K

[2025] WASAT 15

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION:   K [2025] WASAT 15

MEMBER:   MS V HAIGH, MEMBER

HEARD:   29 NOVEMBER 2024

DELIVERED          :   18 FEBRUARY 2025

FILE NO/S:   GAA 3485 of 2024

K

Proposed Represented Person

SERVICE PROVIDER 1

Applicant

Catchwords:

Administration - Meaning of 'mental disability' - Whether proposed represented person has a 'mental disability' - Whether proposed represented person 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

Guardianship - Whether proposed represented person is incapable of looking after his own health and safety, or unable to make reasonable judgments in respect of matters relating to his person; or in need of oversight, care or control in the interests of his own health and safety or for the protection of others

Proposed represented person deaf, mute and illiterate - Communication barriers

Legislation:

Guardianship and Administration Act 1990 (WA), s 4, s 4(3)(a), s 4(3)(b), s 4(3)(c), s 4(3)(d), s 43(1)(a), s 43(1)(b), s 43(1)(b)(i), s 43(1)(b)(ii), s 43(1)(b)(iii), s 64(1)(a)

Result:

Public Advocate appointed limited guardian
Administration application dismissed

Category:    B

Representation:

Counsel:

Proposed Represented Person	:	Ms O Roberts
Applicant	:	In Person

Solicitors:

Proposed Represented Person	:	Aboriginal Legal Service Western Australia
Applicant	:	N/A

Case(s) referred to in decision(s):

FY [2019] WASAT 118

GC and PC [2014] WASAT 10

MH [2022] WASAT 74

MS [2020] WASAT 146

REASONS FOR DECISION OF THE TRIBUNAL:

Background

1. K was born deaf and mute.

2. As a 6 year old he attended [Primary School] on the beautiful and remote lands of his people.  Throughout what was probably his first year at school in 1997 K had the good fortune to spend many hours with a visiting teacher from the WA Institute for Deaf Education.  The language they used to communicate was Auslan.  At the end of the academic year his visiting teacher reported that K was a very capable and enthusiastic learner, held back only by his linguistic needs.  With an interpreter to aid his learning she envisaged that K would be able to leave school with a good understanding of Auslan, age-appropriate English literacy and the same knowledge and skills of his hearing peers.  The visiting teacher recommended that K be provided with access to an interpreter.[1]

   [1] Letter dated 11 December 1997, folio 29, attachment 1.

3. I do not know whether her recommendations were adopted. What I do know is that by the end of 1997 K had received 'only .3FTE of a teacher's aide',[2] and that his grandmother had written seeking more teacher aide time for K.[3]

   [2] Folio 29, attachment 2.

   [3] Folio 29, attachment 2.

4. Fast forward to the age of 25, and K had no recognisable way of communicating and a minimal amount of communication with his mother and a few family members which involved their own style of sign language.[4]

   [4] Individual plan for K - Disability Services Commission dated 22 February 2016, folio 29 attachment 3.

5. By the age of 34 (his current age) he cannot read or write. He communicates using his own Aboriginal hand sign mixed with a hand sign that K has developed in his own family,[5] and some Auslan, and visual aids.

   [5] ts 3, 29 November 2024.

6. K has spent time in and out of prison.  When he is not incarcerated, he continues to live on the lands of his people, sometimes living with his family out of [town], and sometimes with his family in [town].

The application and background

1. The application I must decide is an application by Service Provider 1 made pursuant to s 40 of the Guardianship and Administration Act 1990 (WA) (GA Act), for the appointment of both a guardian and an administrator for K.

2. The application was prompted by concerns about K's welfare (observed neglect, malnourishment, and increasing aggression) and his financial vulnerability and lack of access to funds.

3. K is alleged to have destroyed ATM machines in January 2024 in [town] which have resulted in his bank account being closed and him being banned from the only branch of his bank in [town].  There are fears about his vulnerability to retribution due to the destruction of the ATMs as he has been publicly named as the culprit.[6]

   [6] Service Provider 2 Report dated 20 July 2024.

4. K has been charged with four counts of property damage in relation to the destruction of the ATMs and remanded in custody.[7]  He was released from the [regional] prison on 26 Sept 2024[8] and at the date of the hearing of this application was living in the community awaiting trial in relation to those charges.

   [7] OPA report dated 10 September 2024, folio 17.

   [8] Submissions dated 27 November 2024 by ALSWA, para 8.

5. The concerns about K's welfare are shared by multiple stakeholders, who have urged the application be made[9] and it is noteworthy that concerns about K's welfare were the subject of a community referral to the Office of the Public Advocate (OPA) prior to this application being made.[10]  The OPA investigator has observed that the application has been made in an attempt to effect meaningful change for K.  Service providers consider that K needs the kind of help that orders could provide, to ensure that K's best interests are advanced.[11]

   [9] Application.

   [10] ts 44, 29 November 2024.

   [11] OPA report dated 10 September 2024, folio 17.

6. On 19 September 2024 s 65 orders were made appointing the Public Trustee on an emergency basis as the plenary administrator of K's estate in order to protect and secure his estate, pending determination of the question of whether K is a person for whom administration orders may be made.

7. For the reasons set out below I have determined that the application for the appointment of an administrator be dismissed, and that OPA be appointed as limited guardian to make treatment decisions, services decisions, decisions about restrictive practices/restraint, and accommodation for a period of two years.

8. I am concerned about K and how this decision will be communicated to him.  I have therefore prepared an Annexure which is attached to these reasons with a pictorial representation of my orders, for K's benefit.

Principles to be observed

1. In determining whether to appoint a guardian and administrator for K I must have regard to the principles set out in s 4 of the GA Act which provide that:

   (1)my primary concern must be the best interests of the proposed represented person;

   (2)the proposed represented person is presumed to be capable of looking after their own health and safety, making reasonable judgements in respect of matters relating to their person, managing their own affairs and making reasonable judgements in respect of matters relating to their estate until the contrary is proven to the satisfaction of the Tribunal;

   (3)a guardianship/administration order must not be made if the needs of the proposed represented person could be met by other means less restrictive of their freedom of decision and action;

   (4)where an order is made, it must be in terms that impose the least restrictions on the proposed represented person's freedom of decision and action; and

   (5)I must seek to ascertain the views and wishes of the proposed represented person.

The issues

1. The issues I must determine are:

   Issue 1:      Is K capable of making reasonable judgments in respect of his estate and/or his person?

   Issue 2:      If the answer to issue 1 is no in relation to his estate is K unable by reason of a mental disability to make reasonable judgments in respect of matters relating to all or any part of his estate?

   Issue 3:      If the answer to issue 1 is no in relation to his estate, does K need an administrator or is there a less restrictive alternative to the appointment of an administrator?

   Issue 4:      If K needs an administrator who should be appointed?

   Issue 5:      If the answer to issue 1 is no in relation to his person, is K incapable of looking after his own health and safety, or unable to make reasonable judgments in respect of matters relating to his person, or in need of oversight, care or control in the interests of his own health and safety or for the protection of others?

   Issue 6:      If the answer to issue 1 is no in relation to his person, does K need a guardian or is there a less restrictive alternative to the appointment of a guardian? 

   Issue 7:      If K needs a guardian who should be appointed?

   Issue 8:      If guardianship and/or administration orders are made, how long should the orders run before they are reviewed by the Tribunal?

The evidence before the Tribunal

1. The hearing of this matter took place on 29 November 2024 in Perth.

2. K, his legal representative from the Aboriginal Legal Service of WA (ALSWA), his mother and an interpreter from the Aboriginal Interpreting Service (AIS) were located at the ALSWA office in [town] and they participated by MS Teams.

3. The AIS interpreter has known K in a professional capacity since K was five years old, including having interpreted for K at medical appointments, and in his interactions with the police.  The AIS interpreter stated that he was using Aboriginal hand signing that K grew up with, which I understand to be [Indigenous language].  He elaborated that K's first language is his own Aboriginal hand sign 'mixed with a hand sign that [K] developed in his own family'.[12]  The AIS interpreter also used visual aids to communicate with K.

   [12] ts 33, 29 November 2024.

4. A further two interpreters interpreted consecutively in Auslan, via MS Teams.

5. K's legal representative stated that K's preferred interpreter was the AIS interpreter, and as the hearing progressed it appeared that K was largely relying on the AIS interpreter to interpret for him.

6. K was supported during the hearing by a support worker from Service Provider 2 who brought K and his mother to the hearing but played no further part in the hearing.

7. Also appearing via MS Teams was Ms D, the Specialist Support co­ordinator at Service Provider 1. Ms D stated that she does not really know K very well at all, and had not worked with him face-to-face,[13] and for these reasons she was unable to contribute much to the hearing, notwithstanding that it was her organisation's application. She nevertheless provided an email (referred to in the documents below) regarding K's current and proposed National Disability Insurance Scheme (NDIS) services.

   [13] ts 41, 29 November 2024.

8. The investigator from OPA appeared in person in Perth. 

9. Given the difficulties in communicating with K the Tribunal scheduled the hearing to take place in [town] on his land, in an endeavour to assist communication.  Unfortunately, in the week prior to the second scheduled hearing date, the first having been rescheduled at K's request to enable him to obtain legal representation, the Tribunal was advised that one of the interpreters was not available and the hearing was again rescheduled and took place in Perth a few days later.

10. The documentary evidence on which I have relied includes the following:

    (1)Medical records from the [town] Hospital, the [town] Mental Health and Drug service (since K's date of birth), the [Health Service] (from K's date of birth), and the [Health Service] (from K's date of birth).

    (2)A medical report from the [Health Service] (Dr C) dated 31 July 2024.

    (3)A medical report from the [regional] prison (Dr S) dated 9 September 2024.

    (4)A service provider report from Service Provider 2 dated 20 July 2024 (SP).

    (5)A service provider report from Service Provider 1 (Mr F) dated 30 July 2024.

    (6)A service provider report from the [region] Mental Health and Drug Service (Nurse G) dated 30 July 2024.

    (7)Report from the Public Trustee filed 20 November 2024.

    (8)Report from OPA dated 10 September 2024 and further submissions dated 25 November 2024.

    (9)Statement of K's mother, Ms C dated 26 November 2024.

    (10)Statement of K dated 26 November 2024.

    (11)Submissions from the ALSWA dated 27 November 2024.

    (12)Email dated 26 November 2024 from Ms D of Service Provider 1.

Communicating with K

1. A feature of this case is the communication challenge it has presented to everyone involved, including the Tribunal, notwithstanding the assistance of interpreters.

2. As I have already stated, K communicates using his own Aboriginal hand sign mixed with a hand sign that K has developed in his own family,[14] and some Auslan.

   [14] ts 3, 29 November 2024.

3. K also communicates using visual aids.  For example, a picture of the Public Advocate and the Public Trustee with a red cross through it conveyed to the AIS interpreter that K was against the Public Advocate and the Public Trustee.[15]  K's written statement[16] prepared with the assistance of his legal representative, was an interpretation of the pictures attached to his statement, each paragraph corresponding to a picture.  Representatives from OPA who travelled to [town] and met with K also communicated with him with the assistance of visual aids.[17]

   [15] ts 8 - 9, 29 November 2024.

