KSC
[2013] WASAT 56
•18 APRIL 2013
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: HUMAN RIGHTS
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: KSC [2013] WASAT 56
MEMBER: MS S GILLETT (MEMBER)
DR F NG (SENIOR SESSIONAL MEMBER)
MR J JAMES (SENIOR SESSIONAL MEMBER)
HEARD: 30 OCTOBER 2012 AND 11 DECEMBER 2012
DELIVERED : 18 APRIL 2013
FILE NO/S: GAA 2621 of 12
MATTER :KSC
Represented Person
Catchwords:
Guardianship and administration Review of administration order Represented person with diagnosis of delusional disorder driving litigious behaviour Need for continued protection of estate from further unnecessary legal costs Reappointment of Public Trustee as plenary administrator
Legislation:
Guardianship and Administration Act 1990 (WA), s 3, s 17A, s 64, s 68, s 86, s 112(4)
Mental Health Act 1996 (WA)
Result:
Appointment of Public Trustee as plenary administrator confirmed
Summary of Tribunal's decision:
A 74yearold woman with a diagnosis of mental illness sought revocation of the orders made by the Full Tribunal which confirmed an administration order appointing the Public Trustee as plenary administrator of the woman's estate. The woman made lengthy and numerous written submissions to the Tribunal, however, no further medical evidence was submitted. The Tribunal was satisfied on reviewing all of the available evidence that an administration order for the represented person was needed because the represented person continues to suffer from a delusional disorder driving litigious behaviour and her impaired decisionmaking in relation to initiating and continuing legal proceedings creates a real risk to her estate. The Tribunal determined that the Public Trustee should remain appointed as plenary administrator and that the administration order be reviewed in a further five years.
Category: B
Representation:
Counsel:
Represented Person : N/A
Solicitors:
Represented Person : N/A
Case(s) referred to in decision(s):
KSC [2012] WASAT 1
KSC [2012] WASAT 51
REASONS FOR DECISION OF THE TRIBUNAL:
Background
KSC was first made subject to an administration order on 16 August 2011. At that time KSC was detained as an involuntary patient under the Mental Health Act 1996 (WA) with a diagnosis of a delusional disorder which was said to be driving her litigious behaviour. On periodic review of the administration order on 8 December 2011, the appointment of the Public Trustee as plenary administrator was confirmed for a further five years as the Tribunal determined that the issues confronting the represented person were of long standing. The Tribunal had first appointed the Public Trustee as the administrator to protect the represented person's estate from further legal costs incurred through the continuation of legal proceedings in which the represented person had been engaged for many years. The represented person had incurred significant legal costs in the past and had been subject to seizure of some of her property to meet debts, including unpaid legal fees. On review of the order, the Tribunal determined that the represented person continued to suffer from a mental disability and that she needed an administrator to protect her estate from further unnecessary costs. The represented person wanted to continue legal proceedings which had no prospect of success and which would likely lead to further costs and potentially cause further financial loss to her estate. As the represented person was reportedly refusing treatment, the Tribunal found it was likely that her diagnosed mental illness would continue and result in her continued inability to make reasonable judgments about legal proceedings which would again put her estate at risk. Written reasons were published for the decision on review: see KSC [2012] WASAT 1.
KSC then made an application on 16 December 2011 under s 17A of the Guardianship and Administration Act 1990 (WA) (GA Act) for the Full Tribunal to review the decision made by a single member of the Tribunal on 8 December 2011. The Full Tribunal had before it the same medical evidence as was before the single member, and written reasons were published by the Full Tribunal: see KSC [2012] WASAT 51. In respect to the evidence before the Full Tribunal, it is stated at [16], '… no medical or other evidence has been presented by KSC to show that she is of sound mind'. On review the Full Tribunal confirmed the administration order appointing the Public Trustee as plenary administrator of the estate of the represented person and made the order reviewable within five years.
The current application
KSC lodged an application under s 86 of the GA Act on 23 July 2012 seeking revocation of the administration order or, alternatively, proposing the appointment of her sons, SL and ML, as her administrators, and/or two other nominated persons, JL and DE.
The application was initially listed for hearing on 12 October 2012. On 19 September 2012, KSC telephoned and advised that she had sought a psychiatric assessment from Dr T but that he required confirmation of the proceedings at the Tribunal. The Tribunal was further advised that Dr T would not be in a position to provide a report to Tribunal prior to 12 October 2012, the date of the scheduled hearing. On 2 October 2012, the Tribunal wrote to KSC confirming that there were no medical reports attesting to her current medical status and noting the advice to the Tribunal provided by Selby Lodge that no doctor from this service had seen the represented person since January 2012. The Tribunal wrote also on 2 October 2012 to each of the proposed administrators seeking clarification as to:
•whether KSC had discussed with them their proposed appointment;
•whether they were willing to be appointed;
•if they were willing to be appointed, whether the proposal of a joint appointment was supported, and, if so, with whom; and
•whether they would be attending the hearing.
