K - [2018] WASAT 27 | CaseChat AU

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION:   K [2018] WASAT 27
CORAM:   MS F CHILD (MEMBER)
HEARD:   28 MARCH 2018
DELIVERED          :   28 MARCH 2018
PUBLISHED           :   18 APRIL 2018
FILE NO/S:   GAA 3009 of 2017
BETWEEN:   K
Represented Person

Catchwords:

Guardianship and Administration - Applications for the appointment of guardian and administrator - Young woman with a number of mental health diagnoses - Vulnerability to impulsivity, manipulation and exploitation - Appointment of Public Trustee as limited administrator to manage funds paid in compensation for criminal injuries sustained as a child - Need for oversight care or control in the interests of health and safety or for the protection of others - Appointment of the Public Advocate as limited guardian

Legislation:

Guardianship and Administration Act 1990 (WA), s 43, s 64, s 65, s 112(4)
State Administrative Tribunal Act 2004 (WA), s 83

Result:

Public Advocate appointed limited guardian
Public Trustee appointed limited guardian

Summary of Tribunal's decision:

The Tribunal appointed the Public Trustee as limited administrator to manage trust funds held by him paid to a young woman in compensation for criminal injuries she had sustained as a child. The medical evidence before the Tribunal was that the young woman had been diagnosed with a number of psychiatric conditions including ADHD, PTSD, anxiety and depression. The Tribunal found that the medical evidence was insufficient, on its own, to rebut the presumption of capacity but was satisfied on the other evidence before the Tribunal that the young woman was a person for whom orders could be made.
The Tribunal was told that the young woman's mental health condition had deteriorated over the course of the proceeding before the Tribunal. The young woman did not attend the hearings before the Tribunal and the Tribunal had received one medical report that her attendance at the hearing would adversely impact on her mental health and a later report that she was unfit to attend the hearing. The Tribunal was told by the young woman's mother, who had made the application, and her grandmother, who had contact with the young woman, that the young woman could not budget and made impulsive or compulsive decisions about expenditure. The Public Advocate's investigator had interviewed the young woman and reported that she supported the appointment of the Public Trustee to manage the compensation funds as she was afraid she would spend them.
In respect of the application for the appointment of a guardian the Tribunal found that the medical evidence did not support a finding that the young woman was incapable of making decisions about medical treatment. The mother reported that the young woman was to have complex dental and facial surgery and that an assessment of her capacity to consent to the surgery was required by the hospital planning the procedure. At the time of the hearing of the application before the Tribunal this capacity assessment had not occurred.
The Tribunal was told that the young woman had assaulted both her mother and her grandmother and was facing criminal charges. An assessment of her capacity to plead to the charges was reportedly ordered by the Court. The grandmother of the young woman had obtained a violence restraining order (VRO) against the young woman and it was reported that the young woman had been in contact with the grandmother in potential breach of the order.
The Tribunal was satisfied that the young woman was overwhelmed by the circumstances in which she found herself and unable to deal with the process to obtain the capacity assessments, the processes before the Tribunal or the Court. The Tribunal found the evidence of the mother and grandmother supported the finding that the young woman was incapable of looking after her own health and safety and in need of oversight , care or control in the interest of her own health and safety or for the protection of others. The Tribunal found that the longstanding conflict between the mother and the grandmother of the young woman had had an adverse impact on her and her access to services including mental health and legal services had been compromised. The Tribunal found that the young woman was suggestible to an extreme extent with the result that she frequently changed her mind depending on which member of her family she was in contact. This had led to her expressing frequent changes of view reported to the Tribunal even in the course of the proceeding. The Tribunal found there was a need for a guardian to act on behalf of the young woman in a range of matters as informal arrangements had not and could not meet her needs. There was a need to progress the assessment of her capacity to consent to the planned surgery. There was a need for a guardian to have proper authority to determine the services to which the young woman should have access to provide a proper basis for payment of those services by the Public Trustee. There was also a need for a guardian to have standing in court proceedings in relation to the VRO and to advocate for her in relation to the criminal charges and court proceedings she faced.
The Tribunal appointed the Public Advocate as guardian as there was no one else suitable or willing to be appointed as guardian.
The Tribunal refused access to the transcript of the proceeding to the grandmother as it found that the risk that she would use it for another purpose other than the proceeding before the Tribunal was too great.