   [16] K's statement dated 26 November 2024, folio 39.

   [17] Folio 37.

4. Further, K uses gestures to communicate[18] and he did this throughout the hearing.  This is also a feature of his communication with medical professionals and service providers. 

   [18] For example, ts 6, 13, 14, 17, 25, 26, 29 November 2024.

5. The investigator from OPA commented that K's language is largely unique to his family group, and the Tribunal agrees with this assessment.[19]

   [19] OPA report dated 10 September 2024, folio 17.

6. The medical records note that K uses 'non-Auslan, family evolved sign language to communicate'[20] and one can see throughout the medical evidence the difficulty that the communication challenges have posed for the medical professionals.

   [20] Medical records - [Mental Health and Drug Service], folio 30.

7. Throughout the hearing K deferred repeatedly to his mother to speak on his behalf.[21].

   [21] For example, at ts 9, 16, 25,28, 29 November 2024.

8. At the hearing, even with the aid of interpreters, it was at times difficult to be sure what K was endeavouring to convey, and to be sure that what I said was conveyed to K in a way he understood.  For example, interpreting 'decision', 'someone managing money', 'substitute financial decision-maker' were difficult words/concepts for the interpreters to convey to K.[22]

   [22] ts 18, 22, 37, 38, 29 November 2024.

9. Service providers who have used a local interpreter who uses some [Indigenous language] sign, have reportedly been unconvinced whether it effectively improved K's understanding of discussions or his ability to make his views known.[23]  I was left with the same impression.

   [23] OPA report dated 10 September 2024, folio 17.

10. Further, communication was across a cultural divide.  For example, when I asked K if he might want someone to make decisions about NDIS services (for him) the AIS interpreter stated that:

    … some things are difficult to interpret in Aboriginal hand sign, and Aboriginal classical tribal languages as well because of cultural differences, and, you know, all kind of political world view differences. I think he struggles sometimes to understand when we are trying to ask him about people making decisions for him. 

    Given that the heart of a guardianship/administration application is whether someone is needed to make decisions on behalf of another, this is problematic.

11. For these reasons I have been cautious in my approach to K's evidence.

Views/wishes

1. K's statement, provided with the assistance of his legal representative, sets out his views and wishes.[24]  His views and wishes were conveyed via pictures which were then put into sentences.  His views and wishes set out in the statement are as follows. 

   [24] K's statement dated 26 November 2024, folio 39.

2. K says that he wants to have a job, get a driver's licence, live in his own place, drink less alcohol, and get his Centrelink on his keycard.  He likes to buy food and clothes with his money.  He gets NDIS and likes to work with his NDIS providers.  He likes the idea of a house with NDIS help.  He wants his mum to do the NDIS contracts.  K says that he takes medication that makes his stomach feel no good.  He states that sometimes he doesn't want to eat much.[25]

   [25] K's statement dated 26 November 2024, folio 39.

3. In his statement K says he wants to make his own decisions.  At the hearing he indicated that he gets angry when other people try and make decisions for him. [26]

   [26] ts 20, 29 November 2024.

4. He does not want the Public Advocate or the Public Trustee,[27] and he indicated this repeatedly[28] at the hearing, and I accept this.[29]  In his statement he stated that he gets angry when he cannot control his money and that it makes him wild when he thinks someone has his money.  He acknowledged that before he went to prison his uncles were taking his money.

   [27] K's statement dated 26 November 2024, folio 39.

   [28] ts 8, 9 and 10, 29 November 2024.

   [29] K's statement dated 26 November 2024; ts 9 - 12, 29 November 2024.

5. At one point the AIS interpreter, commented, unusually for an interpreter, but no doubt based on his work interpreting for K over many years, 'it's quite clear, I think, to everyone that works with him and comes around him, that he wants to make all his decisions himself'.[30]

   [30] ts 19, 29 November 2024.

6. His legal representative submitted that K strongly opposes orders being made.  She submitted that K had been adamant in all of his dealings with her, that he does not want someone managing his money.[31] I accept her submission, based as it was on multiple interactions with K, including two trips to [town] to meet him face-to-face, and it is consistent with the observations of the AIS interpreter based on his lengthy association with K,[32] and K's evidence at the hearing.

   [31] ts 39, 29 November 2024.

   [32] Submissions dated 27 November 2024 by ALSWA, para 48; ts 39, 29 November 2024.

7. His legal representative submitted that K's purported vulnerability is due to his inability to communicate with those around him.  She submitted that K is currently working with a speech therapist and should shortly receive assistive hearing technology, and that his ability to communicate is likely to improve in the near future.[33]

   [33] Submissions dated 27 November 2024 by ALSWA, para 10.

8. His legal representative submitted that the presumption of capacity is not rebutted and further that there is no need for the appointment of either a guardian or an administrator, and that the application should be dismissed.[34]

   [34] Submissions dated 27 November 2024 by ALSWA, paras 9 and 49.

9. In the circumstances I consider that the impression gained by the OPA representatives at their meeting with K, that he was agreeable to the appointment of a guardian and wanted someone to help with his money,[35] is not a current reflection of his views and wishes.

   [35] OPA submission dated 25 November 2024.

Issue 1:  Is K capable of making reasonable judgments in respect of his estate and his person?

1. The statutory presumption is that every person is presumed to be capable of:

   (a)looking after his own health and safety;[36]

   (b)making reasonable judgments in respect of matters relating to his person;[37]

   (c)managing his own affairs;[38] and

   (d)making reasonable judgments in respect of matters relating to his estate.[39]

   [36] GA Act, s 4(3)(a).

   [37] GA Act, s 4(3)(b).

   [38] GA Act, s 4(3)(c).

   [39] GA Act, s 4(3)(d).

2. There must be clear and cogent evidence to rebut the statutory presumption of capacity.[40]

   [40] GC and PC [2014] WASAT 10 at [36], quoted in MH [2022] WASAT 74 at [130] - [131].

3. I will deal firstly with K's capacity to make reasonable judgments about his estate.

The nature of K's estate

1. K's estate is very simple.

2. He receives the disability support pension and he has accounts at the grocery store and the clothing store.  These are his only necessary expenditures.  His discretionary spending is on alcohol, cannabis and cigarettes.

1. Following the closure of K's bank account because of his destructive behaviours, his pension payments were being made to his aunt who then provided cash to K.  His aunt is not prepared to continue to manage K's money.

2. Since the s 65 orders were made, the Public Trustee identified issues of concern in their report, which relate to K's lack of a bank account. The Public Trustee gathered identification documents required to open a new bank account and provided them to K's legal representative to take with her to [town]. A new bank account has since been opened for K, with the assistance of Service Provider 2, although at the date of the hearing he had yet to receive his bankcard.[41]  The Public Trustee has not had any contact with K, and all communication regarding K's finances has been through independent third parties. 

Can K make reasonable judgments in respect of his estate?

[41] ts 12 - 13, 29 November 2024.

1. In FY at [53][42] the Tribunal said:

   An individual's ability to make reasonable judgements in respect of their estate may depend on a variety of factors, such as their health, particularly their mental health, at any point in time.  Fundamentally, however, a person's ability to make reasonable judgements about their estate requires that they have the intellectual ability necessary to make decisions of that kind.  An individual's ability to make reasonable judgements in respect of their estate requires that they have, amongst other things, the ability: to understand the need for, and sources of, income available to them; to understand the value of any income received relative to items of expenditure; to identify and calculate necessary expenditure for day to day living, together with expenditure for longer term financial objectives and discretionary items; to devise a budget so as to be able to live within their means; to identify and to assess the financial implications of particular items of expenditure or of financial decisions (for example whether to enter into contracts such as those for the purchase of a phone, household items, a car, or a house); to organise their affairs so as to be able to meet debts as they fall due; and to identify and implement problem solving strategies for resolving any unexpected financial issues.(My emphasis)

   [42] FY [2019] WASAT 118.

2. In assessing whether K has the ability to make reasonable judgments in respect of matters relating to his estate I have taken into account the simplicity of his estate, his own evidence and the evidence of others. 

The evidence regarding whether K can make reasonable judgments in respect of his estate

1. The only two medical reports available to the Tribunal were provided by Dr S and Dr C.

2. Dr S, who is from the [regional] prison where K had been held in remand, provided a report to the Tribunal based on her examination of medical records since 2015 to the present.  It does not appear that Dr S has met K.[43]

   [43] Report dated 9 September 2024 folio 19, Dr S's email dated 21 November 2024, folio 35.

3. Dr C, who is from the [Aboriginal Health Service], provided a report to the Tribunal based on the notes held by the [Aboriginal Health Service], and K's one consultation with her on 15 July 2024.[44]

   [44] Folio 8.

4. Both Dr S and Dr C were unsure as to K's capacity to make decisions for himself about his estate. 

Service provider report - Service Provider 1 - Mr F - (specialist support coordinator)[45]

[45] Service Provider Report of Service Provider 1, folio 7.

1. At the time of writing his report Mr F had known K for six months.  Ms D has taken over that role recently.

2. In respect of K's cognitive capacity to make financial decisions Mr F reports that K does not have a basic level of literacy or proficiency in English or Auslan and 'as such he appears to me to not have capacity to make complex financial decisions where these skills may be required'.

3. In Mr F's view K can make simple purchases such as retail purchases using cash or a bankcard.  In his view, K's hearing impairment precludes him from having control of his own financial affairs.

[Mental Health] and Drug Service - Nurse G (clinical nurse specialist)[46]

[46] Service Provider Report of [Mental Health and Drug Service], folio 5.

1. At the time of writing her report Nurse G had known K four years, and it is evident from the medical records that she has had extensive interactions with K over that period. 

2. Nurse G reports, and I accept, that K is reliant on his family to provide him with his basic needs, and that his mother reports regular threats from K to give him money.

3. Nurse G reports, and I accept, that K is often hungry and requests assistance from their service to locate his key card which is usually in someone else's possession.  She reports, and I accept, that on multiple occasions when he has requested assistance with using his in-store credits at the IGA he has made excellent decisions with the produce he intended to purchase only to discover that he had no credit when it came to the actual purchase of the items, and I place great weight on this evidence.

4. Nurse G expressed the view that what is happening to K's money seems to be the catalyst for his behaviours.

5. She believes that K is vulnerable to exploitation by others as demonstrated by his low weight, never being in possession of items like cigarettes and food and because he has requested assistance many times to try to locate his key card.  Further Nurse G reports, and I accept, that there is evidence historically of his funds being redirected out of his account to someone else.  She reports, and I accept, that K is banned from the bank, and that his aunt distributes money to him.

6. When the OPA investigator spoke with Nurse T, who is also from the [Mental Health] and Drug Service about the challenging behaviours exhibited by K, Nurse T expressed the view that this is more about his underlying frustrations and anger at his financial circumstances, compounded by his communication difficulties, than supporting the view that K is mentally unwell.

