen Generation. AJ said these policies had directly impacted on his own family of origin with ongoing harm to family relationships.[53]
[52] Native Welfare Act 1905 or Aborigines Act 1905 which created the Office of the Chief Protector who was the legal guardian of every Aboriginal child in Western Australia to the age of 16 years with the power to remove Aboriginal children from their families and place them in Homes or in 'service' (work). The role Chief Protector became the Commissioner for Native Affairs in 1936. ts 28,7 December 2022.
AJ said that there was some risk from JL and he did have concerns for BL's safety at times. He said that other family members had been heavily dependent on drugs and had sometimes stepped over the line and become violent. However, he said as Aboriginal people, the family has known how to deal with it and when it was necessary to call the police, 'we call the police'.[54]
[54] ts 44, 31 August 2022.
He confirmed that JL needed to go to rehabilitation and reiterated this directly to JL in the hearing.
AJ challenged the premise of the application for guardianship; that BL was considered 'not fit to look after' JL.[55] He questioned if control was taken of the whole situation and a guardian appointed, whether treatment would then be available to JL.
[55] ts 25, 7 December 2022.
AJ argued that as an Aboriginal person JL needed to be surrounded by other Aboriginal people in a mental health or health system so that he felt safe. He said that JL's was not an isolated case within the wider family, and he had seen people recover from addiction supported by family and JL needed this.[56] He said that the family did not condone JL's violence and did not tolerate any violence in their home including any swearing. He said they did not have alcohol in the home and BL had been brought up in this environment. AJ said the family had this to draw on. AJ's own view was that JL followed these rules the majority of the time saying he would give him 7/10. AJ said he acknowledged that JL was controlled by his drug habit, but he believed that this could be overcome and that JL needed the right medications and the right support rather than incarceration.[57]
[56] ts 26, 7 December 2022.
[57] ts 45, 7 December 2022.
BL said that the bringing of the application to the Tribunal without consultation and the comments made about her in the application meant she felt that trust had been broken with the MH team who she argued were concerned with how they were viewed rather than focussing on JL's needs.[58]
[58] ts 43, 31 August 2022.
MF agreed that the team did not make the application in the best way possible in terms of consulting the family.[59]
[59] ts 35, 7 December 2022.
MF said the application had been made because of the complexity and risk. The MH team considered the biggest issue was JL's ongoing methamphetamine abuse regardless of what caused it in the first place. He noted that BL had done a fantastic job of supporting JL but that he did not think anything would change for JL if he continued to live in the same environment that he had done for past 10 - 12 years.[60]
[60] ts 35, 7 December 2022.
In the December 2022 hearing BL confirmed her view that JL suffered trauma associated with the accident which heightened his anxiety. She said his anxiety was now directed to her safety which she said was not based in reality. She said that JL's anxiety was obviously exacerbated by his drug use.[61]
[61] ts 24, 7 December 2022.
BL's preference was to engage with Aboriginal Mental Health Services with whom she had had meetings, but said, if necessary, she would again seek 'services from the MH team …'.[62] She said initially though a mental health plan was being developed for JL with the general practitioner to whom he had been discharged. She said that she was working with the NDIS support coordinator to identify respite options.[63]
[62] ts 48, 7 December 2022.
[63] ts 49, 7 December 2022.
Evidence of IDDP officer and NDIS Coordinator
At the December 2022 hearing TW confirmed that JL had been subject to conditional bail which had been imposed while he was participating in the IDDP. The role of the program was to address participants offending related treatment needs and engage with their broader support network.
TW said the program was only available to people on bail and that the general approach was that after completing the program for six months that person could proceed to sentencing on their charges, with the Magistrate able to take into account their engagement with the program. Depending on that engagement it might reduce the eventual sentencing outcome.
TW said that as JL had reoffended while on bail and due to the nature of the charges he had been returned to custody and a new court date set for the following week. He said one of the charges, a charge of burglary, might need to be dealt with in the District Court.
TW said that no fitness to plead assessment of JL had been requested nor were there previous fitness to plead reports. TW said he was aware of the guardianship application and understood the concerns which prompted it but did not advance an opinion as to whether a guardianship order should be made.