Representation:

Counsel:

Represented Person

N/A

Solicitors:

Represented Person

N/A

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

[Supressed] [2008] FCWA 145
Public Advocate and CEF [2010] WASAT 54

REASONS FOR THE DECISION OF THE TRIBUNAL:

The following are the reasons of the Tribunal in GAA 3009 of 2017 delivered orally on 28 March 2018 edited only for clarity and to remove identifying information consistent with the provisions of the Guardianship and Administration Act 1990 (WA) (GA Act).
These are the reasons for decisions made on the application by S (for the purposes of these reasons, the mother of the represented person) seeking the appointment of the Public Trustee as administrator and the Public Advocate as guardian for her daughter, K, (for the purposes of these reasons, the represented person) filed on 9 October 2017.
Notice of the application was served on the represented person on 24 October 2017. Orders were made of the possible appointment of the Public Advocate as guardian and other preliminary orders were made, including an order pursuant to s 65 of the GA Act authorising the Public Trustee to act with the powers of a plenary administrator in respect of funds held by him, being funds paid in compensation for criminal injuries sustained by K as a child.
Because of the type of material that was being filed with the Tribunal and applications that have been made for access to documents being filed with the Tribunal, the application was listed for directions on 3 December 2017. This was held to clarify the matters to which the Tribunal needed to turn its attention and which it needed to determine.
Following that directions hearing, parties were ordered to file documents that they wanted to be considered by the Tribunal within 10 days prior to the final hearing. (That was not complied with by any of the parties). There was also a formal referral to the Public Advocate for investigation of the matter.
Prior to the hearing, because of the nature of the allegations made and the material filed with the Tribunal, the Tribunal made attempts to have the represented party separately represented in this proceeding. However, those attempts were not successful. I am going to outline the background to this, because I think it does illustrate the difficulty in arranging appropriate services for the represented person. Initially, a referral was made to Legal Aid WA who declined to act, as there was a conflict. An offer of a pro bono solicitor through the Tribunal's pro bono scheme was arranged but was refused, as T, (for the purposes of these reasons the grandmother) advised that the represented person was represented by solicitors.
When contacted by the Tribunal staff to obtain a notice of representation, the solicitors advised that they were not in fact, acting for the represented person.
The Health Consumers' Council was then given leave to represent the represented person and to access documents to go through these with the represented person. A representative of that organisation attended the directions hearing in December 2017 on behalf of the represented person who did not attend. The Health Consumers' Council then withdrew in January 2018, citing a conflict of interest.
People With Disabilities were then given leave to represent the represented person and granted access to inspect documents on the usual undertakings.
However, the representative of that organisation did not attend the final hearing as was expected.
At the hearing on 27 March 2017, K's grandmother handed up a letter from a barrister on a letterhead noting his address in New South Wales supporting an adjournment request made by the grandmother on her own behalf and on behalf of the represented person. The grandmother said that the represented person had met the barrister who she described as aged 77 and retired at her home when he rented a room from her.
The grandmother reports that he is a lecturer at Murdoch University but does not know in what subject. The grandmother says that she understands that the barrister is acting for the represented person on a pro bono basis according to a letter written by him addressed to the Attorney General, of which she has a copy. The grandmother says that she gave the barrister the files she has retained of dealings in relation to the represented person, which she describes as judicial abuse of the represented person, and that the barrister became interested in assisting the represented person in relation to these matters.
The grandmother says that the barrister is admitted to practice in Western Australia. Although said to be representing the represented person, the barrister has not filed a notice of representation with the Tribunal as is required.
For the reasons given in the hearing on 27 March 2017, the applications made for an adjournment of the proceeding by the represented person and by the grandmother were refused. In brief, those reasons were that the represented person had had personal service of the notice in October 2017. The Tribunal had a report in December 2017 that the represented person would be adversely impacted in respect of her mental health by attendance at the Tribunal.
The letter from the general practitioner dated 22 March 2017 saying that the represented person was unfit to attend the hearing appeared to confirm that earlier opinion given in December. Although the Tribunal takes seriously the obligation to hear from the represented person to afford the represented person procedural fairness in the proceeding before it, and to ascertain her wishes, the primary obligation set out in the GA Act is to act in her best interests. A represented person cannot be compelled to attend a hearing of the Tribunal.
In respect of the adjournment applications made, the Public Advocate and the mother did not support the adjournment and the Tribunal accepts that it was in the best interests of the represented person, who is reported by the grandmother to have deteriorated in her mental health, to bring the proceeding to a conclusion.