Service Provider 2 (Nurse P)[47]

[47] Service Provider Report, Service Provider 2, folio 4.

1. Nurse P of Service Provider 2 had known K only six weeks at the time of writing his report.

2. When asked whether K makes financial decisions in his own best interests, Nurse P stated that K 'would [spend] all his money on alcohol or smokes'.  It is unclear whether this is prospective, or an observation about what K in fact spends his money on. 

3. When asked whether K is able to make simple and/or complex financial decisions Nurse P responded, 'not at all, his mother is the nominee at (the) Centrelink'. 

OPA visit - September 2024[48]

[48] Folio 36.

1. Two representatives from OPA (not the OPA investigator) met with K in September 2024 at the [regional] prison.

2. A summary of their meeting with K indicates that in attendance and assisting with communication were the education officer at the prison, two inmates, one of whom was a relative and the other a friend of K's.  The education officer had prepared visual aids and it appeared that the education officer was also signing and she was the main person facilitating the communication.  In the circumstances the OPA investigator recognised the limitations of how much can be interpreted from the meeting and I agree.

3. In summation, K indicated to the representatives that because he could not get money from the ATM he broke it, that his uncles' take his money, that he was agreeable to having help with his money, and that his mother was good and gave him money.

4. It appeared to the representatives that K has some capacity to comprehend what is being asked of him, that he was vulnerable both mentally and financially and that it was hard to engage with him.

5. The OPA investigator urged caution in interpreting K saying he wants help with his money as him being agreeable to having an administrator appointed, noting that his instructions to his lawyer are now quite the opposite.

6. It is reported by the OPA investigator[49] that Ks aunt's view is that K's big money problems began when the government introduced the Indue card (a now ceased cashless debit card scheme), which she says K did not cope well with, and I accept that evidence.  His aunt's view is that when K had his own account and received his own pension, he knew what was going on and coped well, and that any deviation from that has made him suspicious and angry.  His aunt's evidence is consistent with K's evidence that he gets angry when he cannot control his money.  I note that trials of the Indue card began in [town] in April 2016, and that the effect of the card was to quarantine 80% of a person's welfare payments onto a card that cannot be used to withdraw cash or buy certain prohibited items.[50]  In his aunt's view appointing an administrator is only likely to make K more frustrated and angrier and lead to more behaviours that will land him in trouble.[51]  Again, his aunt's view is consistent with K's own evidence.

   [49] OPA report dated 10 September 2024, folio 17.

   [50] The Guardian, 19 February 2020.

   [51] OPA report dated 10 September 2024, folio 17.

7. I pause here to observe that whilst K's financial difficulties appear to have commenced following the introduction of the Indue card and his loss of autonomy in relation to his finances, I am unable to make a finding as to whether this was the cause of his problems.

Conclusions - whether K can make reasonable judgments about his estate

1. On the basis of the evidence overall, I am satisfied and I find that K is unable to manage his own affairs or make reasonable judgments in respect of matters relating to his estate because he is unable to identify and implement problem solving strategies for resolving any unexpected financial issues.  The basis for my finding is as follows.

2. Firstly, I infer that without the intervention of third parties K would not have been able to open a new bank account on his own.  My inference is supported by the fact that K's aunt received and managed his pension payments following the closure of his bank account. 

3. Secondly, whilst I accept the evidence of Mr F and Nurse G that K is able to make simple financial decisions to purchase everyday items such as food and clothing and that he makes excellent decisions in respect of the produce he intends to purchase, he then finds he has no funds to make the purchase.

4. K's own evidence, which I accept, is that he is always without money, and that people misuse his money and I so find.[52]  K stated, and I accept, that he was not sure of the solution to that problem (of always being without money).[53]  On K's own evidence, he lacks the ability to problem solve.

   [52] ts 38, 29 November 2024.

   [53] ts 38, 39, 29 November 2024.

5. I accept K's evidence that before he went to prison his uncles would take his money.[54]  K has stated that if he gets a keycard he will 'keep it on me at all times and not give it to anyway [sic]'.[55]  However when asked what he would do if his uncles' came and asked him for something and he had money/keycard/bank card in his pocket, whether he would give it to them, he responded '[y]ou can ask my mum, but yes, maybe.  It depends.  Perhaps'.[56]  All of K's service providers have raised concerns about his financial vulnerability and I share their concerns.  In light of the evidence of K's past susceptibility to such requests for his card/money I am in real doubt as to whether he would be able to refuse such requests in the future. 

   [54] K's statement dated 26 November 2024.

   [55] K's statement dated 26 November 2024.

   [56] ts 16, 29 November 2024.

6. Thirdly, K repeatedly loses his bankcard, and he has requested assistance 'too many times'[57] from the [Mental Health and Drug Service] to try to find it.  When asked what he would do if he lost his bankcard again, K responded 'I don't know, I really don't know'.[58]

   [57] Service Provider Report, [Mental Health and Drug Service], folio 11.

   [58] ts 13 - 14, 29 November 2024.

7. Fourthly, I accept that K regularly threatens his mother to give him money.

8. Fifthly, on K's own evidence, when he could not get money from the ATM, he broke it. 

9. Sixthly, K's difficulties managing his simple estate have prevailed since at least 2020 without him being able to resolve them. 

10. K's evidence, and the evidence of service providers left me with real doubts as to his ability to make reasonable judgments about his estate or manage his own affairs, other than being able to make excellent decisions in relation to everyday items such as food and clothing, that he wishes to purchase.

11. K's difficulties with money also have implications for his ability to look after his own health and safety given that his lack of funds impacts his ability to buy food.  His difficulties with money are also linked to his aggressive behaviour towards himself and others (including his family) and also property when he does not have access to money, which in turn have put him at risk of retribution from the community following the closure of ATMs in [town].

12. It is also apparent that given that K cannot read or write, and has limited ability to communicate, it is much more difficult for him to make reasonable judgments about his estate.  These factors give rise to practical difficulties in making decisions in respect of financial matters, however they do not of themselves render a person incapable of making reasonable judgments about financial matters.  That is because strategies can be put in place to overcome them.  However, K has been unable to put strategies in place to overcome these practical difficulties.  It is possible that if strategies are put in place to enable K to communicate, there may be a change to his ability to manage his own affairs and make reasonable judgments about his financial affairs.  

13. Taking into account all of the evidence I am satisfied and I find that on the balance of probabilities K is unable to manage his own affairs or make reasonable judgments in respect of matters relating to all or any part of his estate. I am satisfied, to that extent, that the presumption of capacity in s 4(3)(c) and (d) of the GA Act has been displaced by the clear and cogent evidence to which I have referred.

14. I turn now to consider whether K is capable of looking after his own health and safety and making reasonable judgments in respect of matters relating to his person.[59]

Whether K is capable of looking after his own health and safety, and making reasonable judgments in respect of matters relating to his person[60]

[59] GA Act, s 4(3)(a) and s 4(3)(b).

[60] GA Act, s 4(3)(a) and s 4(3)(b).

1. Both Dr C and Dr S were unsure as to whether K had capacity to make reasonable decisions about his medical treatment, accommodation, and services. 

2. Similarly, service providers found it difficult to form a view about K's decision-making capacity, largely due to the difficulties in communication. 

3. In my examination of the evidence overall, there are three aspects of K's personal welfare that I consider demonstrate his inability to look after his own health and safety and/or make reasonable judgments in respect of matters relating to his person.

Low weight

1. The first relates to his low weight.

2. Nurse G has given evidence, which I accept, that K's health and safety is at risk due to his continued weight loss.  His weight has declined from 49 kilograms in June 2021 to 41 kilograms in January 2024 and I make this finding.[61]  Further Nurse G gave evidence that K is undernourished with an iron deficiency and I so find.

   [61] [Mental Health and Drug Service] records, folio 30.

3. This decline in K's physical health is a cause for great concern.

4. To some extent the current concerns about K's low weight/malnourishment relate to his lack of access to funds, for example being unable to pay for groceries at the IGA due to there being no funds in his account.

5. However, it appears there are other factors contributing to K's low weight.

6. I accept the evidence in the medical notes that in May 2020 (see paragraph [139] below) K had been refusing to eat for a week, albeit in the context of his increasing aggression (towards himself and others) over a bankcard being taken by a family member.  

7. K's own evidence is that sometimes he does not want to eat much. This is corroborated by his mother who has stated that she cooks a big dinner for everyone, but K does not want to eat, and I accept that evidence.[62]  Further it is corroborated by one of his support workers who says that they take K to Tuckerbox for a meal each day, but that he 'doesn't eat much'.[63]  I accept K's evidence at the hearing that he is always hungry, and this is corroborated by the notes made by Nurse G in July 2024 (referred to at paragraph [174] ) and I so find.

   [62] Mrs C's statement dated 26 November 2024, folio 38.

   [63] Submissions dated 27 November 2024 by the ALS, para 36.

8. In the Disability Services Commission Plan for K in 2016, one of the goals identified was that K wanted to improve his eating and nutrition as a way to maintain good health.  This suggests that low weight and appetite may have been an issue since 2016.  

9. On the evidence before me I am satisfied and I find that K is not capable of looking his own health and safety and making reasonable judgments in respect of his person because of the risks to his health and safety posed by his low weight and lack of appetite, which have been of concern since at least 2020 and possibly since 2016.

10. The second aspect of K's personal welfare that demonstrates his inability to look after his own health and safety and make reasonable judgments about his person relates to his increasing aggression.

Increasing aggression/behavioural issues

1. Since at least 2019 K has demonstrated aggression towards himself, others and property, which is documented at length in the medical evidence below.

2. As I have already observed, some of K's aggressive behaviour towards himself and others (including his family) and also property is linked to his lack of access to money.

3. Further the naming of K as the culprit in connection with the destruction of ATMs in [town] has also put him at risk of retribution from the community following the closure of ATMs in [town], thus posing a risk to his own personal health and safety.

4. On the evidence before me I am satisfied and I find that K is not capable of looking his own health and safety or able to make reasonable judgments in respect of his person because of the risks to his health and safety posed by his aggression towards himself, others and property.

5. The third aspect of K's personal welfare that demonstrates K's inability to look after his own health and safety relates to his access to services.  

Services

1. Ms D (his current support co-ordinator at Service Provider 1) expressed concerns around K's capacity to provide informed consent to services.  She notes that with limited options for interpreting, staff have referred to communication books and simple hand gestures.  I observe that her concerns around K's capacity to provide informed consent are due to the difficulties in communication.

2. Ms D raised the possibility of K's mother being appointed as his NDIS nominee, which would mean NDIS supports including herself and NDIS representatives can contact and discuss with his mother directly and she can make decisions about K's supports.

3. I accept the evidence that to date K has been signing his own NDIS contracts,[64] which is problematic given that he does not read or write, and for that reason would not appreciate the implications of what he is signing.

   [64] Report of OPA dated 10 September 2024, folio 17.

4. On the evidence before me I am satisfied and I find that K is not capable of looking after his own health and safety because his limited ability to communicate and his inability to read and write mean that he is, on his own, unable to ensure that he has access to the services that he requires.