BL asked whether the recommendations made by IDDP for JL's rehabilitation had been successful. TW said that JL had been referred for drug and alcohol counselling and had a good relationship with Wungening and relied on that service as a forum for discussion. However, his ongoing drug use suggested that it was not effective and so an alternative referral had been made and JL did attend a couple of sessions. TW said that JL had been advised that to remain on the IDDP he needed to commit to undertaking urinalysis testing, and to engage in substance use intervention with the aim of entering into a detoxification program, and potentially then moving into a residential rehabilitation program.
TW said that JL had not attended enough appointments with the second service to allow him access into the detoxification program. TW said that JL was not penalised for the appointments which had been cancelled by the provider. However, JL had expressed concern about the welfare of his mother and expressed some reluctance to enter into the detoxification program because he felt an onus of responsibility to stay in the community to make sure his mum was okay. TW said that entry into the detoxification program or residential rehabilitation had to be voluntary. JL's reluctance had delayed the process and he was back in custody again before it had proceeded into detox and to test his capacity to stay there.[64]
[64] ts 23, 7 December 2022.
BL said that JL had been willing to go to detox but the referral to a new provider had interrupted the process. She said JL had been assured of her safety and had been willing to go.[65]
[65] ts 24, 7 December 2022.
The NDIS Coordinator, KC said she had been working with JL and the family for five years and had been the NDIS Support Coordinator for three years. She said that JL had access to NDIS funded services including a Positive Behaviour Support Practitioner and plan and support workers in the community, a Yarning Circle and was attending Strong Minds day rehabilitation.
She opposed the appointment of a guardian for JL. She argued that the MH teams too often brought an application for guardianship 'as a default' for Aboriginal people without exploring alternative options and working with families to build capacity to help mitigate risk or harm, but [also] respecting people's cultural ways of living'. She advocated that the cultural condition of the family which she described as a really strong family unit[66] be considered and that the strength of the family not be undermined.[67]
[66] ts 15, 7 December 2022
[67] ts 37, 7 December 2022.
JL's evidence and wishes
JL said in the hearing that his mother and grandfather treated him well. He said he felt singled out by the applicant[68] and there were people out there worse than him. Both in the hearing and to the investigator he expressed his wish that his mother manage his affairs. He indicated to the investigator his long-term goal was to get off methamphetamine. He said in the hearing he had not used in a long time since being drug tested.[69] At the final hearing he attended by video-link from Hakea prison and asked when he could go home. BL provided reassurance, telling him that it was 'a process'.
[68] ts 27, 31 August 2022.
[69] ts 26, 31 August 2022. It is understood in fact when tested JL was positive for illicit drugs.
JL is a person for whom guardianship and administration orders may be made
I am satisfied on the medical and other evidence, and I find that the presumptions that JL is capable of making reasonable judgments about his person and his estate and managing his affairs are displaced.
I am satisfied that all of the paragraphs in s 43 of the GA Act apply to him and that JL is incapable of looking after his own health and safety, unable to make reasonable judgments in respect of matters relating to his person and is in need of oversight, care or control in the interests of his own health and safety and for the protection of others.
These findings are available on all of the professional evidence which I accept of JL's lack of insight and appreciation of his diagnosed mental health conditions. In addition, his lack of compliance with prescribed medications, his inability to identify and meet his own needs and his reliance and dependence on his mother to make decisions and manage his day-to-day needs. He is unwilling to modify his drug use despite the professional advice of its impact on his behaviour with an increased risk of violence and its long-term consequences for further brain injury.
I am satisfied that JL has a mental disability of acquired brain injury following the motor vehicle accident and now has the diagnosed conditions of organic psychosis and substance use disorder. Both of these conditions are psychiatric conditions and within the definition of mental disability for the purposes of the GA Act.[70] I am also satisfied that JL meets the criteria for the appointment of an administrator of his estate as I am satisfied on the psychiatric evidence that he is incapable of making judgments about even simple financial transactions and therefore is a person for whom an administration order may be order be made.
[70] GA Act, s 3.
I am satisfied and I find that JL is a person for whom both administration and guardianship orders may be made.
Is JL in need of a guardian?
Even when a person lacks capacity, the GA Act requires there to be a need for a guardianship order before one is made. If the needs of the person can be met less restrictively orders should not be made.[71]
[71] GA Act, s 4(4).
As such I can only make the appointment of a guardian if I am satisfied that JL is in need of a guardian[72] and can only appoint the Public Advocate as is proposed if there is no one else suitable or willing to be appointed as JL's guardian.[73]
[72] GA Act, s 43(1)(c).
