KW
[2024] WASAT 95
•10 SEPTEMBER 2024
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: KW [2024] WASAT 95
MEMBER: MS R BUNNEY, MEMBER
HEARD: 5 MARCH AND 28 MAY 2024
DELIVERED : 7 AUGUST 2024
PUBLISHED : 10 SEPTEMBER 2024
FILE NO/S: GAA 42 of 2024
KW
Represented Person
OFFICE OF THE PUBLIC ADVOCATE
Applicant
Catchwords:
Guardianship - Administration - Review of orders - Rare psychiatric condition - Folie à deux - Shared delusional disorder - Risk of neglect - Prospect of rehabilitation - Stable psychological intervention recommended - Eligibility for NDIS - Eligibility for disability support pension - Short orders - Two years - Reappointment of Public Trustee as administrator - Reappointment of Public Advocate as guardian
Legislation:
Guardianship and Administration Act 1990 (WA), s 3, s 51(2)(b), s 51(2)(c), s 51(2)(d), s 70(2)(b), s 70(2)(c), s 70(2)(d)
Mental Health Act 2014 (WA)
Result:
Public Trustee reappointed as administrator
Public Advocate reappointed as guardian
Category: B
Representation:
Counsel:
| Represented Person | : | In Person |
| Applicant | : | In Person |
Solicitors:
| Represented Person | : | N/A |
| Applicant | : | N/A |
Case(s) referred to in decision(s):
FY [2019] WASAT 118
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
KW is a friendly, engaging 40-year-old woman who lives in women's only supported accommodation (Accommodation). She uses a wheelchair for mobility and requires assistance to manage her personal care and incontinence. She lives with health conditions such as obesity, liver disease, menorrhagia (heavy periods) and low iron.
KW has lived with her father MT for her entire life and was completely dependent on him for all aspects of her care. MT is now living in male-only accommodation and they visit each other every day. Her relationship with MT has been described as 'extremely codependent', 'enmeshed' and 'coercive and controlling'. MT has been described as a 'perpetrator' of family violence. However, all KW wants is to move back in with her father so he can continue to be her carer.
KW and MT have been diagnosed with a rare psychiatric disorder known as a folie à deux, which is French for 'madness shared by two'. Also known as a shared delusional disorder, it involves a delusional belief being transmitted from one person to another. Psychiatrist Dr B assessed KW and MT in April 2023 and made the diagnosis based on their shared delusions about paedophile rings, government control and DNA experiments that were performed on the family 300 kilometres north of Perth.
I made orders in May 2023 (Orders) appointing the Office of the Public Trustee (Public Trustee) as KW's administrator and the Office of the Public Advocate (Public Advocate) as her guardian for one year.
With substitute decision-makers in place, KW was hospitalised for five months and her ability to care for herself improved vastly. She started walking. Neuropsychologist Dr M assessed KW and found she was of average intelligence, had no cognitive impairment and underlying psychological factors were the cause of her inability to look after herself. On the basis of this evidence, KW does not meet the criteria for a disability support pension (DSP) or services under the National Disability Insurance Scheme (NDIS).
Following the receipt of updated evidence about KW's current situation and functioning, I have decided to reappoint the Public Advocate and the Public Trustee for two more years. These are my reasons for doing so.
Three questions the Tribunal must answer
The starting point for the Tribunal, when making decisions under the Guardianship and Administration Act 1990 (WA) (GA Act) is that every person is presumed to be capable of looking after their own health and safety, managing their own affairs and making reasonable judgments in respect of matters relating to their estate and their person.
When the 'presumption of capacity' has been set aside, the Tribunal can consider making guardianship and administration orders. The primary concern of the Tribunal is KW's best interests and I must take her views and wishes into account. However, the Tribunal might make a decision in KW's best interests that may not be exactly what she wants.