Conclusion:  whether K is capable of looking after his own health and safety and making reasonable judgments relating in respect of matters relating to his person

1. Taking into account all of the evidence I am satisfied on the balance of probabilities that K is not capable of looking after his own health and safety and making reasonable judgments in respect of matters relating to his person. I am satisfied, to that extent, that the presumption of capacity in s 4(3)(a) of the GA Act has been displaced by the clear and cogent evidence to which I have referred.

2. K is therefore a person for whom I can appoint a guardian.

Issue 2:  Is K unable by reason of a mental disability to make reasonable judgments in respect of matters relating to all or any part of his estate?

1. Before appointing an administrator, I must be satisfied that K 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.[65]

   [65] GA Act, s 64(1)(a).

2. I will turn firstly to consider whether K has a mental disability. 

Mental disability - the law

1. The Full Tribunal considered the meaning of 'mental disability' in the case of FY [2019] WASAT 118.

2. Given that this is the central issue in this case, it is helpful to set out the Full Tribunal's consideration of the meaning of mental disability in full as set out in [24] - [32] inclusive, citations omitted.

   24The term 'mental disability' is defined in s 3(1) of the GA Act as follows:

   mental disability includes an intellectual disability, a psychiatric condition, an acquired brain injury and dementia[.]

   25For present purposes, six features of that definition of 'mental disability' should be noted.

   26First, the definition is an inclusive one, rather than an exhaustive one. In other words, the ordinary meaning of the term 'mental disability' remains relevant. The Tribunal considered the ordinary meaning of the term 'mental disability' in S and SC.  As the Tribunal noted in that case, the ordinary meaning of the word 'mental' is 'of or in the mind'. The Tribunal noted that the word 'disability' has various meanings including 'a lack of some asset, quality or attribute that prevents someone doing something', 'a lack of competent power, strength or physical or mental ability', 'a particular physical or mental weakness or incapacity' and 'any restriction or lack of ability to perform an activity in the manner and within the range considered normal for a human being'. The Tribunal also noted that the meaning of the word 'disability' when used in a legal context is 'an inability to perform some function' or 'an objectively measurable condition of impairment, physical or mental, that prevents a person from engaging' or 'the total or partial loss of a person's mental or bodily functions', including 'a disorder that results in a person learning differently to a person without the disorder and a disorder that affects a person's thought processes, perceptions of reality, emotions or judgments or that results in disturbed behaviour'.

   27The ordinary meaning of the term 'mental disability' in the GA Act thus contemplates that a person's mind is affected by an impairment, incapacity or inability to function in a manner, or within a range, considered normal, or which is objectively measurable. A mental disability may manifest in a variety of ways, including as a disturbance or limitation in a person's thought processes or their cognitive ability, in their perceptions of reality, emotions or judgments, in disturbed behaviour or in learning difficulties.

   28Secondly, the definition of the term 'mental disability' in the GA Act also expressly encompasses certain recognised medical conditions or diagnoses, each of which may result in some impairment in the functioning of a person's mind.

   29Thirdly, one of the 'mental disabilities' to which the definition expressly refers is an 'intellectual disability'. The word 'intellectual' means 'relating to the intellect', and 'intellect' means 'the power or faculty of the mind by which one knows, understands, or reasons, as distinct from that by which one feels and that by which one wills; the understanding or mental capacity, especially of a high order'.  The word 'intellect' also means 'that faculty, or some faculties, of the mind … by which a person knows and reasons; power of thought; understanding; and analytic intelligence'.  An 'intellectual disability' contemplates that a person's power to understand or reason is affected by an impairment, incapacity or inability to function in a manner which is outside the normal range, or which is objectively measurable.

   30Fourthly, the definition does not contain any requirement that the 'mental disability' be permanent. Some mental disabilities are permanent, and some (such as some psychiatric conditions) may be experienced transiently. Quite apart from their genetic make­up, an individual's mental ability at any stage of their life may be affected by a range of considerations, including their age, education, their overall health, including their mental health, and in particular any conditions, diseases or disorders which they may suffer or develop over their lifetime, and any injuries they may suffer in the course of their lifetime, which result in permanent or temporary impairment of their mental functioning. For the purposes of the GA Act, it matters not whether a person has a mental disability because they were born with an intellectual disability, whether they have developed an impairment in their mental functioning as a result of a disease or a medical condition, or whether they have experienced that impairment as a result of an acquired brain injury.

   31Fifthly, the definition of 'mental disability' does not require any precise degree of mental disability, measured by reference to some medical or scientific benchmark. That no doubt reflects the fact that a person's mental ability may be located at any one of an infinite number of points along a spectrum, or points plotted on a grid, which represents the various aspects of cognitive functioning, including the speed and ease of information processing, problem solving, reasoning, and memory. For the purposes of s 64 of the GA Act, the only relevant measure, in relation to a person with a 'mental disability', is whether the person is unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all or any part of their estate.

   32Sixthly, nothing 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. (Emphasis added)

The evidence in relation to whether K has a mental disability

1. Given that the question as to whether K has a mental disability is the central issue in this case, I now set out the evidence in some detail and in chronological order.

2. It is not in dispute that K is deaf and mute.

Ms S's report[66]

[66] Letter dated 11 December 1997, folio 29, attachment 1.

1. Ms S, a visiting teacher from the WA Institute for Deaf Education, worked with K for half an hour four times a week throughout the 1997 school year to develop K's language skills.  Ms S opines that Auslan, being K's language and the language they used to communicate, is a complex and sophisticated language of a minority group and that deaf people are recognised as a linguistic minority rather than a disabled group.  As I have already stated, Ms S's view was that K was a very capable, and enthusiastic learner, held back only by his linguistic needs not because he is disabled.

2. Ms S opined that an interpreter was essential in providing K with access to his first language (Auslan), to enable him to be a fully functioning and equal member of his class.  Ms S concluded that:

   through an interpreter we can aim that [K] will leave [school] with a good understanding of his first language, age-appropriate English literacy skills and the same knowledge and skills as his hearing peers.  The denial of an interpreter denies [K] access to the richness and complexities of language which are essential for educational success.

3. Ms S's report is the earliest evidence in relation to the impact on K of his congenital condition, and a promise of what might have been.  I accept the contents of Ms S's report, based as it was on her extensive interactions with K during 1997.

4. As I have already stated, by the end of 1997 the local area coordinator of the Disability Services Commission observed, and I accept, that K was only receiving .3 FTE of a teacher's aid and that according to Ms S he was demonstrating a level of understanding that was age-appropriate but because he is deaf he cannot access the school curriculum without a signing interpreter/aide.  The local area co­ordinator expressed the view that it was imperative for K's learning that he has a full-time signing aide in order for him to learn and develop at an age-appropriate level.  The local area co-ordinator urged an increase in K's aide time.[67]  As I have already stated, K's grandmother also wrote a letter requesting more aide time for her grandson.[68] 

   [67] Letter dated 12 December 1997 from local area coordinator of the Disability Services Commission, folio 29, attachment 2.

   [68] Letter dated 12 December 1997 from K's grandmother, folio 29, attachment 2.

2016 - Disability Services Commission Plan

1. However, by the time K was 25 he was observed to have no recognisable way of communicating. He had a minimal amount of communication with his mother and a few family members which involves their own style of sign language,[69] and I make that finding.

   [69] Individual plan for K - Disability Services Commission dated 22 February 2016, folio 29, attachment 3.

2019

[Town] Hospital

1. The earliest record of any purported psychotic breakdown is in March 2019 when at the age of 28 K presented to [Town] Hospital.[70]

   [70] The medical records note no previous psychiatric history - see Medical Records - [Mental Health and Drug Service], folio 30.

2. When K was triaged, it was noted that there were difficulties in assessing and communicating with K which evidence I accept, and I make that finding.  In my view the hospital notes ought to be read with caution for that reason.[71]

   [71] Medical records - [Mental Health and Drug Service], folio 30.

3. The [Town] Hospital discharge summary of K's three day admission (18 - 20 March 2019) record that he:[72]

   [72] Hospital records, folio 31, pages 9 - 11.

   apparently presented with hallucinations (auditory and visual), agitated and physically disruptive behaviour primarily internally focused and not directed to someone else and that 'there's been visual and auditory hallucinations with persecutory ideation that devil was telling him to rip his eye out. (Emphasis added)

   I pause here to note the observation that he 'apparently' presented with hallucinations.

4. The summary gives the principal diagnosis as 'schizophrenia unspecified'.  K was commenced on olanzapine (an antipsychotic) and diazepam (a benzodiazepine which I understand is a sedative) for 'other mental disorder'.[73]

   [73] Hospital records, folio 31, pages 9 - 11.

5. The summary records, and I find, that there were 'no obvious signs of underlying organic dysfunction' and a CT of his brain indicated 'NAD' by which I understand to mean no abnormality detected.

6. The summary records that K had a background of significant polysubstance abuse and had stopped smoking cannabis a few weeks prior to his three day admission to hospital and I make that finding.  There is a query in the summary as to whether that resulted in his psychotic breakdown.[74]

   [74] Hospital records, folio 31, pages 9 - 11.

7. I pause here to acknowledge the submission made by K's legal representative, that it is possible that the 'devil speaking to him' could have been an episode of culture bound syndrome rather than an episode of psychosis.  In her submission K's legal representative references a study by Dr Tracy Westerman regarding the presence of culture bound syndromes for Aboriginal people wherein it was reported that there have been numerous examples of misdiagnoses in circumstances where Aboriginal people who had experienced a spiritual event were instead incorrectly identified as experiencing psychosis.[75]

   [75] ALSWA's submissions dated 27 November 2024 referring to Dr Tracy Westerman's paper 'Culture bound syndromes in Aboriginal Australian populations', Clinical Psychologist (15 March 2021).

8. In my view whilst it may be possible that what K was experiencing was culture bound syndrome, this is speculation.  There is no evidence before me of any investigations as to whether K was experiencing culture bound syndrome.  On the evidence before me I am unable to make a finding as to whether or not K was experiencing an episode of culture bound syndrome.  

[Town] Hospital

1. After three days in [Town] Hospital K was transferred to the [Town] Mental Health Unit at the [Town] Hospital where he remained for 17 days as an involuntary patient.

2. The [Town] Hospital Discharge Summary notes that on admission his mental state was 'difficult to ascertain given communication barrier but likely AH and/or somatic delusions' (emphasis added).  I understand AH is shorthand for auditory hallucinations.  It was noted that K did not use regular (Auslan) sign language and communicated with his family via their own version of signing and I accept that evidence.  He was prescribed paliperidone on discharge for schizophreniform disorder and was to be followed up by [Community Mental Health].[76]  I again pause to observe the reference in the notes to 'likely AH' which in my view sounds a cautionary note and casts some doubt as to whether K was experiencing auditory hallucinations.

   [76] Medical records, [Mental Health and Drug Service], folio 30, page 46.

