KAB and KB
[2015] WASAT 65
•5 JUNE 2015
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: KAB and KB [2015] WASAT 65
MEMBER: MS A SEGHEZZI (SESSIONAL MEMBER)
HEARD: 28 NOVEMBER 2014, 9 JANUARY AND 20 MARCH 2015
DELIVERED : 5 JUNE 2015
FILE NO/S: GAA 4177 of 2014
BETWEEN: KAB
Applicant
AND
KB
Represented Person
Catchwords:
Guardianship and administration Applications for appointment of guardian and administrator Borderline personality disorder Whether statutory presumption of capacity is rebutted
Legislation:
Guardianship and Administration Act 1990 (WA), s 4, s 4(1), s 4(3), s 43, s 43(1), s 64, s 64(1)
Mental Health Act 1996 (WA), s 26
Result:
Application for guardianship and administration orders dismissed
Summary of Tribunal's decision:
The Tribunal was not satisfied on the evidence presented to it that the statutory presumption of capacity is rebutted.
Category: B
Representation:
Counsel:
Applicant: In Person
Represented Person : In Person
Solicitors:
Applicant: N/A
Represented Person : N/A
Case(s) referred to in decision(s):
Airedale National Health Service Trust v Bland [1992] UKHL 5; [1993] AC 789
Brightwater Care Group (Inc) v Rossiter [2009] WASC 229
GC and PC [2014] WASAT 10
KS and CL [2015] WASAT 9
Rogers v Whitaker [1992] HCA 58; (1992) 175 CLR 479
REASONS FOR DECISION OF THE TRIBUNAL:
Background
These proceedings concern KB, a 19‑year‑old woman who lives with her mother and younger brother.
KB has current mental health issues requiring treatment. KB has received treatment for her mental health issues in the private and public sectors, including as a voluntary patient, and as an involuntary inpatient under s 26 of the Mental Health Act 1996 (WA) (MH Act).
KB's mother, KAB, brought applications for orders (applications) under s 43(1) and s 64(1) of the Guardianship and Administration Act 1990 (WA) (GA Act) on 1 October 2014 for the Tribunal to appoint a plenary administrator and a guardian for KB. The notice of hearing of the applications was served on KB on 30 October 2014.
The applications were heard together. The hearing of the applications was adjourned twice to take into consideration the needs of various parties to the hearing, and so was conducted over three different dates, being 28 November 2014, and 9 January and 20 March 2015.
Prior to the date of the third hearing of the applications, the orders sought by the applicant under the guardianship application were amended from a plenary order to an order in the following terms:
[KAB] be appointed as Guardian for [KB] in relation to all matters regarding [KB]'s general medical health matters and mental health matters, with any and all practitioners and associated services.
Statutory framework
Section 43 of the GA Act provides that the Tribunal can make a guardianship order if it is satisfied that:
a)KB is 18 years or over ‑ this requirement is satisfied;
b)one or more of the following applies:
i)KB is incapable of looking after her own health and safety;
ii)KB is unable to make reasonable judgments about matters relating to her person; or
iii)KB is in need of oversight, care or control in the interests of her health and safety or for the protection of others. (I note that, on the information before me, no issue arises in these proceedings regarding the protection of other persons.); and
c)KB is in need of a guardian.
Section 64 of the GA Act provides that the Tribunal can make an administration order if it is satisfied that:
a)KB is unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to any or all of her estate; and
b)KB is in need of an administrator.
Section 4 of the GA Act sets out principles the Tribunal must observe when determining matters of this kind. The principles can be summarised as follows:
a)The primary concern of the Tribunal must be KB's best interests.
b)KB is, relevantly, to be presumed to be capable of:
i)looking after her own health and safety;
ii)making reasonable judgments about matters relating to her person;
iii)managing her own affairs; and
iv)making reasonable judgments about matters relating to her estate,
until the contrary is proven to the Tribunal's satisfaction.
Section 4 of the GA Act does not expressly state that there is a presumption that KB is not in need of oversight care or control in the interests of health and safety, but the generality and breadth of the other presumptions specified suggest that at least there will be a starting point that she will not be in such a need.
c)A guardianship or administration order should not be made if KB's needs can be met by other means less restrictive of her freedom of decision and action, and any order made should be in terms that impose the least restrictions possible on her freedom of decision and action.
d)The Tribunal should seek to ascertain KB's views and wishes.