Background of the proceeding

The represented person turned 18 years on 18 November 2017. She has a number of diagnosed mental health conditions, to which I will refer later.
K's mother states that K was taken from her care and not returned to her until proceedings were initiated in the Family Court of Western Australia by K's grandmother, the mother of S, in or around 2006. The parties have referred to the decision of the Family Court on a number of occasions in written submissions and in the hearing and although occurring over 10 years ago, the Tribunal accepts that it forms a significant part of the background to this proceeding.
The decision of the Family Court on 12 December 2008 and the orders followed proceedings in the Family Court initiated by K's grandmother in which K's mother is the respondent. The citation is [Supressed] [2008] FCWA 145. The judgment of the Court indicates that the independent lawyer recommended that the represented person live with her mother, as did the child expert. Parenting orders were made that the represented person live with her mother and that her grandmother be restrained by injunction from attending the school attended by the represented person.
The judgment of the Court records that in 2007, orders were made that provided for fully supervised contact only with K's grandmother. In the Tribunal hearing, K's grandmother agreed that these orders were made and that the Family Court had all the allegations which had been made in respect of the parties before it. But she takes issue with the process before the Family Court and states that there was 'corruption' and 'collusion' between the child representative and the expert and the Department for Child Protection.
K's grandmother alleges judicial abuse and 'corruption in the Family Court trial' which had the result of the judge making 'shocking findings' against her. Despite confirming the inability of the Tribunal to go behind these matters determined by the court many years ago, there were continual references to these issues. K's grandmother says that the matters she has raised have been the subject of numerous inquiries, including ministerial inquiries and a Corruption and Crime Commission inquiry.
It seems also more lately that a letter from the barrister to the Attorney General has raised these concerns. K's grandmother says that in the past, these inquiries have been terminated because of what she says was an attempt by the Tribunal in 2014 to attempt to pervert the course of justice. K's grandmother says that these historical allegations about abuse of the represented person by the judicial system need to be resolved because the represented person has been brainwashed and that she knows all about corruption in the process, and that is why she does not trust the legal process, the Tribunal and is afraid to live in Australia.
It seemed common ground that the represented person did not have contact again with her grandmother after those orders for the next 12 years, reportedly making contact again with her grandmother in 2016.
There is a reference in the transcript provided by K's grandmother to proceedings in the Magistrates Court in February 2018 which refers to a violence restraining order (VRO) obtained by K's grandmother against the represented person in January 2018, which the magistrate confirms was granted for a period of two years. K's grandmother says that she was contacted by the police following these orders because the represented person was homeless and it was then that she sought variation of the order. However, that application was dismissed.
In the final hearing, K's grandmother said that the VRO had been revoked and she would provide evidence of this following the hearing, but she has not done so. In the hearing of the application before the magistrate, S, the mother stated that she is the legal guardian of the represented person. This was not accurate at the time because the represented person had turned 18 years.
Prior to the first listed hearing of this application, K's grandmother sought access to a transcript of the hearing of her application in 2013 for the appointment of a guardian and administrator for S, the mother of K who is the applicant in this current proceeding. That application was dismissed. The application for access to the transcript of the hearing was refused as the proceedings were concluded and the reason given for seeking access was not related to that initial proceeding.
In addition, as K's mother had not proposed herself for appointment as guardian or administrator in the current proceeding, the questions of the alleged conduct of K's mother were not considered relevant to this present proceeding. This position was reiterated in the directions hearing in December 2017, when the Tribunal set out the legislative framework and the matters with which it needs to be concerned and to decide. K's grandmother was legally represented at that time and counsel for K's grandmother readily agreed that it was unnecessary and not relevant for issues to be decided in the present application that allegations about S's conduct be put before the Tribunal.
Notwithstanding this, K's grandmother has repeatedly made unsupported allegations about S, including that S has drug induced psychosis; S has committed crimes against the represented person; S has had a long involvement with corrupt police and organised crime figures; S has sold drugs to school children; and that S has severely abused the represented person, including allegations that S has hit the represented person on the head causing a brain injury. No documentary evidence of any kind has been submitted to the Tribunal to support these allegations.
S says that the approach of K's grandmother in this proceeding has been a pattern of behaviour initiated by K's grandmother to damage her relationship with the represented person. This allegation is supported by the findings of the Family Court in the judgment referred to above. S says that following efforts by K's grandmother to have S 'illegally' admitted involuntarily to a mental health unit in 2013, S sought further orders to restrain K's grandmother from contacting services regarding S or the represented person. Those orders are also not before the Tribunal.
In addition to the material referred to above, a number of professional reports were sought from various practitioners identified in the papers. I will refer to that material later. In addition, both S and K's grandmother filed numerous submissions and other material with the Tribunal, including material written or purportedly written by the represented person making allegations about both S and her grandmother, including allegations that K's grandmother had accessed K's trust funds inappropriately and requests to Centrelink that K's grandmother not be included in information.
The most recent of the material filed on behalf of the represented person is a typed, unsigned submission said to be from the represented person submitted on her behalf by K's grandmother the day before the hearing in which the represented person adopts many of the allegations made by K's grandmother about S, including some of the language used by K's grandmother.
The Public Advocate provided a report which includes a report of an interview with the represented person and a summary of a later telephone call made to the Office of the Public Advocate by the represented person which indicates a change in K's views from that reported to the investigator when K was interviewed at her home.
In the course of that phone call to the Public Advocate's office, the represented person takes issue with the investigator allocated to undertake the investigation by the Public Advocate, mirroring comments made by K's grandmother about a potential conflict of interest by that representative of the Public Advocate. Just as an aside, it is a matter for the Public Advocate to determine how she allocates the work in her office. It is not a matter for the Tribunal to raise any issues around that. The material put by the Public Advocate as a statutory officer with the authority and the reference by the Tribunal to investigate matters is one part of the evidence before the Tribunal.