Given the importance of KSC having the opportunity to provide a report of a recent medical assessment in support of her application, the Tribunal vacated the hearing on 12 October 2012 to enable further medical evidence to be obtained. The hearing was relisted to 30 October 2012.
On 25 October 2012, the Tribunal received, by facsimile, a letter from the Mental Health Law Centre (MHLC) advising that they acted for KSC, and an application under s 112(4) of the GA Act seeking access to all documents. An order authorising KSC's legal representative from the MHLC to have a copy of all documents was made on 25 October 2012.
The hearing on 30 October 2012 was attended by KSC's legal representative from the MHLC, representatives from the Public Trustee and JL and DE, two persons nominated by KSC as alternative administrators. KSC did not attend. KSC's legal representative sought an adjournment as he had not been able to obtain instructions from his client. He indicated that KSC had sought his assistance to obtain a second opinion as to her capacity to manage her own affairs, but that since obtaining the documents on 25 October 2012, he had not had the opportunity to obtain further instructions. The Public Trustee's representative clarified that the Public Trustee would make available funds if required for the purpose of obtaining an updated medical assessment. He said that a legal firm contacted by KSC had retained approximately $800 from monies made available to them by the Public Trustee for the same purpose.
The Tribunal granted the adjournment and relisted the hearing to 11 December 2012. The Tribunal was subsequently advised prior to the hearing on 11 December 2012 that the MHLC were no longer representing KSC. The Tribunal received further advice from the alternate administrators proposed by KSC notifying that they were no longer willing to be appointed and that they would not be attending the hearing on 11 December 2012. KSC herself informed the Tribunal that she would not be attending the hearing. On 11 December 2012 the only parties in attendance were the representatives from the Public Trustee. The Tribunal decided to seek clarification from Dr OL, the psychogeriatrician at the Ursula Frayne Unit who was responsible for KSC's treatment at the time the initial application was made, as to whether she was the author of the unsigned doctor's guide in her name received by the Tribunal on 28 June 2011. On 18 January 2013, the Tribunal received further information from Dr OL. The Tribunal reserved its decision from the date of receipt of this information.
Issues for determination
The issues to be decided on review of the administration order are:
•whether the represented person remains a person for whom an administration order may be made; and
•whether she is in need of an administrator of her estate, and, if so, who should be appointed in that role and the terms of the order that should be made.
Is the represented person a person for whom an administration order may be made?
An administration order may be made for a person who is unable by reason of a mental disability to make reasonable judgments about any or all of their estate: s 64 of the GA Act. In her written submissions to the Tribunal, the represented person denies that she has a mental illness or a delusional disorder, and she continues to contend that she can make decisions about her financial and legal affairs.
As no additional medical evidence has been submitted by KSC or obtained by the Tribunal, the medical evidence before the Tribunal comprises the reports provided from Dr DJ, a medical officer from Selby Lodge where the represented person was admitted following her discharge from the Ursula Frayne Unit, and Dr DJ's oral evidence at the hearing on 8 December 2011, the report of Dr OL, a psychogeriatrician with the Ursula Frayne Unit, and the report of Dr SN, a medical officer from the Ursula Frayne Unit. Both Dr OL and Dr SN provided written reports and gave oral evidence at the original hearings. Dr OL responded to the Tribunal's request for clarification concerning the typewritten and unsigned report in her name which was received by the Tribunal on 28 July 2011. Dr OL's letter, in response, received on 18 January 2013, confirms that she was the author of this report and that the report was most likely completed between 26 July and 28 July 2011.
The medical evidence before the Tribunal is set out and discussed in some detail in the previous decisions: see KSC [2012] WASAT 1 and KSC [2012] WASAT 51. In her application to the Tribunal lodged on 23 July 2012 and in further documents lodged on 30 July, 5 October and 29 October 2012, KSC makes allegations about the conduct of the Public Trust Office, and solicitors for the Public Trust, in the management of her estate, and she continues to express conspiratorial beliefs related to past litigation that she has initiated.
