KSC
[2012] WASAT 51
•30 JANUARY 2012
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: HUMAN RIGHTS
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: KSC [2012] WASAT 51
MEMBER: JUDGE D R PARRY (DEPUTY PRESIDENT)
MS D TAYLOR (SENIOR MEMBER)
DR A MCCUTCHEON (SENIOR SESSIONAL MEMBER)
HEARD: 30 JANUARY 2012
DELIVERED : 30 JANUARY 2012
FILE NO/S: GAA 4128 of 2011
BETWEEN: KSC
Represented person
Catchwords:
Guardianship and administration - Review by Full Tribunal under s 17A of the Guardianship and Administration Act 1990 (WA) of decision made by a member to confirm an administration order Tribunal appointed Public Trustee as plenary administrator Represented person suffers from delusional disorder driving litigious behaviour - Need for continued protection of estate from represented person engaging in litigation Length of order Five year order confirmed as no prospect of improvement of delusional disorder on the evidence
Legislation:
Guardianship and Administration Act 1990 (WA), s 17A, s 64
Mental Health Act 1996 (WA)
Result:
Appointment of administrator confirmed
Category: B
Representation:
Counsel:
Represented person : N/A
Solicitors:
Represented person : N/A
Case(s) referred to in decision(s):
KSC [2012] WASAT 1
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
An application was made for review of a determination of the Tribunal, when constituted by a single member, by a Full Tribunal under s 17A of the Guardianship and Administration Act 1990 (WA). In the determination which was the subject of the review, the Tribunal confirmed an administration order appointing the Public Trustee as plenary administrator for the represented person, and made the administration order reviewable within five years.
The Full Tribunal considered that an administration order for the represented person was necessary, because the represented person suffers from a mental disability, namely a delusional disorder driving litigious behaviour, and is unable to make reasonable judgments in respect of her estate. The represented person's impaired decisionmaking in relation to legal proceedings gives rise to a very real risk to her estate from engaging in litigation.
The Tribunal also determined that the Public Trustee should remain appointed as plenary administrator. The Tribunal was satisfied that the Public Trustee was acting in the best interests of the represented person in its role as plenary administrator, particularly in that it had successfully resolved one and partly a second, of the three legal proceedings in which the represented person was a party, and was in the process of satisfactorily resolving the third proceeding.
Finally, in determining the length of the administration order to be for a further five years, the Tribunal considered that, on the evidence before it, there appeared to be no likelihood of an improvement in the represented person's mental condition. However, the Tribunal noted that, should there be a substantial improvement, a review of the administration order could be brought within the five year period.
The Tribunal's reasons, delivered orally and edited from the transcript, were as follows.
Introduction
This is an application brought by KSC under s 17A of the Guardianship and Administration Act 1990 (WA) (GA Act). Section 17A enables a party who is aggrieved by a determination of the Tribunal constituted by a single member to request the President to arrange for a Full Tribunal to review the determination within 28 days of the determination. The President is required to comply with such a request.
The determination that KSC has sought to have reviewed was a decision made by the Tribunal constituted by Member Felicity Child on 8 December 2011 on a periodic review of an administration order appointing the Public Trustee as plenary administrator, in which the member confirmed the order and made an administration order for a period of five years from the date of that order. Member Child subsequently published written reasons for her decision see KSC [2012] WASAT 1 (reasons).
The administration order was originally made six months prior to the periodic review when 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. The six month duration of the original administration order was determined by the member in consequence of her understanding of medical evidence indicating that the condition was improving.
Issues for determination
There are two principal issues for determination in this review, which is a hearing de novo. They are the same issues as were identified by the member at [8] of her reasons. The first issue is whether the represented person remains a person for whom an administration order may be made. The second issue is whether she is in need of an administration order for her estate and, if so, who should be appointed to that role and the terms subject to which the order should be made.
KSC has also made a number of specific points in her grounds for review. Although this is a hearing de novo and a number of those points relate to the conduct of the hearing before the member, the Tribunal will return to address those grounds at the end of these reasons.
Should an administration order be made for the represented person?
Returning to the first issue for determination of whether an administration order may be made for the represented person, s 64 of the GA Act provides that:
… where the State Administrative Tribunal is satisfied that a person in respect of whom an application for an administration order is made under section 40
(a)is unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all or any part of his [or her] estate; and
(b)is in need of an administrator of his [or her] estate,
the Tribunal may by order declare the person to be in need of an administrator of his estate, and if it does so shall appoint
(c)a person to be the administrator; or
(d)persons to be joint administrators,
as the case may require … .
The medical evidence before the Tribunal is in the form of a report of Dr DJ, who diagnosed KSC as having a 'delusional disorder'. Dr DJ expressed the opinion that KSC is incapable of making reasonable decisions in relation to her financial affairs in consequence of her delusional disorder. The delusional disorder, it appears from Dr DJ's report and the social work report of AP, relates to, primarily, the conduct of a series of court proceedings.