Issues for determination
Presumption of capacity
As indicated above, s 4(1) of the GA Act states that, in dealing with proceedings commenced under that Act, the Tribunal shall observe the principles in that section. One of those principles is the 'presumption of capacity' in s 4(3) of the GA Act, which states as follows:
Every person shall be presumed to be capable of:
(a)looking after his [or her] own health and safety;
(b)making reasonable judgments in respect of matters relating to his [or her] person;
(c)managing his [or her] own affairs; and
(d)making reasonable judgments in respect of matters relating to his [or her] estate,
until the contrary is proved to the satisfaction of the State Administrative Tribunal.
In GC and PC [2014] WASAT 10, the Full Tribunal said, at [36]:
… The statutory presumption of capacity is a fundamental principle in the GA Act and serves to protect persons who are the subject of proceedings under the GA Act from having their decisionmaking capacity removed from them and a substitute decision‑maker appointed for them under the Act. Because of the significant consequences for an individual of having their decisionmaking capacity removed from them and a substitute decision‑maker appointed for them under the GA Act, clear and cogent evidence is required to rebut the statutory presumption of capacity.
Is the presumption of capacity rebutted in this case?
The Tribunal is not satisfied on the evidence presented to it that the statutory presumption of capacity is rebutted in these applications. The evidence is not clear and cogent. It is equivocal. It does not prove to the satisfaction of the Tribunal that the proposed represented person is incapable of looking after her own health and safety, unable to make reasonable judgments in respect of matters relating to her person, manage her own affairs and make reasonable judgments in relation to her estate.
Evidence and material before the Tribunal
Evidence from hearings
In the course of hearings on 28 November 2014 and 9 January and 20 March 2015, the Tribunal heard from the following persons:
•KB, the proposed represented person;
•KAB, the applicant mother of KB;
•SB, the proposed represented person's father;
•BD, a mediator/family advocate employed by KAB;
•Dr BH, a medical officer from the Alma Street Centre (attended the 9 January 2015 hearing only);
•Mr Coniglio from the Office of the Public Advocate; and
•Ms B, a mental health nurse (by telephone to the March 2015 hearing).
Written submissions
The Tribunal received written submissions provided by:
•the applicant;
•KB's father;
•KB's maternal aunt;
•DL, family friend of the applicant; and
•the Office of the Public Advocate (a report dated 25 November 2014);
and medical reports and other documentation referred to in these reasons.
Medical information
The medical information taken into consideration by the Tribunal included:
•clinical file records relating to KB provided to the Tribunal by Fremantle Hospital and Rockingham Hospital;
•a letter dated 23 April 2014 and a doctor's guide dated 21 November 2014 requested by the Tribunal from Dr BH;
•a letter from Dr S, a specialist psychiatrist, dated 12 November 2014;
•a social worker/carer report from Ms MP, community mental health nurse of Alma Street Centre, Fremantle Hospital, dated 23 December 2014; and
•in person evidence from Ms B, care coordinator and mental health nurse, on 20 March 2015.
Given the primary legal issue in relation to the applications was the question of capacity, details of the information provided from each of the medical sources is as follows:
Clinical File Notes – Fremantle Hospital and Rockingham Hospital
A report dated 23 October 2013 from the Child and Adolescent Mental Health Service (CAMHS) provides a detailed mental health summary that was used in the transfer of KB's care from child to adult mental health services. The CAMHS report indicates that KB's first admission to the Fremantle Child and Adolescent Mental Health Service was at age 14 years. The CAMHS report states KB's diagnosis as an emotionally unstable personality disorder (borderline type), and moderate depressive disorder. KB was reported to be at chronic high risk of self‑harm, which had been managed mostly in the community with extensive liaison with inpatient services.
There is no suggestion in the CAMHS report that KB has any cognitive deficits; she is described as intelligent and as having made good academic progress in a FastTrack school programme.
In terms of KB's family arrangements, the CAMHS report stated that KB lived with her adoptive mother, with whom she had an ambivalent and usually hostile relationship, and would prefer to have little involvement with her father, whom she described as having been physically violent to her during her childhood, and whom she found intrusive. When this information was put to SB during the hearing, he did not dispute it.
The CAMHS report stated that it was hoped that in the longer term KB could move out of the family home into supported accommodation to assist her individuation.