When deciding whether or not to appoint a guardian or an administrator for KW, the Tribunal must answer three questions:
(a)Does KW lack the capacity to make her own decisions about her personal and financial matters?
(b)If so, is there a need for the Tribunal to make an order to appoint a guardian or an administrator? Or is there a less restrictive way for decisions to be made in KW's best interests?
(c)If there is a need for an order, who should be the guardian or administrator, what functions or powers should they have, and how long should the orders run before they are reviewed?
The Tribunal will make findings of fact about all matters, including capacity, by reference to the oral and written evidence of medical, allied health and other professionals, lay people and of course KW. I have considered all that evidence and need not set it out in detail. The relevant features are summarised later in these reasons.
KW's views and wishes
KW told me that she did not want guardianship or administration orders. She was happy for the guardian to be involved in further applications for NDIS funding but she wanted to make her own decisions in all other areas. KW told me that she wanted to move out of the Accommodation and into a home with MT because they had always lived together. She also wanted him to start receiving the carer's payment again.
I find that while KW can clearly articulate her wishes, which she has done before the Tribunal, expressing a wish is not the same as being able to make a reasonable judgment about the types of matters that are required to keep her safe.
KW's decision to allow her father to informally manage her finances and make lifestyle decisions resulted in a situation of crisis. Specifically:
(a)KW and MT had been homeless for 7 years;
(b)she had no assets and was in debt approximately $13,200 with around:
(i)$5,800 owing to the Department of Communities (Department) in relation to damage to a property they were evicted from in 2016;
(ii)$1,200 owing in fines; and
(iii)$6,200 owing to St John Ambulance;
(c)she was receiving no services and MT was her sole carer; and
(d)MT encouraged KW to decline medical treatment and discharge herself from hospital against medical advice.
When Orders were imposed and KW was finally able to receive medical treatment, her health was so dire that she required hospitalisation for five months. She underwent numerous investigations including the cognitive testing with Dr M, X-rays, MRIs, a PET scan, ultrasounds and intensive rehabilitation with physiotherapists, occupational therapists and others.
As will be explained later in these reasons, MT's presence in KW's life has a negative effect on her ability to care for herself. During her time in Hospital A, she made significant gains in her independence. She was walking and was no longer incontinent. KW's delegated guardian from the Public Advocate (Delegated Guardian) holds the view that KW would be able to live successfully in the community as a functioning adult if she was not influenced and controlled by her father.
I am therefore unable to give effect to KW's wish that the Orders be revoked as that would allow MT to be KW's informal substitute decision‑maker, placing her once again in a situation of extreme risk.
The presumption of capacity
The first matter for the Tribunal to consider is whether the presumption of capacity has been set aside. Neuropsychologist Dr M was asked to assess KW while she was hospitalised to:
(a)clarify the nature of her functional difficulties; and
(b)formally assess her level of intellectual functioning,
to establish her entitlement to NDIS services and determine the appropriate pathway to meet her needs to enable her eventual discharge.
Due to KW's presentation and the complexity of her psychiatric diagnosis, the consideration of the presumption of capacity is nuanced and requires an examination of how the folie à deux has affected her over the course of her life.
Intellectual and cognitive functioning
The standardised cognitive testing undertaken by Dr M found that KW is of average intellectual ability. Her test results and history are not consistent with her having an intellectual disability, a neurocognitive disorder, autism spectrum disorder or ADHD.
Dr M's testing identified weaknesses in certain practical skills, particularly self-care, self-direction and domestic skills, but she had normal functioning in other areas such as communication, social skills, community skills and functional academic skills. When I spoke to KW at the Tribunal hearings in 2024, I found that she was outgoing, sociable and was able to express her views and wishes.
Dr M's view was that KW's results indicate a psychological basis for her poor independence skills, which could be as a result of a lack of opportunities due to her previous living arrangements with MT providing care. Dr M was not convinced that KW's impairments were permanent, given that she had not had long-term, stable psychological intervention for these issues.