[Town] Adult Community Mental Health Service

1. When K was reviewed in November 2019 at the [Town] Adult Community Mental Health Service, the notes record that he was on paliperidone, and there were no issues reported with his medication compliance and I accept this evidence.  I accept that he was reported to use cannabis and occasionally alcohol, but that the family reported that there had been no behaviours of concern related to THC (meaning tetrahydrocannabinol being one of the active components found in marijuana) use such as those that occurred in March 2019.  The notes record, and I accept, that his presentation was settled, and he gave the 'thumbs up indicating he is good'.  I accept that there was no evidence of perceptual disturbances, none reported, and no abnormal behaviours observed by family.  It was observed, that 'insight and judgment were difficult to assess due to communication difficulties but complies with depot medication and there have been no concerns [Mental Health and Drug Service] staff talking with family' and I make those findings.  The plan was to cease paliperidone and the depot scheduled for 12 November 2019 was not required, and I accept that evidence.[77]

   [77] Medical records, [Mental Health and Drug Service], folio 30.

2020

1. In January 2020 K was discharged from the [Town] Adult Community Mental Health Service as there had been no evidence of any psychotic phenomena reported by K or his family and I accept this evidence.  His last depot had been administered in October 2019 and his mental state had been monitored for a further two months and no issues identified and hence he was discharged from the service and I accept this evidence.[78]

   [78] Medical records, [Mental Health and Drug Service], folio 30.

2. In May 2020 K was referred to the [Town] Mental Health Triage by the [Town] Hospital after reports of him displaying aggression to his family and towards himself in the context of a bankcard being taken by a family member, all of which I accept.  I accept that he was reported to be punching walls and himself and making threatening gestures towards his mother.  The family also reported, and I accept, that he had been refusing to eat for the past week.  The notes record that attempts at communication through simple sign language were 'somewhat effective' and that '[K] pointing to his head and gesturing with index finger in circular motion seemingly agreeing that auditory hallucinations occurring'.[79]

   [79] Medical records, [Mental Health and Drug Service], folio 30, Medical records - [Health Service], folio 13.

[Town] Hospital

1. K was admitted to the [Town] Mental Health Unit at [Town] Hospital from 29 May 2020 for 15 days, following 24 hours of escalated behaviour during which he was hitting himself and his family and I so find.

2. In respect of his communication the notes state that '[K] does not utilise Auslan sign language, instead communicating w/his family via their own version of signing'.  It appears from the notes that communication was in part through pictograms (happy and sad faces, pictures of the devil) and gestures (nods).  The notes record 'often nods yes, but possibly not in response to actual question'.

3. The notes state that he was reported to have threatened to kill his mother in the context of a disagreement over his bank card.  Further that he admitted to experiencing auditory hallucinations and moderate thoughts of suicide/self-harm.  The principal diagnosis was noted to be 'schizophrenia unspecified'.  The notes in respect of his mental state on admission were that he was 'difficult to assess due to mutism and deafness' and that he 'seems to indicate some type of perceptual disturbance but the nature of this is unclear' (emphasis added).  His judgment was stated to be 'probably impaired'.  Again, I pause to note the tentative nature of these observations.[80]

   [80] The [Aboriginal Health Service] records, folio 34, Medical records, [Mental Health and Drug Service], folio 30.

4. The olanzapine and lorazepam (the latter being a benzodiazepine) were ceased.  K was commenced on risperidone and paliperidone (both of which I understand are treatments for schizophrenia).  On discharge he was recommended to have monthly paliperidone depot.  He was again noted to be a current drug user EtOH (meaning ethanol, the type of alcohol found in alcoholic drinks) and THC.  The notes state that K 'appeared to agree w/ depot injection and nodded when I indicated we would restart the medication'.  He was a voluntary patient on discharge with no community treatment order in place.[81]

   [81] The [Aboriginal Health Service] records, folio 34, Medical records, [Mental Health and Drug Service], folio 30.

5. In my view it is evident from the notes that the psychiatrist had difficulty communicating with K and that the principal diagnosis made during admission of 'schizophrenia unspecified' ought to be treated with caution for this reason.

June 2020 - April 2023

1. Between June 2020 and April 2023 K had no further admissions to hospital and I make that finding.[82]

   [82] Medical records, [Mental Health and Drug Service], folio 30.

2. I accept the evidence that K attended periodic psychiatric reviews throughout that period (including in March 2021, November 2021, April 2022, October 2022, March 2023, April 2023, June 2023) and I so find.[83]  Further I place weight on this evidence as indicative of K's willingness to engage with treatment.

   [83] Medical records, [Mental Health and Drug Service], folio 30.

3. The review in March 2021 notes that as of that date K had yet to receive services, that he was 'able to meet basic needs ADLs[84] but has nil autonomy due to disability'.  His mental state was recorded as stable, and I so find.[85]

   [84] ADL = activities of daily living.

   [85] Medical records, [Mental Health and Drug Service], folio 30.

April 2022

1. At a face-to-face review in April 2022 the diagnoses from 2017 were noted to be schizophrenia and substance misuse.  The assessment took place in circumstances where K was noted to have just woken after the previous night during which he had engaged in a heavier than usual consumption of 'alcohol? plus cannabis'.

2. The notes record that it was difficult to determine whether the ongoing effects of the previous night's substance use were impacting his level of awareness and engagement or if his presentation was the norm.  The psychiatrist notes that they were unable to fully assess or compare to previous presentations as this was the psychiatrist's first assessment of K.[86]  The psychiatrist noted that a cognitive impairment was evident and that they were unable to assess insight and judgment.

   [86] Medical records, [Mental Health and Drug Service], folio 30, page 40.

3. Given that the circumstances in which the review took place, namely after a night's heavier than usual consumption of 'alcohol?plus cannabis', I give the psychiatrist's finding that K had a cognitive impairment little weight.

October 2022

1. The psychiatric review in October 2022 reported that K's substance misuse (alcohol, cannabis) at that time was moderate (once a week) and I accept that evidence.[87]  The psychiatrist was able to ascertain from K that his mood was good (thumbs up) and his mental state also okay (thumbs up). 

   [87] Medical records, [Mental Health and Drug Service], folio 30.

2. The notes record that the 'family uses non Auslan, family evolved sign language to communicate, limits communication with non-family third persons'.  The psychiatrist requested that K's mother be brought to the next appointment as he was unable to communicate with K, who had not learned Auslan.

3. The psychiatrist noted 'cognitive impairment evident.  Unable to assess insight and judgment, but collateral from [named family member] suggests this is reasonable'.

4. Given that the psychiatrist was unable to communicate with K I place little weight on his finding that K was cognitively impaired.

2023

1. The medical records of a face-to-face review on 4 April 2023 notes the difficulty in assessing K due to his congenital deafness/mutism and I accept that evidence.  I accept the following observations in the records made on that date.  He was recorded to be using THC/ETOH.  His mother had not noticed any psychotic symptoms for the last two years and she stated that he was 'mad' two years ago but had been his usual self since.  His mood was observed to be euthymic.  His mother did not relate any issues of concern regarding self-harm or harm to others, and that his mental state was settled.  The notes state 'unable to assess cognition, insight and judgment'.  The impression of the reviewer was of a stable mental state for the last two years on monthly paliperidone.  The plan was to reduce the monthly paliperidone dose with potential to down titration pending K's mental state.[88]

   [88] Medical records, [Mental Health and Drug Service], folio 30.

2. The schizophrenia diagnosis is repeated at a scheduled review on 19 June 2023.  There is also reference in that review to K having a substance use disorder.  It had not previously been described in that way although it is noted on the records since 2019 that K had significant polysubstance misuse.  The records note that K had limited ability to communicate globally and a request was for NDIS support to explore options to develop communication.[89]  It was noted that he was 'challenging to fully assess', and that he was asymptomatic, and his weight was low and I accept that evidence.  At that time, I accept that he was on paliperidone.

   [89] Medical records [Health Service] from 1 January 2019, Medical records, [Mental Health and Drug Service], folio 30.

3. At a face-to-face assessment on 3 July 2023 the medical records note the 'diagnosis of schizophrenia over at least the past two years when he was admitted to the Acute Unit in [Town].  It may be that the outbursts at the time were over feeling powerless, unable to express himself and becoming angry, throwing things at family members.  This now is only an issue if he has alcohol, by his mother's account.  There have been issues alleged of financial exploitation.  On paliperidone depot the dosage was reduced, which is of minimal effect.  His mother [C] has observed no disturbance in his behaviour'.  The decision was made to trial K without paliperidone and to involve NDIS workers in getting him taught Auslan 'then should there be changes in his behaviour a more rounded assessment should be possible'.[90]

   [90] Medical records, [Mental Health and Drug Service], folio 30.

4. The medical notes are corroborated by K's own evidence that it makes him angry when he cannot control his money and that it makes him wild when he thinks someone has his money, and I so find.

5. I place weight on the acknowledgment in the medical records that if K were taught Auslan it would facilitate a more rounded assessment, and the acknowledgement that K's behaviour may be attributable to his communication difficulties and alcohol.

2024

1. On 9 January 2024 the [Town] Hospital notes record that when he 'points to the corner of the room and makes an open and close gesture (ie like talking) next to his left ear' this is interpreted to mean 'possibly hearing voices'. [91]

   [91] Medical records, [Mental Health and Drug Service], folio 30.

10 January 2024

1. The triage notes made on 10 January 2024[92] record that K had been brought in by police following aggressive outbursts in the community and I accept that evidence.  The triage assessment was noted to be challenging due to extremely limited communication and I accept that evidence.

   [92] Medical records, [ Mental Health and Drug Service], folio 30, pages 83 - 85.

2. The notes record that:

   [H]e indicated that he did not have his key card which often occurs and leads to [K] expressing his anger in a dramatic manner upturning furniture, hostile towards his mother, banging on walls.  [He] denied hearing voices through sign or being mentally unstable. Nil overt signs of perceptual disturbance or responding to same.  Nil signs to indicate wanting to self harm but evidence that he was angry at others as reported by police throat cutting gestures towards mother in their presence.  Nil actual assault history that we are aware of towards mother, though she does report threats.  Oriented and wanting to leave.  Strongly indicated that he didn't need medicating for his mental health.  Predominant focus related to not having his card/money.

3. The family reported that he had been angry for days and it was not obvious to them why, apart from him not having money.  They did not witness anything to make them think his mental health had deteriorated.  It is noted that his support workers advised they had nil concerns regarding K's mental health.  The notes state 'nil evidence of relapse schizophrenia.  Behavioural disturbance related to loss of autonomy related to finances'.[93]

   [93] Medical records, [Mental Health and Drug Service], folio 30.

4. K's own evidence supports the observation in the notes that his behavioural disturbance related to loss of autonomy related to finances.  K states and I find that it makes him wild if someone has his money, and angry when he cannot control his money.[94]

   [94] K's Statement dated 26 November 2024, folio 39.

5. The action plan arising from the triage on 10 January 2024 was that no further action was required from mental health services and that there was to be a discussion with a psychiatrist with a view to closing the referral. 