In the evidence provided in the hearing by the parties and in written submissions, there are continuing references to the represented person having been sexually assaulted in the past and being at continual risk of sexual abuse and exploitation, and of alcohol abuse. Most recently, the medical evidence states that the represented person was unfit to attend the hearing. The general practitioner (GP) referred to K's complex medical condition.
S and K's grandmother confirmed that the represented person had seen the GP and the GP was reported to have indicated to S that the represented person had injuries to her vagina and anus associated with sexual intercourse. It is not clear whether that was consensual.
K's grandmother's evidence seems to indicate that it was. S's view was that it was not. There has been no reference or referral to the Sexual Assault Referral Centre stated in the material before the Tribunal.
As noted in the previous directions hearing and in the hearing, the Tribunal can make orders to the appointment of a guardian and administrator, only if satisfied that a person meets the criteria for the making of those orders. To appoint a guardian, the Tribunal must find that a person is incapable of looking after their own health and safety, unable to make reasonable judgments about their person, or is in need of oversight and care in the interests of her own health and safety or for the protection of others. To appoint an administrator, the Tribunal must find that the represented person is unable by reason of a mental disability to make reasonable judgments about any or all of her estate.
These provisions are subject to principles which state that there is a presumption that a person is capable of making their own decisions in relation to their person and their estate unless the evidence sets aside that presumption. The principles also say that orders should not be made unless they're needed; that orders should be made in the least restrictive terms possible; and the wishes of the person concerned should be ascertained. The primary obligation of the Tribunal is to make decisions in the best interests of the represented person or for whom an application is made.
Turning first to the fundamental requirement that the Tribunal must be satisfied of, and that is whether the represented person fulfils the criteria in s 64 and s 43 of the GA Act for the making of guardianship and administration orders.
The medical evidence before the Tribunal supports a finding of a mental disability being a psychiatric condition of attention deficit hyperactivity disorder, post traumatic stress disorder, anxiety disorder and depression or major depression.

The medical reports

1.Dr J, the treating psychiatrist of the represented person up until last year has had the longest contact with the represented person and in his opinion, he is unsure of the represented person's capacity. He goes onto say that he's not the treating psychiatrist any longer, as the represented person attended with a support person and the support person indicated that the represented person wanted to see a new psychiatrist.
2.Dr L, another psychiatrist, gives the opinion that the represented person is capable but qualifies this as he says he has only assessed the represented person once or has only seen her once. He is unsure of K's capacity to make complex financial decisions but says he has concerns about this.
3.Dr A, another psychiatrist, confirms a diagnosis and treatment or continuing treatment for ADHD. His opinion is that he is unsure of the represented person's capacity for financial decisionmaking, but considers K is capable of medical decisions.
4.Dr N, who also had seen the represented person once, indicated that K was capable of medical treatment but asked a question of how this could be assessed.
5.Dr L, a therapist from [a Medical] Centre where the represented person had a number of appointments but only attended a few of them, considered that the represented person was capable in general discussion but noted that there had been no assessment.