After CAMHS referred KB to the adult mental health services at the Alma Street Centre, Dr K, a consultant psychiatrist, reported in a letter to CAMHS dated 16 December 2013 that he had met with KB, KAB, and their 'family advocate' (BD), to discuss the nature of services that the Alma Street Centre could offer to KB, both as an inpatient and in the community. Dr K reported that the client and family advocate did not want ongoing community support as they were happy with the current care arrangements in the private sector. Dr K concluded that they were happy to offer KB adult mental health services should she change her mind.
Dr K's letter makes it very clear that KB is considered to be 'the client' in the adult mental health service.
KB's clinical file notes from the Alma Street CAMHS (Alma Street clinical notes) indicate that KB had voluntary hospital admissions to the Alma Street Centre during 18 February to 4 March 2014; on 2 April 2014; and on 15 April 2014, after being taken to the emergency department by KAB, who was concerned on each occasion by KB's reports of feeling suicidal. After assessment as a voluntary patient on each occasion, the hospital staff discharged KB into the care of her mother.
An involuntary patient order was made under the MH Act on or about 18 August 2014 to detain KB in hospital after KB's outpatient hospital dietician took her to triage in Fremantle Hospital when KB expressed thoughts of self‑harm. It appears that the order to detain was made when KB wanted to leave the hospital to go home. That order expired on 18 September 2014, after which time KB appears to have remained in hospital as a voluntary inpatient until on or about 2 October 2014.
KB's clinical file notes from Rockingham Hospital (Rockingham clinical notes) contain evidence of another order under the MH Act being made on 21 October 2014, when KB was brought from Perth Airport to the emergency department of Rockingham Hospital by a family mediator; engaged in self‑harm and injured a security guard in the emergency department; and stated an intention to leave hospital.
There is a nursing entry in the Rockingham clinical notes, dated 30 October 2014, that KAB intervened in KB's meal care while on the ward and 'is over controlling, [and is] strongly co‑dependant on the ward, which appears to annoy [and] seems to aggravate KB'.
KB was an inpatient in Rockingham Hospital until discharged on 3 November 2014. In his notes on a meeting with KB on 3 November 2014, Dr V, psychiatrist, has recorded that KB has ongoing family relationship issues, including feeling disempowered at home and feeling her mother makes all the decisions, and that she is not allowed to function independently. The notes record that KB indicated that she wanted to be discharged, and was unhappy as to her mother being involved in this as she was more than 18 years of age, although she reluctantly agreed for Dr V to meet with KAB before discharge and discuss KB's plans with KAB. It is of note that Dr V assessed KB's mental state at this time as rational with no evidence of psychosis or manic or depressive illness, but reactive and unhappy when her mother's involvement in her treatment was discussed. Dr V found no grounds for detention under the MH Act, notwithstanding that KB was choosing to leave hospital without accommodation. Dr V's notes indicated that, in his view, KB was to be treated as a competent adult; he would accept it as her choice; and that KB was agreeable to deal with the consequences of living on the streets and knew that she could present at an emergency department.
The Alma Street clinical notes indicate that KB did, in fact, present at the Fremantle Hospital emergency department within two days of discharge, being 5 November 2014, describing suicidal ideation. The Alma Street clinical notes state that KB was admitted to hospital as a voluntary patient, was assessed as being at no acute risk of harm, and was given information on how to contact crisis accommodation. KB is reported as informing the Alma Street treating team that she did not want them to contact her mother, but contacted her mother herself on discharge on 7 November 2014 and returned to live at her mother's home.
Dr BH, medical officer, Alma Street Centre, Fremantle Hospital
The Tribunal received two pieces of written medical evidence from Dr BH. The first was a letter written by Dr BH, addressed 'to whom it may concern' and dated 23 April 2014. The purpose of this letter is unknown, but it states:
This is to advise that [KB] is a current inpatient of the Alma [Street] Centre and the nature of her condition is chronic. She is incapable of making decisions in her best interest currently, including medically, activities of daily living, and financially. It is unlikely that she will be able to take control of these in the near future.
The later medical evidence from Dr BH is a Doctor's Guide (Guide) requested by the Tribunal, dated 21 November 2014.
When asked in the Guide if KB has an impairment of her cognitive ability or mental function, Dr BH ticked 'Yes' and recorded the relevant diagnosis of 'Borderline personality disorder'. When asked in the form about KB's current capacity to make decisions about her personal healthcare, living situation and financial affairs, Dr BH did not tick either 'Yes' or 'No', but rather stated 'Fluctuates, see below'.