6. I accept this evidence and place weight on the family's observations that they did not think K's mental health had deteriorated, which is consistent with the evidence of service providers, who had no concerns about K's mental health.  On the basis of this evidence, I am not satisfied that K's behavioural outbursts were due to a deterioration in his mental health.

12 January 2024

1. On 12 January 2024 the [Town] adult triage clinic[95] had received multiple contacts that day from K's support worker to report that K had smashed the ATM at [bank], and that the police had been notified.  The support worker did not report any significant change in K's presentation and described his actions as frustration at not being able to obtain any money.

   [95] Medical records, [Mental Health and Drug Service], folio 30, page 86.

2. I accept this evidence and place weight on the fact that two days prior, the action plan was that no further action was required from Mental Health Services, and that consideration was being given to closing the referral.  This evidence inclines me to the view that K's behaviour was not due to his mental health.

19 January 2024

1. On 19 January 2024 at a face-to-face assessment undertaken by a doctor following property damage of ATM(s), it is noted, and I accept, that 'file review does not indicate patient has intellectual disability'.[96]  The notes state that at the last psychiatric review on 3 July 2023:

   [96] [Mental health and drug service] records, folio 30.

   … he has had a historical diagnosis of schizophrenia over at least the past two years when he was admitted to the acute unit in [town].  It may be that the outbursts at the time were over feeling powerless, unable to express himself and becoming angry, throwing things at family members.  This now is only an issue if he has alcohol, by his mother's account.  There have been issues alleged of financial exploitation.

2. The notes record that paliperidone was ceased from July 2023 onwards and I so find.  The notes record and I find that there were 'no screening features of psychotic like illness despite cessation of psychotropics for 6/12'.  It is recorded in the notes that 'Behavioural outbursts appear in context of unable to access funds, dynamic factors at play (damaging ATM) around others reportedly misappropriating his funds'.  Again, K's own evidence supports this explanation for his behavioural outbursts.

February 2024

1. In respect of an admission and discharge on 12 February 2024 from [Town] Hospital the records note, and I find, that the principal diagnosis was 'alcohol intoxication' and that he was currently in police custody on charges of property damage.  The medical history in the notes refers to 'schizophrenia unspecified' with the comment, which I accept, that 'challenged diagnosis as depot ceased and no evidence on this admission'.  Further, that he was a current drug user specifically EtOH and THC and I make those findings.[97]

   [97] [Aboriginal Health Service] records, folio 34.

June 2024

1. In a face-to-face review (undertaken by Nurse G) on 26 June 2024, she observed, and I accept, that K was not responding to unseen stimuli, his behaviour was settled, he did not appear distressed or agitated in any way, and that he remained underweight.  Nurse G noted, and I accept, that when she spoke with three of his relatives, they did not express any concerns about his behaviour or mental health, stating he was normal.  She noted, and I accept, that a relative stated that K was 'no good' when he has been drinking which was about once a week.  Nurse G observed, and I accept, that K's behaviour was settled and congruent to the situation.  She recorded, and I accept, that she had no concerns apart from his continued neglect and lack of access to funds.[98]

   [98] [Mental health and drug service] records, folio 30.

2. At the review undertaken on 28 June 2024 by the [Town] adult community mental health clinic in K's absence, it is recorded that he had no access to money and that his frustration is taken out on ATM machines and his mother.  The notes record, and I accept, that the family/NDIS are requesting that he be put back on depot.  The notes record, and I accept, that there were no psychiatric symptoms.[99]

   [99] [Mental health and drug service] records, folio 30.

3. In a face-to-face assessment on 9 July 2024 with Nurse G she made the following notes, the contents of which I accept.  She observed that K's weight remained very low.  K indicated that he had been wounded by a relative.  Nurse G observed that K is always hungry, wanting to locate his mother to get his bankcard so that he can make purchases from the shop.  It is recorded that his mother said K targets her with aggressive gestures and that she feels unsafe.  Nurse G noted that there was no evidence of disturbance of thought or behaviour but that this is extremely difficult to determine due to the communication barriers.  Nurse G's view is that ideally K needs to be removed from his current environment and an investigation carried out into what is happening to him.[100]

   [100] [Mental health and drug service] records, folio 30.

4. At a review on 12 July 2024 (in K's absence) by the [Town] adult community mental health clinic, following a referral due to aggressive behaviours including destroying ATM(s), it is reported that the case manager (Nurse G), who knows him well, feels his behaviour is secondary to frustration at being exploited.  He was noted to have been recently assaulted twice.[101]

   [101] [Mental health and drug service] records, folio 30.

Dr C's report

1. Dr C in her report dated 31 July 2024 says that K's diagnosis is unclear.  As I have already stated Dr C had only seen K on one occasion (on 15 July 2024) and she was unsure whether an assessment of cognitive capacity had been performed.  Her report was based on the notes held by the [Aboriginal Health Service], and K's one consultation with her.[102]

   [102] Folio 8.

2. In the [Aboriginal Health Service] records, when K was reviewed in June 2024 by [Town] Mental Health there was 'no diagnosis of mental health disorder no meds multifactorial'.[103]

   [103] [Aboriginal Health Service] records, folio 34.

Dr S's report

1. In her report[104] Dr S states that K was diagnosed with foetal alcohol spectrum disorder in 2017.  According to Dr S this diagnosis was based on the medical history taken by a nurse when K entered [regional] prison in February 2024.  Dr S says that she assumes there would have been supporting documents confirming this diagnosis in K's past medical history but that she currently could not find it (emphasis added).[105]  There is no evidence before the Tribunal of the documents upon which the nurse at [regional] prison based her reporting of this diagnosis.  Further, there is no reference to this diagnosis in any of the extensive medical records before the Tribunal.

   [104] Report dated 9 September 2024, Folio 19.

   [105] Dr S's email dated 21 November 2024, folio 35.

2. Dr S states that schizophrenia is suspected but not confirmed.  She states that K's mental disability is static. 

Other evidence of mental disability

1. Notably neither Nurse G nor Mr F state in their reports, that K has a mental disability. Nurse P, who had only known K for six weeks at the date of his report, states that K has schizophrenia, although there is no indication on the face of his report what evidence he relied on to make that diagnosis.

2. When the OPA representatives visited K it appeared to them that K gestured that people were talking in his ears, and that he may be having some delusional thoughts.  The OPA investigator expressed caution in interpreting the representatives' observations as they relate to K potentially hearing voices or being in some form of delusional state.  The OPA investigator expressed the view that there may be other explanations for the behaviours observed that do not indicate that K was experiencing a psychotic disorder including that he was in a stressful situation being in prison at the time and that there may be cultural explanations for some of the gestures he was making that could be interpreted as him hearing voices.

3. I agree that the representatives' observations, and what was conveyed to them by K must be interpreted with caution.  In the circumstances I give their observations and what was understood to be conveyed to them very little weight.

4. K's legal representative has submitted that K was struggling in prison and in the meeting with the representatives from the OPA.  Again K's legal representative has referred to Dr Westerman's research that time away from country including when incarcerated can cause distress to aboriginal people that may present as mental health issues.[106]  Whilst I acknowledge this very real possibility, on the evidence before me I am unable to make any findings regarding whether K was experiencing distress whilst he was incarcerated and away from country nor whether his presentation during the visit may be attributed to any such distress.

   [106] Legal representative's written submissions dated 27 November 2024, para 21(f).

Conclusion as to whether K has a mental disability

1. It is an incontrovertible fact that K has difficulties communicating.

2. These difficulties have been a recurring refrain throughout the evidence, which have made it difficult for the medical professionals to diagnose K, and assess his cognition and judgment, from 2019 to the present day.  These communication barriers have also made it difficult for service providers to form a view about K's cognition. 

3. I now turn to consider the recognised medical diagnoses, being the second feature of a mental disability identified in FY.

Schizophrenia/schizophreniform disorder

1. On the evidence before me I am not satisfied that K has schizophrenia/schizophreniform disorder for the following reasons.

2. Firstly, these diagnoses are now doubted by the medical professionals.

3. The most recent medical opinions about K's diagnoses are those of Dr S and Dr C, the former not having met K, and the latter only once.  Their opinions are based on a review of medical records.

4. Dr S states that schizophrenia is suspected but not confirmed, and Dr C states that K has an unclear diagnosis.  This is notwithstanding that the medical records record diagnoses including schizophrenia, schizophreniform disorder, schizophrenia unspecified, and presentations with psychosis.

5. Secondly, some of the reported psychoses may be attributed to substance related aggression.  And even when they are not, the reported psychoses are occasioned by doubt given the difficulties in communications which I have documented above.

6. For example, when the diagnosis of 'schizophrenia unspecified' was first noted in 2019, it was based on K's apparent presentation with hallucinations (emphasis added).  And the doctors were querying whether his presentation could be attributed to polysubstance abuse and K ceasing cannabis a few weeks prior to his first hospital presentation.

7. Again, the diagnosis of schizophreniform was on the basis of likely auditory hallucinations, which as I have earlier stated casts doubt on that diagnosis (emphasis added).  That diagnosis was based on 'somewhat effective' communication in simple sign language of K pointing to his head and gesturing with his index finger in a circular motion which was interpreted to be his agreement to auditory hallucinations.  A similar conclusion was made that he was possibly hearing voices when he pointed to the corner of the room and made open and close gestures (like talking) next to his ear (emphasis added).

8. A further example is the doctor's note that K seemed to indicate some type of perceptual disturbance the nature of which was unclear, in circumstances where his mental state was acknowledged to be difficult to ascertain (emphasis added).

9. Thirdly, in early 2024 K was exhibiting no screening features of psychotic like illness despite cessation of psychotropics for six months. 

10. Fourthly, in mid-2024 it is recorded that he had no psychiatric symptoms, no mental health disorder, no evidence of disturbance of thought or behaviour, was not responding to unseen stimuli, his behaviour was settled, and he was not on any medication.

11. Fifthly, the OPA investigator has verified with the [Mental Health and Drug Service] that their longitudinal assessment of K leads them to the view that there is no evidence of a significant psychiatric disorder.  Rather, they believe that K's presentation and behaviours are a culmination of the effects of his communication disability and his frustrations with his personal and financial circumstances.[107]

    [107]  OPA report dated 10 September 2024, folio 17.

Intellectual disability

1. On the evidence before me I am not satisfied that K has an intellectual disability, being the third feature of a mental disability identified in FY, for the following reason. 

2. The [Town] Adult Triage in their file review have concluded that there are no indications that K has an intellectual disability and I accept that evidence.  Their review is supported by the evidence of Ms S, who had extensive face-to-face interactions with K as a 6 year old, that he had proven himself to be a very capable and enthusiastic learner, and with interpreting support could aim to leave school with the same knowledge and skills as his hearing peers.