The professional reports indicate that there have been no formal assessments of the represented person's capacity to conduct decisionmaking in relation to personal matters or financial matters. The medical opinion varies from 'unsure' to 'capable'. When considering the professional evidence, greater weight is given to Dr J because of the length of his involvement.
Less weight is placed on the doctors who have seen the represented person only once or say they have not assessed or ask how an assessment can be made. Both K's grandmother and the PublicAdvocate indicate that it is appropriate that further assessment be conducted. The Public Advocate raises the concern that psychometric assessment reportedly ordered by the Court may not be appropriate, but that a more thorough neuropsychological assessment focusing on decisionmaking spheres would be of more assistance.
The Tribunal accepts the submission of the Public Advocate that the professional evidence on its own would not rebut the presumption that the represented person is capable of making financial and personal decisions. However, the Tribunal must make the ultimate determination regarding the capacity of the represented person having regard to all of the evidence. As there has been no assessment of financial management capacity of the represented person, the evidence of K's grandmother and S about the represented person's actual financial decisionmaking and functioning of the represented person in relation to her finances must be given greater weight.
Both K's grandmother and S report impulsive and 'compulsive' behaviour regarding the expenditure of K's Youth Allowance.
Both indicate the represented person makes financial decisions without considering the consequences and is unable to budget. An example given by K's grandmother is that as soon as the youth payment comes in, the represented person 'wipes herself out with alcohol' as a way of managing her depressive illness. K's grandmother also reports that K purchases non-essential items such as jewellery and clothing rather than paying food or rent. S seems to support this view that the represented person's self-esteem is so low that she makes spending decisions just to make herself feel good, rather than considering the consequences of those decisions.
Both S and K's grandmother and the Public Advocate, in discussion with the represented person, report that K did not consider she should pay for her accommodation. K gave varying reasons for that, including that S had not provided a good childhood for her and as a result, K should not pay for the accommodation or contribute to the household expenditure. Since K has moved to the student accommodation, it is reported most recently, other than a reference in her recent submission, the Public Trustee paying some of the funds for K's accommodation, there is no reference to K's ongoing management of her financial affairs.
S reported that the represented person was at great risk of financial exploitation as the young people with whom she is in contact exploit her for access to funds for alcohol, and K is described by S as slow to understand their motives despite these being explained to K.