We are satisfied, as was the member, that KSC is unable by reason of a mental disability, namely a delusional disorder, to make reasonable judgments in respect of matters relating to her estate and is in need of an administrator of her estate. The need for the administration of KSC's estate arises from her impaired decisionmaking in relation to legal proceedings and the very real risk to her estate from initiating and continuing proceedings.
At the time of the initial administration order and the periodic review, KSC was a party in three legal proceedings. The Public Trustee as the administrator has satisfactorily resolved one of those proceedings, being a defamation proceeding, and has resolved, subject to the question of costs, a dispute in relation to the strata company that owns the complex in which KSC resides.
The third and final proceeding involves a claim for compensation against the State, in respect of which KSC has received counsel's advice on two occasions indicating that there is no reasonable prospect of success. The Public Trustee has obtained the agreement of the defendant in this latter proceeding to withdraw or discontinue that proceeding with each party to pay its own costs. This would be a very satisfactory outcome in KSC's best interests.
KSC has written to the Tribunal on a number of occasions and the Tribunal has read that correspondence. The correspondence contests the diagnosis of delusional disorder and contends that KSC is of sound mind. However, no medical or other evidence has been presented by KSC to show that she is of sound mind. Furthermore, sadly, KSC's correspondence, in its tone and content, confirms and is consistent with the diagnosis of delusional disorder. The most recent correspondence refers to KSC's understanding that the compensation proceedings were settled in late December 2011 with the payment of a multimillion dollar amount in her favour.
The Tribunal is satisfied that by reason of the attitude to litigation expressed by KSC, driven by her mental illness, she certainly needs 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 and what should be the terms of the order?
As to the second issue for determination as to who should be appointed as administrator and the terms of the appointment, we are satisfied that the Public Trustee has appropriately discharged the role of administrator in the best interests of KSC, and it is appropriate to appoint the Public Trustee to that role for a further period.
In relation to the terms of the order, it is appropriate, in our view, to impose a plenary order. The Tribunal would always seek to minimise the extent of an administration order affecting a person's capacity to make decisions. However, we are satisfied that nothing less than a plenary order is in the best interests of KSC, given her mental disability.
In relation to the period of the order, as noted earlier, the initial administration order was for a period of only six months. It appears from [34] [36] of the Member's reasons that the period of six months was determined on the basis of the evidence of Dr OL, a psychogeriatrician, which indicated that KSC was 'improving'. Dr OL said:
Expectations are for full response to antipsychotic treatment in six to eight weeks, and further assessment of cognition will take place then.
However, it appears to us that Dr OL's opinion related to the acute psychotic presentation at the time, rather than to the underlying condition. It appears that the acute presentation did settle somewhat while KSC was an involuntary patient, but it is clear to us, based on the medical evidence and as confirmed by KSC's own correspondence to the Tribunal, that there remains the underlying mental disability, and it is manifest and unabated. On the evidence, there is little prospect for improvement in relation to that underlying condition in the future.
It is therefore, in our view, appropriate to make the administration order reviewable within five years, which is the maximum period under the GA Act. We note that KSC, in her correspondence and in her application to the Tribunal, requested that the administration order be made reviewable after two months. For reasons that we have given, this would not be in the best interests of KSC. We also note, however, that if there is a substantial improvement in the underlying mental disability then there could be an application for review of the order before the expiration of the five year period that we will impose.
The applicant's additional grounds for seeking review
As noted earlier, in her correspondence to the Tribunal, and in the application for review, KSC raised a number of grounds in addition to her contention that she is of sound mind.
First, KSC contended that the member did not review the order as was originally required by 16 November 2011, but rather did so on 8 December 2011. However, as the member explained during the course of the hearing on 8 December 2011, at page 17 of the transcript of hearing, the review could not occur within the period set in the original order because of the member's illness. The member apologised for the slight delay in the completion of the review.
Second, KSC expressed the view that the Public Trustee has not acted in her best interests and indeed has breached the legislation. We are satisfied that the Public Trustee has indeed acted in KSC's best interests and has successfully resolved one and partly a second of the three proceedings, and is in the process of satisfactorily resolving the third proceeding. It is in KSC's best interests for those proceedings to be resolved without further denuding her estate.
Finally, KSC was concerned by the length of the order which she described in her application as 'harsh, devastating order of five years'. For reasons that we have given, we consider that the five year period is appropriate, principally because there is, on the evidence we have, no likelihood of an improvement. However, should there be a substantial improvement, a review can be brought within the five year period.
Orders
For these reasons, we make the following orders:
1.The order made on 16 August 2011 and confirmed on 8 December 2011, appointing the Public Trustee of 565 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 30 January 2017.
I certify that this and the preceding [27] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
JUDGE D R PARRY, DEPUTY PRESIDENT