[73] GA Act, s 44(5).
By operation of s 44(1)(b) of the GA Act, any person who has a conflict or potential conflict with the represented person cannot be appointed that person's guardian. That being the case, if a guardian is needed for JL it cannot be BL because of the existing conflicts: she lives in the trust property and is a paid carer of JL. The effect of any guardianship order therefore would be to displace BL from the advocacy and decision-making role which she has played since JL's accident.
The applicant argues that JL is in need of an independent guardian to make accommodation decisions. They argue that to change JL's drug use there is a need to change his environment and an independent guardian could decide on supported accommodation for JL. An independent guardian is also proposed to make treatment decisions thereby removing BL from that role.
It is apparent from all the medical and other professional reports, historical records and from the evidence from his family members that JL has a longstanding methamphetamine addiction. It is reported that his drug use is ongoing despite repeated advice on its consequences for his behaviour and further injury to his brain.
The psychiatric assessments and opinions given are the only psychiatric evidence regarding JL's diagnoses and the impact of those diagnoses on his functioning. The application asserts that BL does not accept the correlation between JL's drug use and his behaviour.
While BL acknowledges that it exacerbates JL's behaviour, it is apparent from BL's evidence that she does not accept methamphetamine misuse as the main reason for JL's presentation. BL's own assessment is that JL has PTSD and anxiety which she asserts are not effectively managed. (Noting here, that in her assessment in 2018, Dr T reported that JL denied any specific symptoms of PTSD and there was little evidence in the records for this diagnosis at that assessment). Although BL now rejects Dr T's assessment, it is recorded at the time that she accepted that there was a chronic risk from JL and the reason for it.
I accept the evidence of the MH team, who have expertise in this area, that whatever the reason for JL's methamphetamine use, his continuing use is contributing to his aggressive behaviours and will lead to further damage of his brain.
Although I accept BL's evidence that she has not been stabbed or punched by JL, the overwhelming evidence in the contemporaneous mental health records reflect allegations of threats of/or actual violence by JL to BL or others. Those allegations are largely reported as having been made by family members when seeking police or mental health intervention.
The risk of aggression or violence is acknowledged in family member's statements to the investigator and in AJ's comments in the hearing.
JL's uncle TJ and his grandfather AJ, both said that JL might 'accidentally' hurt his mother. This is a mirror of the comment made by the forensic psychiatrist Dr T in 2018 that JL may impulsively lash out and injure a family member, and in particular his mother, when using methamphetamine.
I considered that BL's evidence in the hearings was guarded and at times was not consistent with earlier statements; there has in fact been an assault on her (by JL pulling her arm). BL's own statement to the investigator was that she only calls the police if JL 'gets out of control'. In obtaining a FVRO BL indicates her own assessment that the risk from JL is real despite minimising those risks in the hearing.
Further, BL appeared to argue JL's anxiety related to the application before the Tribunal when it is clear from the history that his behaviours have been of longstanding concern. Of course, I accept that JL was anxious about the hearing and in the final hearing as he was in custody. However as noted I accept the contention that JL's behaviours of concern are driven by his impulsivity associated with the acquired brain injury exacerbated by methamphetamine use which pre-existed any application to the Tribunal.
JL is heavily dependent on BL for both care and decision-making. However, it is also clear he manifests controlling and irrational behaviours towards her which she manages by calling police (and in the past seeking mental health intervention) when she assesses it is needed. At other times it must be the case that the behaviours are managed within the family. The seeking of admission at these times is identified by the MH team as seeking respite but say this is not the purpose of an acute hospital admission in the context of JL's methamphetamine use. Notwithstanding this view this pattern of management of JL's behaviours over a long period has enabled him to remain in the community and with his family.
The applicant's case is that the application was made when they became aware that BL was giving additional funds over and above JL's allowance. Alleging this was done in the knowledge that he used those funds to purchase methamphetamine, thereby facilitating or at least not restricting JL's access to methamphetamine. An estimate of $1,200 per week is given. BL denies this and says she was misunderstood.
Having considered BL's comments in the first hearing and the establishment of the 'Advisory Group' since the application was made, I consider that it is more likely than not that BL was pressured to give JL money at least at that time. I prefer the evidence of the applicant regarding the disclosure because of the detail provided in his evidence and therefore consider it is possible that JL did obtain additional funds for methamphetamine from BL or from other sources, such as family or friends.