The wishes of the represented person

As the represented person did not attend on 5 December 2017, the directions hearing or the final hearing on 26 March 2018, the Tribunal has not heard directly from K.
As noted earlier, the represented person was interviewed directly by the Public Advocate, and a report was produced of that interview in which the represented person gives varying views of the matters which I will refer to later. The report of the Public Advocate refers to a later contact with the Office of the Public Advocate and reference being made while the investigator was on leave, referring to the conflict of interest which had not been raised previously, and allegations of physical assault by S which, had not been raised with the investigator.
This expression of the views of the represented person appears to follow what has been a pattern identified in the proceeding before the Tribunal, that the represented person expresses differing views frequently. She changes her views frequently. The pattern, I find, has occurred in the past and was identified in the Family Court judgment in respect of the views expressed by the represented person as a child and I find supports the continuing suggestibility of K.
It appears to the Tribunal that when the represented person is in the presence of her mother or her grandmother, she is antagonistic and makes allegations of the other. The frequency of her change in her expressed wishes illustrates the vulnerability of the represented person to suggestion in the view of the Tribunal. In the course of the proceeding, the represented person appears to have changed her mind, depending on who was going to assist her.
As I noted earlier, in some correspondence, she requested that information not be given to her grandmother, on other occasions, reported that her grandmother was of assistance to her. In another document, she states that her grandmother has misused her funds held by the Public Trustee, and in the most recent submission prepared with the assistance of the grandmother and submitted on the represented person's behalf by the grandmother, the represented person appears to adopt the positions expressed by the grandmother regarding her reported history of a background of abuse and allegations that the mother has psychosis.
Given the changing nature of the views expressed by the represented person, apparently in response to changes of contact with either her mother or grandmother, the Tribunal is not able to conclusively determine the wishes of the represented person, although it appears she has consistently supported the need for management of the criminal injuries compensation funds. In respect of management of those funds, all the parties support the appointment of the Public Trustee, including the represented person who indicates she is afraid of spending her compensation funds. She is reported, by the Public Advocate to say she does not know how to budget. She expressed, concern and anger towards the use of her funds in the past.
There was an exploration by the Public Advocate of a less restrictive alternative to the management of these funds through the use of a joint bank account with the mother. However, in the same report, the relationship between the represented person and her mother is described as conflictual and the represented person is reported to be disrespectful and critical of her mother. In these circumstances, such an arrangement would be unlikely to be durable, and in any event, it is not supported by the mother, who supports the appointment of the Public Trustee.
Even if the represented person is not capable of managing her affairs, the Tribunal must consider whether there are less restrictive alternatives, as is proposed by the Public Advocate or canvassed by the Public Advocate. In respect of the financial decisionmaking, although both the mother and grandmother considers that the represented person is not able to manage her youth allowance, the mother does not support a plenary order and considers that the income management or Centrepay arrangements through Centrelink could assist the represented person to manage her day to day expenditure.
The mother does not support a plenary order. She seeks that an order only in relation to the compensation funds.
In respect of the administration application, I am satisfied that the presumption of capacity in respect of the management of her compensation funds has been displaced, and I find that by reason of her complex mental health diagnosis, including attention deficit disorder, post traumatic stress disorder and major depression. These are mental disabilities for the purposes of the Guardianship and Administration Act. And consistent with her own view, K is unable to make reasonable judgments about her expenditure or her compensation funds because her spending is, according to the evidence of the grandmother and mother, likely to be driven by her impulsive or compulsive decisionmaking.
It may be the case that more simple decisions are beyond the represented person. However, I accept the proposition of the Public Advocate that the represented person as a young person should be given the opportunity, as she is now, living independently of family members, to attempt to manage these matters for herself, perhaps through the proposals made by the mother through Centrepay or Centrelink. If this does not work effectively, the order can always be reviewed.
In respect of the guardianship application, the medical evidence includes diagnoses as referred to above of post traumatic stress disorder, major depression, ADHD. There are references to other diagnoses referred to in the Public Advocate's report
The Public Advocate reports when interviewing the represented person; the represented person herself considers that she is capable of managing her medical treatment; that she manages all her medications; she understands what doctors say; and has, with the assistance of her mother and the support of her grandmother, managed her own contraception. In contrast to the represented person's views, the applicant's mother states that the complex dental surgery that is proposed for the represented person as treatment for a misalignment of her jaw, and options have been discussed with the represented person which the applicant mother does not consider she fully understands or that she understands the consequences and risks of the surgery.
The applicant said in the hearing that because of the nature of this proposed surgery and the changes or potential changes to the appearance of the patient that sessions with a psychologist to assess her capacity, to assess the represented person's capacity and the ability of the patient to manage the resulting changes in appearance are required. However, this has not occurred. The represented person is also said to have an arachnoid cyst in her brain which is displacing her facial nerve.
This is reported in the Public Advocate but is not reported in any of the medical reports before the Tribunal. The mother takes issue with the quality of the dental treatment being offered to the represented person, and when the represented person attended Fiona Stanley Hospital with the dental surgeon with the advocate, (who has now withdrawn from advocating for her), the doctor is reported to have been 'glad' that the mother was no longer involved because it was said that she was interfering with the treatment.
As noted, the grandmother and Public Advocate support further assessments, differing in their view as to what sort of assessment should be undertaken. In respect of the personal decisionmaking, there are a number of issues confronting the represented person, including that she is reported to be placing herself at risk of sexual exploitation. She is charged with assaults against her mother and grandmother. There is apparently a referral of an assessment of her fitness to plead in respect of those charges. The represented person states in her submission that she has not had access to psychiatric care since December 2017, and is reported to have had a deterioration in her mental health.
As noted, she is facing complex dental surgery where an assessment of her capacity to undertake or consent to such surgery validly has not been undertaken. She is a respondent to a violence restraining order taken out by her grandmother, yet it appears she has been in contact with the grandmother in possible breach of that order. Although the medical evidence indicates the represented person is capable of making decisions, or the weight of the evidence indicates the represented person is capable of making decisions, in respect of the complex facial surgery, this has yet to be assessed. This is a matter that does need to be considered before this surgery proceeds.
On the available evidence, however, the weight of that evidence is that the presumption of capacity of the represented person has not been displaced in relation to medical treatment. Accepting the evidence of the mother and grandmother that the represented person places herself at great risk of sexual exploitation, the finding is open that she is not able to look after her own health and safety. I consider it is also open to the Tribunal to make the finding that the represented person is in need of oversight and care in the interest of her own health and safety or for the protection of others, and make this finding on the basis of her expression of suicidal thoughts which both the grandmother and mother report; her assaultive behaviour, which has resulted in charges being laid against her, and her extreme vulnerability to suggestion.
The represented person is reported to be overwhelmed and unable to participate in the processes such as appearing in court to deal with the charges she is facing, unable to participate in the Tribunal's processes due to the risk to her mental health, and the risk of triggering her post traumatic stress disorder. In addition to the material referred to above, I find that the represented person is suggestible and vulnerable to manipulation to an extreme extent, to the point that she reports to health professionals varying information based on the person who has brought her to the appointment or with whom she is living at the time. This echoes the assessment by the Family Court.
The needs of the represented person include: an appropriate assessment of her capacity; a review of the various diagnoses made; and consideration of appropriate treatment. I consider there is a need for an independent decisionmaker to determine the services to which the represented person should have access, including psychiatric services and legal services.
I find that the conflict between the grandmother and the mother has impacted adversely on the represented person's access to services, and potentially on the quality of those services because of the unreliability of the history provided by the represented person depending on who has taken her to the appointment. There does need to be an appropriate authority for the determination of the services to which the represented person should access to provide a proper basis of the payment of those services by the Public Trustee as administrator.
In the past, the mother has taken issue with the expenditure by the Public Trustee of trust funds for payment of services which were not, in her view, appropriately purchased for the represented person. As noted, there needs to be an assessment of the represented person's capacity to consent to facial surgery and dental treatment and if she does not have capacity to consent to that treatment, an application should be made for the appointment of a guardian as a substitute decisionmaker to make this decision on her behalf. Although I accept the mother has made strenuous efforts in relation to this issue, it appears that she is not able to progress that in an effective way with Fiona Stanley Hospital. She reported that when the represented person was told of possible adverse consequences of the surgery, that this caused the represented person to assault her in the car.
I find there is also a need for someone to have the appropriate standing in the court to deal with any violence restraining order taken out against the represented person, and I think this is illustrated in the transcript provided by the grandmother where she sought a variation of the orders made by the court for the VRO where the represented person is respondent. The lack of clear standing in relation to that is illustrated by the magistrate's comments.