Foetal Alcohol Spectrum Disorder

1. On the evidence before me I am not satisfied that K has foetal alcohol spectrum disorder because there is no supporting documentation in any of K's medical records confirming this purported diagnosis in 2017, the first mention of it being in the February 2024 admission to the [regional] prison.  Further when I asked K's mother about this, she was unaware of K ever being diagnosed with foetal alcohol spectrum disorder.[108]

   [108] ts 33, 29 November 2024.

Substance use disorder

1. On the basis of the medical evidence, which is supported by the evidence of K's mother, I am satisfied, and I find that K has a background of significant polysubstance abuse (alcohol and cannabis) and there does not appear to be any dispute about this.  In the medical review on 19 June 2023 his substance misuse was described as a substance use disorder.  Whilst the doctor noted that K was challenging to fully assess on that occasion, I accept that the doctor would have assessed K's use and been satisfied that it met with the diagnostic criteria in the DSM-5.[109]

   [109] >

   The medical professionals have queried whether K's substance misuse may have been the reason for his breakdown in 2019 (in that case his cessation of cannabis a few weeks prior to his breakdown).

2. On the evidence before me I am satisfied and I find that K has a substance use disorder.

Cognitive impairment

1. I am not satisfied that K suffers from a cognitive impairment.  

2. In 2020 the observation that K's judgment was 'probably' impaired was in circumstances where his mental state was difficult to assess due to his mutism and deafness.  For this reason, I do not accept this observation that K's judgment was probably impaired.

3. In April 2022 when the finding of a cognitive impairment was made, the psychiatrist, who had only seen K once, acknowledged the difficulty in determining the ongoing effects of the previous night's substance use and the impact on K's presentation.  For this reason, I consider the psychiatrist's finding to be unreliable.

4. Again, in October 2022 the psychiatrist's conclusion that K had a cognitive impairment was tentative, and based on collateral evidence from the family, as the psychiatrist was unable to communicate with K.  For this reason, I consider the psychiatrist's finding to be unreliable.

Other mental disability

1. I now turn to consider whether K has any of the first features of a mental disability as identified in FY.  In particular, whether he may have a mental disability that is manifesting in disturbed behaviour.  Since 2019 the disturbed behaviour has included upturning furniture, banging on walls, aggression towards himself and his family and more recently the alleged destruction of ATMs.

2. I will deal firstly with the allegation that K destroyed ATMs in his Town in early 2024.  In his meeting with the OPA representatives in September 2024 K is reported to have conveyed to them that because he could not get money from the ATM, he broke it.

3. Nevertheless, I am mindful that these are allegations in respect of which findings have yet to be made in another jurisdiction.  Given that these allegations and their sequelae are one of the reasons why this application was made, I need to consider whether, if the allegations are made out, the alleged disturbed behaviour in destroying the ATMs is a manifestation of a mental disability as contemplated in FY.  

4. On the evidence before me I am not satisfied that if these allegations are found to be made out, they are a manifestation of a mental disability for the following reasons.

5. Firstly, neither K's family nor service providers had any concerns about his mental health in early 2024.

6. Secondly, in January 2024 it was considered that no further action was required by Mental Health Services, and that consideration was being given to closing the referral.

7. Thirdly, the medical records posit that K's behavioural outbursts (including damaging ATMs) are in context of his inability to access funds, and misappropriation of his funds by others, and his inability to communicate and I consider these are plausible explanations for his behavioural outbursts.

8. Nurse T's evidence supports this view.  Nurse T's view, which I accept, is that his behaviours are more about his underlying frustrations and anger at his financial circumstances compounded by his communication difficulties than supporting a view that he is mentally unwell.

9. Nurse G's evidence supports this view.  She attributes what is happening with his money as the catalyst for his behaviours and I accept this. 

10. K's evidence supports this view.  K has stated and I accept, that it makes him wild if someone has his money, and angry when he cannot control his money, and that his uncles' take his money.[110]

    [110] K's statement dated 26 November 2024, folio 39.

11. His mother's evidence supports this view.  She gave evidence, which I accept, that when K lost his keycard, he 'started to break things up'.[111]

    [111] Ms C's statement dated 26 November 2024, folio 38.

12. His aunt's evidence supports this view.  She told the OPA investigator that she does not believe that K has mental health issues and that 'it's not mental, it's all just frustration with K, and his difficulty communicating'.[112]

    [112] OPA report dated 10 September 2024.

13. Fourthly, in early January 2024 K was found to have no screening features of psychotic like illness despite cessation of psychotropics for six months.

14. Nor am I satisfied that the other instances of disturbed behaviour (from 2019) are a manifestation of a mental disability for the third reason I have outlined above and also because some of his disturbed behaviour may be explained by alcohol intoxication.  In respect of the latter reason, his mother's evidence that K's behaviour is only an issue when he has alcohol, is consistent with my conclusion.

15. And lastly, I turn to consider the sixth feature of a mental disability identified in FY.

16. In FY the Tribunal found that FY had an identifiable mental disability, namely impaired mental functioning as described by the clinical neuropsychologist, which did not fall within a recognised medical condition or diagnosis but fell within the sixth feature of a mental disability.[113]

    [113] FY [47].

17. The impaired mental functioning described by the clinical neuropsychologist included global cognitive functioning that was estimated to be below the low average range, quite slow information processing, short attention span, easily overloaded with information, unreliable ability to follow three stage command, extremely low reasoning and problem- solving abilities on non-verbal tasks, poor attention to detail, an impulsive approach to planning without forethought, and limited ability to solve novel problems.[114]  The Tribunal observed that a cognitive assessment was also undertaken in the course of FY's assessment by occupational therapists, and the findings were consistent with the findings of the clinical neuropsychologist.[115]

    [114] FY [36].

    [115] FY [37].

18. Unlike in the case of FY, and notwithstanding the diagnosis of a cognitive impairment to which I have already referred, there is no evidence of any cognitive assessments of K.  Neither Dr C nor Dr S were sure whether any cognitive assessments had been performed.  The only historical indicator of K's cognition was by his visiting teacher when K was 6, when she expressed the view that he was a very capable, and enthusiastic learner, held back only by his linguistic needs.  However, there is no evidence before me of any cognitive assessments since that time, which is particularly important in K's case, given that he has a substance abuse disorder, such disorders having the potential to cause an acquired brain injury. 

19. Unlike in the case of FY, I have a paucity of evidence from health professionals in respect of K's cognitive functioning.

20. On the evidence before me I am unable to be satisfied that K has a mental disability the underlying cause of which is not entirely clear, or susceptible to a particular medical diagnosis, but which is beyond doubt.  I pause here to observe that the language of FY requires me to consider whether the existence of a mental disability is beyond doubt, not whether on the balance of probabilities a mental disability exists.  This is a high bar.

21. I will now consider whether K's inability to manage his own financial affairs and make reasonable judgments in respect of his estate may, of itself, be indicative of the existence of a mental disability, such that the existence of a mental disability is beyond doubt. 

22. I am not satisfied that the inference I have made that K was unable to open a new bank account on his own puts it beyond doubt that he has a mental disability because his inability to do so may be due to the fact that he is illiterate and unable to communicate.  It is also possible that he is unable to do so because he has an emerging mental disability (possibly an acquired brain injury due to his substance use disorder) which has not so far been able to be identified because of the communication difficulties encountered by the medical professionals.

23. I am not satisfied that K's inability to problem solve and find a solution to always being without money, whether it be due to him losing his card or because of financial exploitation or because he could not get money from the ATM, is of itself sufficient evidence to enable me to make a finding beyond doubt, that he has a mental disability.  Although his inability to problem solve, may be an indicator of an emerging mental disability, but that is not beyond doubt.

24. Further I am not satisfied that K's difficulties in managing his simple estate since at least 2020 are, of themselves sufficient evidence to enable me to make a finding beyond doubt, that he has a mental disability.  Again, it is possible that his difficulties may be an indicator that he has an emerging mental disability, but that is not beyond doubt. 

25. In conclusion I am not satisfied that K's inability to manage his own financial affairs and make reasonable judgements in respect of his estate put the existence of a mental disability beyond doubt. 

Nexus - Is K's inability to make reasonable judgments in respect of matters relating to all or any part of his estate by reason of a mental disability?

1. Section 64(1)(a) makes clear that an inability to make reasonable judgments in relation to one's estate does not, of itself, constitute a sufficient basis for the making of an administration order.[116]

   [116] FY [73].

2. It is only if the Tribunal is satisfied, on the evidence before it, that a person has a mental disability, and that it is 'by reason of' that mental disability that they are unable to make reasonable judgments in respect of their estate, so that the presumption in s 4(3)(d) of the GA Act is displaced, that the criterion in s 64(1)(a) will be satisfied.[117]

   [117] FY [74].

3. The use of the phrase 'by reason of' in the context in which it appears in s 64 implies a relationship of cause and effect between a mental disability and a person's inability to make reasonable judgments in respect of matters relating to all or any part of their estate. The context suggests that the meaning of the phrase 'by reason of' equates to 'because of' and 'due to'. The practical application of ordinary causation principles is required.[118]

   [118] FY [75].

4. On the evidence before me I am not satisfied that K's difficulties in managing his simple estate are because of his substance abuse disorder, which is the only mental disability I have found K to have.

5. In particular, I am not satisfied that K's inability to open a new bank account on his own was due to his substance abuse disorder.  Nor am I satisfied that K's inability to find a solution to his always being without funds (whether it be due to losing his bankcard or others taking his money/bankcard/closure of his bank account) is because of his substance abuse disorder.

Conclusion

1. On the evidence before me I am not satisfied that K 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. I am not satisfied that the criterion in s 64(1)(a) is met.

2. K is therefore not a person for whom administration orders may be made.

3. Given my conclusion, issues 3 and 4 fall away.

Postscript

1. By way of a postscript, the OPA investigator has opined that K needs an administrator and the kind of help that an administrator can provide albeit that he acknowledges that there may not be a basis upon which orders can be made.  He opined that without some form of intervention K will remain financially vulnerable, and I agree.[119]

   [119] OPA report dated 10 September 2024; ts 43, 29 November 2024.

2. There is no doubt that K is a vulnerable young man, and in my view, it is in his best interests that administration orders be made.  However, on the basis of the current medical and other evidence I am unable to be satisfied that K has a mental disability that is the cause of his inability to make reasonable judgements in relation to his estate. 

Issue 5 : Is K incapable of looking after his own health and safety, or unable to make reasonable judgments in respect of matters relating to his person, or in need of oversight, care or control in the interests of his own health and safety or for the protection of others? 

1. Before appointing a guardian, I must be satisfied that K has attained the age of 18 years[120] and is:[121]

   [120] GA Act, s 43(1)(a).

   [121] GA Act, s 43(1)(b).

   (a)incapable of looking after his own health and safety; or

   (b)unable to make reasonable judgments in respect of matters relating to his person; or

   (c)in need of oversight, care or control in the interests of his own health and safety or for the protection of others.

2. I am satisfied and I find that K is 34 years of age.

3. For the reasons I have already given at [92] - [114] above I am satisfied, and I find that K is incapable of looking after his own health and safety and unable to make reasonable judgments in respect of matters relating to his person (pursuant to s 43(1)(b)(i) and (ii)).