It must be acknowledged that any money given to JL (including his regular allowance) might be used to purchase methamphetamine given his reported ongoing use. The applicant agreed that if JL did not obtain funds from BL that he could obtain those funds in other ways.[74]
[74] ts 22, 31 August 2022. Evidence of MF.
The investigator, in his submissions opposing orders being made, referred to the difficulty experienced by the Public Advocate's guardians in restricting access to illicit substances for those represented persons already under guardianship.[75] Restricting access to funds to a person with substance addiction might also have unintended consequences and increase the risk of offending behaviour. This may be illustrated in the offences with which JL was later charged.
[75] ts 46, 31 August 2022.
In the August 2022 hearing both BL and AJ were supportive of JL undertaking drug rehabilitation. BL was hopeful of this occurring through the IDDP program. In the December 2022 hearing AJ reiterated his views regarding JL's need for drug rehabilitation. He said it was ultimately JL's responsibility to engage with this process. From these statements it is apparent that they support JL's rehabilitation, and I consider that if it was the case that BL gave JL 'extra' money that this was done to manage the situation as she saw it.
The frustration of the MH team is apparent in their assertion that they are 'not getting anywhere with treatment' of JL. It is noted that JL's ongoing use of illicit drugs while engaged in the IDDP program, even though he was facing charges which might lead to a further term of imprisonment emphasises the difficulty JL faces in abstaining from methamphetamine. The complexity and difficulty confronting JL and all those working with him both within his family and the external services providers is obvious.
Despite BL's lack of acceptance of the centrality of JL's methamphetamine use to his mental health issues up until the first hearing at least, BL supported JL's mental health treatment as it was provided which included involuntary treatment. It is argued she inappropriately sought the MH teams' intervention for JL by seeking admission for him when his behaviour deteriorated, likely due to methamphetamine use. BL says this is what she was told to do by JL's doctors if JL deteriorated. This is supported by the concluding comment on the discharge summary of December 2020. It appeared from that summary that the discharge of JL from hospital was negotiated with BL in family meetings.
This approach changed with the clinical review by the treating team in June 2022 and the application to the Tribunal that was made following the disclosure by BL which I accept was made. The team now argue that JL cannot change (in terms of his drug use) if he continues living with his mother and propose supported accommodation. Family members strongly oppose this view and remain hopeful about rehabilitation for JL. They argue that a supportive family and culturally appropriate services are required for JL to accept any services offered.
As noted, the case review and the decision to make the application proceeded without notice to BL of the specific allegation and despite what has been acknowledged by MF as her role as the main advocate of JL and having in the words of MF providing fantastic support to JL.[76]
[76] ts 35, 7 December 2022.
Following the first hearing at which BL said the trust with the MH team had been broken it seems she did not engage with the MH team despite police involvement with JL on three occasions at least one in which she initiated the contact herself. Any reluctance to engage with MH services, or failure to provide those services to JL may ultimately put BL at greater risk.
The investigator did not support the appointment of a guardian. He argued that JL's needs were met less restrictively in the areas identified including treatment, services, accommodation and legal advocacy.
The investigator submitted that JL lived with his mother as his primary carer in a property purchased by the Public Trustee. The investigator said that BL chose to live with JL and this arrangement was the strong preference of JL. The investigator noted whatever the risk involved to BL (which he had earlier noted was considered less serious by her than by the MH team)[77] that she chose to live with JL and was thereby in effect adopting that risk.
[77] Investigator's report, page 9.
The investigator reported that BL attends most medical appointments with JL and as such could provide consent pursuant to s 110ZD of the GA Act should a consent to treatment be required.[78] He also noted that JL was often treated as an involuntary patient under the MH Act.
[78] As the 'nearest relative' of JL.
In respect of services the investigator submitted there were already many organisations and individuals in the life of JL, that BL had negotiated his NDIS plan and JL was involved and consulted about his services. The investigator submitted that the appointment of a guardian and in particular an independent one would add little value to this mix.
In respect of the proposal for the appointment of an independent guardian to make decisions as to where and with whom JL should live, the investigator questioned the utility of such an appointment given that any appointed guardian could not compel JL to live anywhere and could not impose any rehabilitation program on him.
The investigator argued that despite any view that BL had a conflict of interest, there was in his view, no one more suited as a guardian as she had done more for her son than any independent guardian could hope to replicate.[79]
[79] Investigator's report, page 8.