The represented person herself, as I have noted, is overwhelmed and unable to manage these processes for herself. There is authority that the Tribunal can appoint a guardian that in respect of such a circumstance, the citation being Public Advocate and CEF [2010] WASAT 54.
The orders of the Tribunal are therefore as follows:
That the Public Trustee is appointed the limited administrator of the estate of the represented person, with the powers of a plenary administrator in respect of the funds held by the Public Trustee as the compensation funds, including to pay debts of the represented person and to maintain the represented person.
The guardianship order is as follows and I am satisfied that there is no one else suitable for appointment other than the Public Advocate. No one else is proposed, but even if they were, the extent of the conflict which has been demonstrated before the Tribunal and the historical conflict between the mother and the grandmother indicates the inability of either to be appointed as guardian. The mother confirms that she does not seek her appointment, because she believes that someone else needs to act in the best interests of the represented person. The order is as follows:
That the Public Advocate is appointed limited guardian to determine the services to which the represented person should have access; to facilitate and consent to an assessment of the represented person's capacity to make or consent to dental and facial surgery; and, I think, to make decisions about her person and her estate; to determine the contact the represented person should have with others, and this is in respect of any violence restraining order that might be, application that might be made or might need to be made; to seek legal advice and representation on behalf of the represented person and to advocate generally for her in relation to any police investigation, criminal charges, or related proceedings.
I make that order because the evidence of the mother and grandmother in relation to these charges raises some issues around the instructions that might be given to a solicitor to defend these proceedings: both indicated that the represented person should plead not guilty to these charges. The mother, on the basis that the represented person was not responsible legally for the offence, and the grandmother on the basis that there was provocation by the mother.
Now, because of what I have said about the inability of the represented person apparently to maintain a consistent view about issues, I think there is great concern about her ability to instruct solicitors in relation to these proceedings. She has also been unable to attend these hearings of the Tribunal and has sought not to attend court. At some point, those matters are going to be dealt with by the court, and I consider that she needs advocacy and assistance in relation to the conduct of those matters before the court.
I also appoint the Public Advocate to act as guardian ad litem or next friend in respect of any proceedings for an application for a violence restraining order in which the represented person is the respondent or the protected person.
The suggestibility and the doubt about capacity expressed by the mother in relation to the complex medical decisionmaking, the numerous changes of medical practitioner, the non-follow up of medical treatment because there is a doubt about who has arranged the medical treatment, and the conflict between the mother and the grandmother lead to uncertainty about who has authority to manage these matters for the represented person.
The represented person clearly is not managing those parts of her life herself. She is, I think, responding to the expectations or potentially the manipulation of others in relation to treatment to the history given, and it is essential, in my view, in the best interests of the represented person that there be some independent oversight of the treatment to which she has access. Now, she may be able to consent to it when she gets there, and it may be the case that she can consent to the dental treatment following an assessment of that. But it seems to me that she is extremely vulnerable. The uncontested evidence of both K's grandmother and the mother is that she is frequently suicidal. She makes threats of suicide.
Her vulnerability, I don't think, can be overemphasised. So for those reasons, I consider that there does need to be a follow up of the assessments that have been suggested. But there needs to be a stepping back and an ability for the represented person to be assisted to deal with these matters without the overlay of this quite terrible history of conflict. Now, both the mother and the grandmother have their own views about that. But I consider that it is essential for the represented person that she have independent advocacy and representation in relation to the management of these most basic services for her, given her mental health diagnosis.
Because of the likely length of time for these assessments to be conducted, I think that the minimum period would be two years.
At the hearing yesterday, K's grandmother made an oral application for the provision of a transcript of the hearing. At that time, I said that she would need to make a written application. I have considered that overnight, and I am going to treat her comments made in the hearing as an oral application pursuant to s 112(4) of the GA Act for access to the transcript. Obviously, it hasn't been transcribed, but given that that is an application, I am going to determine it now. I am going to refuse access to the transcript.
And the reason I am doing that is that if the grandmother seeks review of this decision, as I expect she will, the Tribunal has a process by which a hearing book must be provided, and I will indicate to the Tribunal dealing with that matter that a pro bono lawyer should be arranged for K's grandmother if she cannot have representation herself so that the documents before the Tribunal in relation to this matter can be managed in a way that does not find its way into other proceedings or for other purposes and is not used to the detriment of the represented person.
I think there is a high risk that K's grandmother may seek to use material filed in the Tribunal to advance what she says should be an investigation of past and probably in relation to this proceeding as well, judicial abuse of the represented person. I think there is a high risk of that. For that reason, considering the best interests of the represented person, that the conflict the allegations, the historical conflict be reduced in her best interests, I think that those documents need to be closely controlled by the Tribunal, and I refuse the application for access.