The Tribunal finds that the represented person remains a person for whom an administration order may be made in that by reason of the delusional disorder that she suffers, diagnosed by Dr SN and by Dr OL and confirmed by Dr DJ, that she is unable to make reasonable judgments about her estate. The diagnosis of a delusional disorder is a psychiatric condition and therefore a mental disability for the purposes of the GA Act (s 3 of the GA Act). The Tribunal finds that the represented person's decisions about litigation are driven by her delusional beliefs, and as she is unable to make reasonable judgments in relation to litigation, she is therefore a person for whom an administration order may be made. No medical evidence has been submitted by KSC to counter the evidence of Dr SN, Dr OL and Dr DJ. Further, the Tribunal found that KSC's recent correspondence, in its tone and content, is consistent with the diagnosis of a delusional disorder driving litigious behaviour.
Is the represented person in need of an administrator of her estate?
In her written submissions to the Tribunal, KSC denies that she is in need of an administrator of her estate and alternatively seeks two alternative administrators, JL and DE, to be appointed to act on her behalf in place of the Public Trustee. The Public Trustee reports that they continue to be involved in ongoing negotiations with the strata company and its managers in relation to claimed legal costs expended by the strata company in its dispute with KSC over unpaid strata levies. The amount sought by solicitors acting for the strata company is claimed to be $31,460.85, inclusive of interest, in respect to legal fees incurred by the strata company in their dispute with KSC. The Public Trustee further advises that KSC continues to make contact with their office concerning her alleged claim against the State of Western Australia and her belief that she is entitled to receive the sum of $30 million. In respect to her allegations of misappropriation by the Public Trustee, KSC has informed the Public Trustee that she has reported this to the Western Australian Police.
In respect to KSC's current application seeking review of the administration order, the Public Trustee reports that they had received a request for funds, from a solicitor, HL, wishing to act on behalf of KSC, to enable him to obtain and consider a psychiatrist's report in relation to KSC's capacity to resume control of her estate. The Public Trustee undertook to provide funds to enable the psychiatrist's report to be obtained and provided HL's legal firm with a sum of $1,650 for this purpose. Shortly after remitting the funds to the legal firm, the Public Trustee was contacted by another solicitor, AM, who advised that KSC had asked him to assist her in relation to the matter. AM was unaware of the involvement of the other firm. The Public Trustee received advice shortly after, from HL, that KSC had requested HL to cease acting on her behalf and the funds of $805.20 were retained by them for their fees.
The Tribunal is satisfied that by reason of the represented person's attitude to litigation, driven by her mental illness, that she continues to need protection from the consequences of that condition by the appointment of an administrator with authority to decide matters relating to her estate.
Who should be appointed as the administrator for the represented person?
In her application and subsequent submissions to the Tribunal, KSC sought as an alternate appointment of administrator to the Public Trustee. She variably proposed her sons, SL and ML, to be appointed, either jointly with or a combination in one form or another, or, alternatively, with JL and DE. KSC's sons did not attend the hearing; however, the Tribunal received email correspondence from ML on 23 October 2012 which addresses KSC's request for her sons to be appointed her administrators and sets out their reservations as to whether they would be able to carry this out effectively, as both reside permanently overseas.
In response to the Tribunal's letters of 2 October 2012, written responses were received from JL and DE respectively on 23 October 2012 and 25 October 2012, in which each state their willingness to be appointed administrator and support the proposal of a joint appointment. However, the Tribunal was subsequently advised by JL on 4 December 2012 that he and DE were withdrawing their consent to act as administrators and that they would not attend the hearing on 11 December 2012.
Section 68 of the GA Act provides that the Tribunal may only appoint as administrator a person who has consented to act. As none of the parties proposed by KSC as alternate administrators are willing to be appointed to this role, the Tribunal cannot consider their appointment and does not make any findings as to their suitability. The Tribunal decided to confirm the appointment of the Public Trustee as plenary administrator. The Tribunal is satisfied that a plenary order is required to protect KSC's interests, given the risks to the represented person's estate arising from her initiation of numerous legal proceedings in the past. It is appropriate, in the Tribunal's view, to make the administration order reviewable within five years which is the maximum period under the GA Act. The medical evidence indicates there is little prospect for improvement in relation to KSC's delusional disorder, particularly as she refuses treatment for the underlying condition, which she denies.
Orders
For these reasons we make the following orders:
1.The appointment of the Public Trustee of 553 Hay Street, Perth, Western Australia, as plenary administrator of the estate of the represented person, with all the powers and duties conferred by the Guardianship and Administration Act 1990 (WA) is confirmed.
2.The administration order is to be reviewed by 18 April 2018.
I certify that this and the preceding [20] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS S GILLETT, MEMBER