Dr BH's further statement in the Guide was 'Her capacity fluctuates greatly depending on her [unknown word] mental state. She can be completely rational at times and extremely poor in judgment at others, including in the same day/hour.' Dr BH further indicated in the Guide that KB had the capacity to execute a valid Enduring Power of Attorney (EPA) 'as of 20/11/14', and the Tribunal noted that on 19 November 2014, Dr BH witnessed an EPA that KB executed in favour of KAB on that date.
Dr S – specialist psychiatrist
Further medical evidence was received by the Tribunal, being a letter from Dr S dated 12 November 2014 (Dr S' report). Dr S has been treating KB as a private patient. Dr S' report to the Tribunal includes:
I am responding to your letter of 20th October 2014 with respect to an application for guardianship for [KB]. The circumstances are quite unlike the considerable number of such applications in which I have participated. She has no cognitive deficit but rather a rather complicated collection of other psychiatric disabilities.
The predominant one is a borderline personality disorder. This does not provide any cognitive deficit and the situation is that she is capable of making decisions but habitually makes bad ones. This is a very common problem and an increasing problem of Mental Health Services. It is rather complicated by quite poor relations with her mother who I am sure is acting with entirely the best intentions including the application to [the State Administrative Tribunal]. Whether this set of circumstances falls within the range of guardianship I will be only too glad to leave to the [T]ribunal.
Dr S' report indicates that he had decided to treat KB on the basis of a dual pathology, being both personality disorder and bipolar disorder, but 'without a great deal of success so far'.
Ms P ‑ community mental health nurse, Alma Street Centre, Fremantle Hospital
Ms P provided a report dated 23 December 2014 to the Tribunal that KB's family is supportive but also controlling, and this was the basis of much of KB's conflict with her family. Ms P stated that, in her opinion, KB required support and encouragement in all of the areas of medical treatment, accommodation, and access to services and education; however, KB needed to be heard and consulted regarding decisions with respect to medical treatment and education in particular.
Ms B ‑ mental health care coordinator, Alma Street Centre, Fremantle Hospital
Ms B provided evidence by telephone to the Tribunal at the final hearing on 20 March 2015.
Ms B described herself as a care coordinator of the Alma Street Centre, and a mental health nurse. Ms B explained that her role in KB's care was to allocate and coordinate her care, and that she could advocate for whatever KB wants.
Ms B stated that her service could support and advocate for KB by, for example, filling out referral forms, going to Homeswest appointments and going with KB to interviews. Ms B stated that her service has three nurses, three social workers, a professor and a registrar. Ms B stated that she had only recently met with KB, but that she was familiar with her mental health history and diagnosis of emotionally unstable personality disorder.
Ms B was of the clear view that there was no cognitive reason for KB not to make her own decisions. Ms B stated 'I do believe that [KB] has the right to be her own person, you know, her own individual and make choices, whether they're right or wrong. She has [sic] going to learn from her own mistakes just like we all did at 19' (T:12; 20.03.15).
Ms B was of the view that the making of guardianship and administration orders by the Tribunal would be detrimental to KB personally in that KB needed to grow up, and by doing so, could lose her diagnosis. Ms B stated that in her years of practice in community treatment, she had seen that people needed to be able to make mistakes.
KAB asked Ms B at the hearing whether she was of the view that KB needed to make her own medical choices, or just financial choices. Ms B responded by acknowledging that KB was currently making poor choices in her cutting and self‑harming behaviours, but that to take KB's choices away from her in both matters (that is, medical choices and financial choices) would be 'detrimental' to KB because she needed to be able to 'grow up' (T:17; 20.03.15).
Evidence of other persons
Applicant
In her application dated 1 October 2014, KAB describes KB's disability as a psychiatric condition, and provides further details of the disability as 'Bipolar Anxiety PTSD depression type 2 Diabetes, self[-]harm and suicide ideation'.
An email from KAB to the Tribunal on 30 October 2014 indicates that at some time after KB turned 18 years of age (on 2 January 2014) and had become engaged with the services of the Adult Mental Health Service, hospital staff started to inform KAB that they could not act independently of KB's wishes.
KAB's email to the Tribunal stated that the only way hospital staff could intervene was with a guardian's direction which is in KB's best interests and safety.
KAB has indicated in her application that KB needs an administrator appointed because she is 'unable to manage financial decisions and budgeting and liaise with government departments without mental health impacts including anxiety and or depression'.