The investigator noted his obligation to advance the best interests of JL before the Tribunal and said that it was not, in his submission, in the best interests of JL to appoint a guardian. He submitted that there was a least restrictive alternative, being the family support and the services already in place.[80]
[80] ts 43, 7 December 2022.
The need for a guardian pursuant to s 43(1)(c) of the GA Act cannot be assessed against the ability of any guardian to give effect to the decisions made. As held in NCK [2004] WAGAB 6 at [64] the workability or practicality of an order is not part of the statutory criteria for the making of a guardianship order.
It follows that whether a person is in need of a guardian is the ultimate touchstone in relation to which the Board must decide that the order should be made. The concept of need is not to be determined by reference to whether particular 'authoritative' decisions are required on behalf of a person, but whether there is, or may be, a need for a guardian to intervene, in a more generalised sense, in the affairs of that person: see Re Review of Guardianship and Administration Orders in respect of MM (2001) 28 SR(WA) 320; Re LGW now reported as LGW [2004] WAGAB 4 at pp 4 - 10.
This interpretation was adopted in PR [2021] WASAT 32 a decision of the Full Tribunal. There was in that case a question as to whether a guardianship order should be revoked because the represented person had refused to cooperate in engagement of services consented to on his behalf by the Public Advocate's delegated guardian. Acknowledging the difficulties in relation to services the Full Tribunal said in PR at [32]:
… we are of the view that it is in PR's best interests that a guardian be appointed so that the assistance of the guardian may be given at any stage when an occasion arises for such engagement.
I considered whether the breakdown in the working relationship between BL and the MH team gave rise to the need for the appointment of a guardian for JL even following his discharge from that service. Given the history I considered that it was likely JL would require mental health treatment and possibly involuntary admission to hospital in the future and that it would not be in JL's best interests if the appropriate services were not engaged for him.
Ultimately however, I am satisfied that BL would seek mental health intervention if needed following her comments in the final hearing.
The primary consideration of the Tribunal must be the best interests of the proposed or represented person.
Although as the investigator submits, there is no clear explanation of what is meant by the term best interests of the proposed or represented person in s 4 of the GA Act, s 51 of the GA Act, does I consider, provides guidance to me in the factors to be considered in this regard. Section 51 states:
51.Guardian to act in best interests of represented person
(1)Subject to any direction of the State Administrative Tribunal, a guardian must act according to the guardian's opinion of the best interests of the represented person.
(2)Without limiting the generality of subsection (1), a guardian acts in the best interests of a represented person if the guardian acts as far as possible —
(a)as an advocate for the represented person;
(b)in such a way as to encourage the represented person to live in the general community and participate as much as possible in the life of the community;
(c)in such a way as to encourage and assist the represented person to become capable of caring for themself and of making reasonable judgments in respect of matters relating to their person;
(d)in such a way as to protect the represented person from neglect, abuse or exploitation;
(e)in consultation with the represented person, taking into account, as far as possible, the wishes of that person as expressed, in whatever manner, or as gathered from the person's previous actions;
(f)in the manner that is least restrictive of the rights, while consistent with the proper protection, of the represented person;
(g)in such a way as to maintain any supportive relationships the represented person has; and
(h)in such a way as to maintain the represented person's familiar cultural, linguistic and religious environment[.]
Having regard to these factors in particular the obligation on a guardian to encourage the represented person to live in the general community, to take account as far as possible the wishes of that person, to act in a manner that is the least restrictive of the rights of that person consistent with his proper protection, to maintain supportive relationships the person has and to maintain the person's familiar cultural linguistic and religious environment I accept the investigator's submissions that it is not in JL's best interests that a guardian be appointed for him.
This is not a case where there is a lack of family involvement or support which would justify the appointment of the Public Advocate as JL's guardian against his expressed wishes and against the wishes of his family. As noted, if made, the appointment of the Public Advocate as JL's guardian would effectively sideline BL from the advocacy role she has played.