4. It only remains for me to consider whether K is in need of oversight care and control in the interest of his own health and safety or for the protection of others (pursuant to s 43(1)(b)(iii)).

Ability to understand and follow the advice of medical professionals

1. In my view K's difficulties in communicating pose a risk to his health and safety. 

2. This is illustrated by the fact that notwithstanding his extensive interactions with mental health and drug services since 2019, the medical professionals remain uncertain about whether he has a mental disability.  I acknowledge that whilst K has had involuntary admissions, he has in the main, been willing to engage in treatment, including attending periodic psychiatric reviews and complying with medication, and I so find.

3. The service providers have expressed differing views in respect of K's ability to understand and follow the advice of medical professionals.  In Mr F's view due to the communication barriers K would require support to understand and follow the advice of treating medical practitioners, and I accept that evidence.  When Nurse P was asked whether K is able to understand and follow the advice of treating medical professionals Nurse P responds 'no - very hard to communicate and make him understand'.  His views align with Mr F's in attributing difficulties in understanding to communication barriers.  In Nurse G's view K has limited understanding (of the advice of treating medical professionals), although she noted that he co-operates with the [Mental Health and Drug Service], and that is evident from the numerous interactions I have already referred to.  In so far as Nurse G expresses the view that K has limited understanding of the advice of treating medical professionals, I consider that this may be attributed to the difficulties in communication, but there may also be other explanations, for example an emerging mental disability.  Without doubt the communication barriers make it difficult to assess K's level of understanding of such advice.

4. In my view K would benefit from a thorough assessment and investigation into his cognition to resolve the uncertainties the doctors have about his diagnosis, which is largely due, in my view, to the communication difficulties. To that extent I agree with Nurse G's view (at [174] above).

5. In my view the difficulties in communicating pose a risk to K's health and safety and for this reason I consider he is in need of oversight care and control in the interest of his own health and safety.  The communication difficulties pose a risk to the resolution of the uncertainties about his mental health, and also any investigations into the cause of his low weight.  

6. For this reason, I am satisfied and I find that K is in need for oversight care and control in the interests of his own health and safety in respect of decisions about his health. 

Increasing aggression/behavioural issues

1. As discussed above (at [105] - [107]) K's aggression towards others including his family and in particular his mother, poses a risk to the health and safety of others and for this reason I consider that K is in need of oversight care and control for the protection of others.

Accommodation

1. K currently lives with his family either in town or out of town.  I accept that K has both positive and volatile relationships with his family and he is open to exploring other independent living options.  His mother is supportive of the idea of NDIS accommodation for K.[122]  Ms D is of the view that K would not be eligible for NDIS funding for supported independent living.[123]  However, if in the future K is eligible for NDIS accommodation potentially a decision would need to be made about this.

   [122] Mrs C's statement dated 26 November 2024; K's statement dated 26 November 2024.

   [123] Submissions dated 27 November 2024 by the ALSWA, para 38.

2. I consider that K is in need of oversight in relation to any decision about future housing options, given his communication difficulties and the high level of support he may need to secure alternative accommodation.

Legal

1. K is legally represented in the criminal proceedings by the ALSWA.  His legal representative in the criminal proceedings has informed the investigator that their service is unable to adequately take instructions from K due to the communication difficulties, and that part of the rationale for him being remanded in custody was that the magistrate wanted K to have the opportunity to learn some Auslan. 

2. I do not consider that K is in need of oversight in relation to the current or any future criminal proceedings for several reasons.

3. Firstly, he is well known to the ALSWA service.

4. Secondly, notwithstanding the communication difficulties it appears the ALSWA legal representative was able to take K's instructions in relation to the recent bail application, which resulted in his release.[124]

   [124] OPA report dated 10 September 2024, folio 17.

5. Thirdly, a guardian cannot plead or instruct lawyers in relation to criminal proceedings.[125]

   [125] OPA report dated 10 September 2024, folio 17.

6. Fourthly, in respect of any future criminal proceedings he has a service co-ordinator whose task it is to connect him to legal services. 

Conclusion:  whether K is in need of oversight care and control in the interest of his own health and safety or for the protection of others

1. For the reasons I have outlined I am satisfied that K is in need of oversight, care or control in the interests of his own health and safety and for the protection of others.

Issue 6: Does K need a guardian or is there a less restrictive alternative to the appointment of a guardian? 

Health

1. In respect of the concerns about K's low weight, it does not appear on the evidence before me that informal advocacy by K's family, who are aware of his eating habits, has resulted in any investigations into his low weight, nor resolved this concern.

2. For this reason, I consider that there is a need for the appointment of a guardian with responsibility for making treatment decisions, as the informal oversight of his family is not a less restrictive alternative.

Services

1. K's mother is willing to be K's NDIS contact person.[126]  This is K's wish.  It is also supported by Ms D.

   [126] Mrs C's statement dated 26 November 2024, folio 38.

2. I have concerns about K's mother being his NDIS nominee for the following reasons.

3. Firstly, K is now 34 and his inability to communicate has been an issue for him all his life.  In the 2016 Disability Services Commission (2016 DSC) plan made for K when he was in prison and signed off by his mother, one of the goals was to increase his knowledge of Auslan.  He was then 25.  He had no involvement in the plan due to communication difficulties.  Notwithstanding this goal, his family, and in particular his mother, has failed to assist him informally to obtain services that would facilitate his ability to communicate.

4. Nurse G reported that it is only recently that there have been efforts to promote K's communication skills and I accept that evidence, which is consistent with the evidence of Ms D, his specialist support coordinator.

5. Trialling and monitoring of communication devices is critical for K, particularly given that in the past he had been provided with hearing aids but threw them away because they were too loud.[127]  This indicates to me that persistence is required and that the informal oversight by family, in particular his mother, of endeavours to assist with communication for K has not been effective in the past.

   [127] ts 25 and 26, 29 November 2024.

6. Secondly, and on a more general note, K's access to NDIS services has been relatively recent, in circumstances where I infer he has needed services for much of his life.  It was noted in the 2016 DSC plan that K exited from DSC services in 2014, because services were being declined, and the plan was only recommenced as a result of K's interface with justice in 2016. 

7. For this reason, I do not consider that his mother is suitable to be his advocate for services, her advocacy for him having been insufficient to achieve appropriate support over many years.  I do not consider that it is K's best interest to have his mother as his NDIS nominee. 

8. For this reason, I consider that there is a need for the appointment of a guardian with this function as his mother becoming his NDIS nominee is not a less restrictive alternative.

Restrictive practices/Restraint

1. In respect of K's behaviours of concern, namely his aggression towards himself, others including his mother, and property, any medication to modify this behaviour would, in the absence of a mental disability, be a restrictive practice or form of restraint.

2. Nurse T's evidence is that a person without a psychiatric illness being administered a depot may experience effects that are perceived to be positive to third parties, as they may be more subdued and placid.[128]  I infer that this may be why K's family and NDIS providers are wanting K to go back on depot.[129]

   [128] Report of OPA dated 10 September 2024, folio 17.

   [129] See paragraph [173] above.

3. Further I accept the evidence that during K's recent incarceration he was recommenced on olanzapine, and I so find.[130] 

   [130] Report of OPA dated 10 September 2024, folio 17.

4. Such restrictive practices/restraint may be embedded in a behaviour support plan drawn up by a NDIS services provider, or in a medical plan.

5. The need for a decision-maker in respect of restrictive practices/restraint requires the appointment of a guardian, as consent to the adoption of such practices cannot be given by a less restrictive means.

6. NDIS service providers are required to obtain consent for restrictive practices.  If the NDIS recipient does not have the capacity to consent to the use of restrictive practices, then a guardian will need to give that consent.[131]

   [131] See MS [2020] WASAT 146 [134] - [136].

Accommodation

1. In my view the services and accommodation functions are entwined, and these decisions ought to be made by the same decision­maker.  Given my view that having his mother as his NDIS nominee is not in K's best interest, there is a need for a guardian with the accommodation function as there is no less restrictive alternative.

Conclusion

1. In summary, there is a need for a guardian with the functions of treatment, services, restrictive practices/restraint, and accommodation.

Issue 7:  If K needs a guardian who should be appointed?

1. In my view it is in K's best interest that OPA be appointed as his guardian with responsibility for making decisions in respect of these functions.

2. In respect of treatment decisions, given that the informal support of his family has not resulted in any progress in respect of addressing the longstanding issues regarding K's low weight, hunger and poor dietary intake, I consider that an independent guardian is in K's best interests.

3. In respect of services decisions, given that the informal support of his family has not been effective in the past in providing K with access to much needed services, I consider that an independent guardian is in K's best interests.

4. In respect of restrictive practices/restraint decisions, given that the family are the target of K's aggressive behaviour, they have a potential conflict of interest in making these decisions, and so I consider that the appointment of an independent guardian is in K's best interests.

5. In respect of accommodation decisions, given that this function is entwined with the services function, I consider that an independent guardian is in K's best interests.

Issue 8:  If guardianship and administration orders are made, how long should the orders run before they are reviewed by the Tribunal?

1. I must specify a review-by date. The maximum period allowed by the GA Act is five years.

2. In my view a short order of two years is appropriate, in the hope that during that time K will develop his communication skills sufficiently to allow him to participate more fully in his personal welfare matters. 

Orders

The Tribunal makes the following orders:

1.The Tribunal declares the represented person, [K] is:

(a)unable to make reasonable judgments in respect of matters relating to his person;

(b)incapable of looking after her own health and safety;

(c)in need of oversight, care or control in the interests of his own health and safety or for the protection of others; and

(d)in need of a guardian.

Administration

2.The administration order dated 19 September 2024 pursuant to s 65 of the Guardianship and Administration Act 1990 (WA) is revoked.

3.The administration application is dismissed.

Guardianship

4.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 make treatment decisions for the represented person subject to Division 3 of Part 5 of the Guardianship and Administration Act 1990 (WA);

(d)to determine the services to which the represented person should have access;

(e)to decide whether to give or withhold consent to the use of any restrictive practices proposed in any behaviour support plan developed from time to time for the represented person in compliance with the requirements of the National Disability Insurance Scheme (Restrictive Practices and Behaviour Support) Rules 2018;

(f)to decide whether to give or withhold consent to the use of restraint to give effect to a decision of the guardian made pursuant to these orders and in the interest of the represented person's health and safety, on the following basis:

(i)where restraint is proposed, a medical plan must be developed setting out the purpose and circumstances under which restraint is to be used.  The plan must be approved by a medical practitioner and, if it remains in place, be regularly reviewed; and

(ii)a decision to use restraints should be made only after all reasonably available less restrictive alternatives have been considered and found not to be successful.

5.The Tribunal approves delegation by the Public Advocate of her functions as guardian of the represented person to an officer or employee employed in the Office of the Public Advocate.

6.The guardianship order is to be reviewed by 18 February 2027.

ANNEXURE

Dear [Redacted]

From

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.

MS V Haigh, MEMBER

18 FEBRUARY 2025