SB ‑ KB's father
In his submissions to the Tribunal dated 18 March 2015, SB addressed the issue of capacity in the following terms:
[KB] is without doubt very intelligent. I am sure that if [KB] wanted to manage and take responsibility for her affairs, … she could do so. However [KB] has shown consistently that she will not take that responsibility. Perhaps in the future when [KB]'s medications and health are managed correctly and when [KB] gains maturity and learns to co‑operate with the health profession and those in her family trying to help her, she will be able to manage her own affairs. However, today [KB] refuses to take capacity [sic] for the management of her health and financial affairs. Currently [KB] does not have the capacity to manage her health and financial affairs.
BC ‑ KB's aunt
KAB provided a letter dated 25 April 2014 from her sister, Ms C, in support of her applications. Ms C states in her letter that '[KB] is an intelligent girl with serious mental, emotional and physical health issues. [KB] has had self[-]harm tendencies most of her life and these have escalated considerably in the last few years as her mental health has deteriorated with the onset of bipolar'.
BD ‑ family advocate and support for the applicant
BD attended the first and third hearings. BD gave evidence to the Tribunal that she is of the view that KB suffers from bipolar disorder, but that KB had not been able to spend sufficient time in Dr S's care for him to formally include that as a co‑morbid condition for KB.
BD gave evidence to the Tribunal that she noted 'a lot of negative comments' towards [KAB] in the clinical notes and that she thought that was 'somewhat unfair to [KAB] because whenever [KB] is interviewed by those professionals she's always in an agitated state' (T:53; 20.03.15).
BD also gave evidence that KB's mental health nurse did not communicate to KAB to allow KAB to help KB stay safe.
DL ‑ family friend
In her written submission, DL describes KB as a highly intelligent young person who struggles with self‑harm and impulsiveness. DL states that KB has been diagnosed with bipolar and diabetes earlier this year. DL states that she supports [KAB] being considered for both orders, as KB is not rational about her safety and real needs for her health's sake.
Office of the Public Advocate
Mr Coniglio of the Office of the Public Advocate provided a report to the Tribunal dated 25 November 2014, which refers to capacity, among other issues. Mr Coniglio's report indicated that he would rely on the Tribunal's determination in relation to capacity, but was of the view that KB's capacity would fall within the definition of s 43(1) of the GA Act 'such that it would be open for the Tribunal to make a guardianship order', although the answer was not so clear for him in relation to the test for administration under s 64(1) of the GA Act.
Mr Coniglio further stated in his report:
What may further complicate the determination as to capacity is the need to distinguish clearly some elements of behaviour which one might reasonably relate to the development of a teenage child or possibly what may at times … be seen as normal parent difficulties experienced with teenage development.
After hearing the evidence at the hearing on 20 March 2015, Mr Coniglio stated at that hearing that he was of the view that there was 'certainly insufficient evidence for the making of any administration order' (T:57; 20.03.15). He also stated that while he had thought initially that perhaps in these circumstances there was a possibility of making some order in guardianship, on reflection, he thought 'that it would be not appropriate and the evidence that we have isn't sufficient for guardianship as well' (T:57; 20.03.15).
Wishes of the proposed represented person
KB attended all hearings before the Tribunal. KB very clearly expressed her views and wishes at various times in the course of the proceedings in both her words and her actions, including that she agreed with Ms B that she needed 'to have control over my own life' (T:18; 20.03.15) and by choosing to revoke the EPA and Enduring Power of Guardianship (EPG) previously granted by her, when she was informed by the Tribunal at the hearing on 20 March 2015 that this action was within her power (T:26; 20.03.15).
Findings on evidence
There was a difference in opinion between the parties at the hearing as to whether KB lacked capacity and was in need of a guardian and administrator, with the applicant, her family members and friends supporting her applications for a substitute decision‑maker to be appointed for KB, and KB clearly wishing to retain her own decision‑making powers (which view was supported by Ms B, her mental health care coordinator), and the representative of the Office of the Public Advocate coming to the view that there was insufficient evidence to support making the orders sought.
It is clear from the Alma Street clinical notes and the Rockingham clinical notes that KB has mental health issues which have resulted in a chronic risk of self‑harm which, at this time, is considered to be ongoing.
There is a difference of opinion between the public mental health service providers and KB's parents and friends as to KB's diagnosis, but there is consensus between the public mental health service providers and KB's private treating psychiatrist that KB suffers predominantly from a borderline personality disorder.