The proposed appointment of the Public Advocate as JL's guardian is not consistent with JL's wishes and would not maintain the supportive relationship BL has played. Having regard to the evidence of BL and AJ, I am also satisfied that such an appointment would not take appropriate account of JL's familial and cultural environment, in particular the recognition and value of the Aboriginal cultural resources available to him. The relevance of cultural and family obligations has been identified in previous decisions of the Tribunal in a different context. (See FS [2007] WASAT 202)
I accept AJ's comments that it would be distressing to JL to separate him from his mother and acknowledge the anxieties experienced by the family about the option of supported accommodation for JL away from his family and community. That being said, BL says she is investigating respite options which if successful may achieve the reduction in contact between JL and BL that Dr T recommended in her 2018 report. If regular respite is arranged this may enable the current housing situation which is JL's preference to be sustained.
Based on the comments of BL and of AJ in the hearing it is clear they support a residential option to address JL's addiction. The lack of progress in dealing with JL's drug addiction, even after his engagement with the IDPP emphasises the intractability of this issue but as noted family members remain hopeful for his rehabilitation. Despite JL's behaviours towards her, BL has remained what the applicant described as his strongest advocate and that may be lost if her role changed.
The reported support for BL's role from the Public Trustee's trust manager, JL's solicitor and the NDIS support coordinator all support the argument that BL acts in JL's best interests in those spheres of decision-making. No need had been demonstrated for the appointment of a guardian with functions for services or legal advocacy.
The intersection of JL's delusional beliefs about BL's safety and his controlling and bullying behaviours together with his ongoing methamphetamine use (with increased impulsivity) must be seen as a dangerous combination. The risk will only be increased if BL is reluctant to engage with MH services or MH services are unwilling to provide admission, based on JL's dual diagnosis, as it is they who have the authority to detain JL under the MH Act. The alternative is again the criminal justice system in which he is now engaged
Although the risk to BL from JL is acknowledged, I accept the submission of the investigator that ultimately the decision to live with JL and adopt that risk is a decision for her. The focus of the Tribunal is the best interests of JL and having considered the provisions of s 51 of the GA Act as outlined above I accept the investigator's submissions that the appointment of a guardian for JL at this time is not in his best interests.
I have determined considering these factors while JL is a person for whom a guardian may be appointed I find that in his present circumstances that JL is not in need of a guardian.
Administration review
I am satisfied that JL remains a person for whom an administer may be appointed as he lacks capacity to manage even simple financial matters. JL's legal estate which is subject to the administration order does not include the funds held in trust by the Public Trustee.
On the available information JL has no income other than distributions from the trust which are at the discretion of the Public Trustee. Because of this there is a question of whether JL remains in need of an administrator at all.
On review BL argued that the administration order should be continued because of the need to provide advocacy to the Trustee and to support JL with day-to-day finances including arranging health insurance.[81] Given JL's impairment I accept that someone with lawful authority to act on his behalf in respect of financial matters which fall outside the scope of the trust, may be needed. I find therefore that JL is in need of an administrator of his estate.
[81] ts 47, 31 August 2022.
The investigator had contacted the Public Trustees' trust manager[82] who it is reported as having a positive working relationship with BL. The investigator argues that even if the Public Trustee was substituted as the administrator, it was likely they would deal directly with BL in the dayto-day management of JL's needs.
[82] The trust manager attended the final hearing by telephone, but the line was lost before his evidence could be taken.
The administration review was not dealt with in any detail as the focus of the hearings concerned guardianship decision-making. The existing conflicts as identified in the application seeking the appointment of a guardian do not preclude the appointment of BL as administrator as there is no mirror provision to s 44(1)(b) in Pt 6 of the GA Act which deals with the appointment of administrators.
For the reasons given in respect of the guardianship application I am satisfied that BL has acted in the best interests of JL and remains suitable for appointment as the administrator of his estate and in my assessment, nothing has been established before me, that currently supports the need to change the existing orders.
The Public Trustee has the overall control of the trust and thereby the funds paid to JL and other distributions made to and on behalf of JL. A copy of these reasons will be provided to the Public Trustee as is the regular practice of the Tribunal.
The Public Trustee's trust managers have considerable experience and expertise of working with family members and service providers where the client has substance misuse problems. It may be that the trust manager may be able to suggest additional strategies to BL to manage and control JL's access to funds for methamphetamine use in addition to the 'Advisory Group' the family have established.
The administration order is due for review in 2024 and at that time there can be further consideration of the need for an administrator of JL's estate.
For these reasons I make the following orders.
Orders
The Tribunal orders:
1.The application for the appointment of a guardian is dismissed.
2.Leave is granted to bring the application for review of the administration order.
3.The application for review of the administration order is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS F CHILD, MEMBER
24 MARCH 2023