Orders

The Tribunal declares that the represented person, K:
(a)is unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to part of her estate; and
(b)is in need of an administrator of her estate;
(c)is incapable of looking after her own health and safety;
(d)is in need of oversight, care or control in the interests of her own health and safety; and
(e)is in need of a guardian.

and the Tribunal orders that:
1.The order made on 28 November 2017 pursuant to s 65 of the Guardianship and Administration Act 1990 is revoked.
2.The Public Trustee of 553 Hay Street, Perth, Western Australia is appointed limited administrator of the estate of the represented person with all the powers and duties of a plenary administrator in respect of funds held by him paid in compensation to the represented person including:
(a)To pay any debts of, and settle or compromise any demand made by or against the represented person or against the estate.
(b)To apply or expend moneys of the represented person, whether income or capital, for the maintenance, necessaries, comforts and benefits of the represented person, in such manner and to such extent as the administrator, having regard to the circumstances and the value of the estate of that person, consider proper and reasonable.

3.The Public Advocate of David Malcolm Justice Centre, Level 23, 28 Barrack Street, Perth, Western Australia be appointed limited guardian of the represented person with the following functions:
(a)To facilitate and consent to an assessment of the represented person's capacity to consent to proposed dental and facial surgery and to make decisions about her personal and financial affaris;
(b)To determine what contact, if any, the represented person should have with others and the extent of that contact;
(c)To determine the services to which the represented person should have access;
(d)As the guardian ad litem of the represented person, defend or settle any legal proceedings taken against the represented person except proceedings relating to the estate of the represented person;
(e)As the next friend of the represented person, commence, conduct or settle any legal proceedings on behalf of the represented person, except proceedings relating to the estate of the represented person; and
(f)To seek legal advice and representation on behalf of the represented person and to advocate generally for her in relation to any police investigation, criminal charges or related proceedings.

4.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.
5.The administration and guardianship orders are to be reviewed by 28 March 2020.

The Tribunal orders that:
1.On an oral application made in the hearing on 27 March 2018, T's application to access documents is refused.
2.The Tribunal has determined that the risk that the applicant for access would use the transcript of the hearing for an improper purpose is too great and is not in the interests of the represented person's privacy that there be any form of publication of the proceeding before the Tribunal.
3.A copy of this order is to be provided to the applicant in GAA 3009/2017, Public Trustee and Public Advocate.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
F CHILD
18 APRIL 2018