The fact that a person suffers from a mental health disorder does not necessarily result in that person being unable to make his or her own decisions, and is not, of itself, sufficient to rebut the statutory presumption of capacity under the GA Act: see, for example, KS and CL [2015] WASAT 9.
All of the evidence provided to the Tribunal supports a finding that KB not only suffers no cognitive deficits but, in fact, is generally regarded as an intelligent young woman.
The only medical evidence provided to the Tribunal that suggested that KB may have lacked capacity at a particular time is the letter written by Dr BH addressed 'to whom it may concern', dated 23 April 2014, which stated that KB 'is incapable of making decisions in her best interest currently, including medically, activities of daily living, and financially. It is unlikely that she will be able to take control of these in the near future.' It is of note, however, that in the Guide requested from Dr BH by the Tribunal (dated 21 November 2014), Dr BH was unwilling to state at that time that KB did not have capacity to make decisions, indicating only that the capacity 'fluctuates', and he further indicated in the Guide that KB had the capacity to execute a valid EPA 'as of 20/11/14'.
The other written medical report provided to the Tribunal, from Dr S, provides evidence that KB's predominant psychiatric disability is a borderline personality disorder which 'does not provide any cognitive deficit and the situation is that she is capable of making decisions but habitually makes bad ones'.
The Tribunal finds that, while it is acknowledged that KB suffers from mental health issues, there is not sufficient evidence that KB's mental health issues have rendered her incapable of making decisions in relation to any aspect of her life, including her daily living, medical treatment or financial affairs.
It is clear from the clinical notes and the demeanour of KB at the hearings that there is ongoing conflict in KB's relationship with both of her parents. In terms of the evidence in the clinical notes that KAB 'is over controlling [and] strongly co‑dependant on the ward', when this information was put to KAB during the hearing, she indicated that this comment was made on a day on which she helped with KB's meal care because KB had not wanted to do it herself. BD supported KAB's statement at the hearing, and indicated that KAB was not controlling, but protective, as KB was receiving medication which contra‑indicated certain foods such as cheese and chocolate being consumed.
The evidence before the Tribunal indicated that since KB became 18 years of age, she has, at times, exercised her legal right to exclude her parents being involved in her medical treatment, and has made lifestyle decisions that medical professionals have assessed as being within KB's capacity to make, but are contrary to KAB's assessment as being suitable or safe. While there was ample evidence provided to the Tribunal from KB's parents that she has been choosing priorities and making choices with which they do not agree, with the result of considerable anxiety for her parents, this is not sufficient to displace the presumption of capacity.
There is a well‑established principle at common law described as the right of autonomy. It is related to respect for the individual human being and, in particular, for his or her right to choose how he or she should live his or her life: Airedale National Health Service Trust v Bland[1992] UKHL 5; [1993] AC 789, 82. This right was referred to with approval by the High Court of Australia in Rogers v Whitaker[1992] HCA 58; (1992) 175 CLR 479, 487, and by Martin CJ in the Supreme Court of Western Australia in Brightwater Care Group (Inc) v Rossiter [2009] WASC 229 (20 August 2009). The right of autonomy at common law is only displaced by statute in the GA Act if the presumption of capacity is rebutted.
The Tribunal acknowledges that KAB is a very caring parent who made the applications in good faith in an effort to protect KB from perceived harms. The Tribunal further acknowledges that KB's parents are very strongly of the view that she does not have capacity to make her own decisions; however, the evidence of medical professionals before the Tribunal did not sufficiently rebut the presumption of KB' capacity. Further, the evidence provided at the hearing by Ms B (KB's mental health care coordinator) suggested that the grant of the orders sought in the applications would be detrimental to KB, in that KB needed to be able to make her own decisions and make mistakes and, by doing so, could potentially recover from her illness in the long term. In these circumstances, it could well be of significant adverse consequence to KB if the Tribunal was to remove her decision‑making powers at a critical time in her development as a young adult and consequently deny her the opportunity to gain maturity, independence and long term mental health.
Given that the Tribunal has decided not to grant the applications by reason that KB has capacity to make her own decisions in relation to her person and financial matters, the Tribunal notes that KB is at liberty to provide EPAs or EPGs to any person. These powers may be plenary or limited, at KB's discretion, and may also be revoked by KB at any time.
Orders
For these reasons, the Tribunal makes the following orders:
1.The application for a guardianship order in respect of KB is dismissed.
2.The application for an administration order in respect of KB is dismissed.
I certify that this and the preceding [29] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS A SEGHEZZI, SESSIONAL MEMBER
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