Mobility and physical impairments
Dr M also recommended further exploration of the underlying issues relating to KW's mobility to determine the permanency of her physical impairments or whether she could improve. KW told me that:
(a)her mobility issues started in 2016 when they became homeless and she had a bad fall;
(b)she has not been able to walk since they started living at the emergency accommodation which was at some time in 2022;
(c)she cannot walk due to having a broken kneecap; and
(d)she had been assessed by a physiotherapist who noticed that her left leg did not touch the ground when she stood up, and there was a difference in the length of her legs of the height of a fist.[1]
[1] ts 20, 16 May 2023.
From the time she was hospitalised in May 2023, she underwent numerous X-rays and ultrasounds on her ankles, legs, knees, hips and vertebra. She has also had an X-ray on her teeth. She had an MRI of her left ankle and a PET scan on her head, neck, chest, abdomen and pelvis.
The only structural issues identified were:
(a)a suspicion of a fracture of her left kneecap which had healed;
(b)moderate degenerative changes in her left knee, which could be described as 'usual wear and tear'; and
(c)mild degeneration of the facet joints on some of her vertebra, which may cause some pain but would not impact on her ability to walk.
The scans and tests have therefore not revealed any identifiable physical cause for her inability to walk, or confirm that her left leg was shorter than her right.
Description of folie à deux
Shared delusional disorder is included in the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, under the heading 'Other Specified Schizophrenia Spectrum and Other Psychotic Disorder'. It is described as follows:[2]
4.Delusional symptoms in partner of individual with delusional disorder: In the context of a relationship, the delusional material from the dominant partner provides content for delusional belief by the individual who may not otherwise entirely meet the criteria for delusional disorder.
[2] American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, Text Revision. Washington, DC: 2013, page 122.
The legal cases that describe the disorder are often about criminal law, family law or child protection matters.[3] Some involve Munchausen syndrome by proxy,[4] which can escalate to become a folie à deux. The criminal law cases often cite shared religious delusions between family members, with a large proportion of these cases involving homicide or other serious assaults.[5] Cults are also mentioned in the literature and can be considered as a mass shared delusional disorder, with cult participation being a factor that is considered when diagnosing a folie.[6]
[3] Newman WJ and Harbit MA, Folie à Deux and the Courts, The Journal of the American Academy of Psychiatry and the Law 2010, Volume 38, Number 3, page 370 - 375. (Newman and Harbit).
[4] Munchausen syndrome by proxy, also known as factitious disorder imposed on another, is a psychiatric disorder in which a caregiver creates the appearance of health problems in another person, typically their child. This might include altering test samples or injuring the child.
[5] Niazi A.F. Kraya, Colin Patrick, 'Folie à Deux in a Forensic Setting' Australian and New Zealand Journal of Psychiatry [2010]; 31: 883 - 888 (Kraya and Patrick).
[6] Newman and Harbit.
Shared delusional disorder involves one dominant and one submissive person. The dominant person is usually older, more intelligent, better educated and has a more domineering personality. They often have schizophrenia or a similar paranoid psychosis, with fixed delusions. The submissive person typically has a history of depression, has dependent, suggestible personality traits,[7] and are prone to following others.[8]
[7] Kraya and Patrick at 31: 884.
[8] Newman and Harbit at page 373.
In some cases, the dominant person imposes their delusions on, or induces similar delusions in, the submissive person. In other cases, similar delusions develop independently in closely associated individuals.[9]
[9] Kraya and Patrick at 31: 883.
Around 95% of cases of folie à deux involve members of the same family.[10] A long relationship is usually an essential component of the disorder as it creates the attachment of the submissive person to the dominant person, the attachment being a necessary factor in developing the shared delusional belief.[11] The most common types of delusions are persecutory, grandeur and religious, although the delusions may not objectively be considered bizarre.[12]
[10] Kraya and Patrick at 31:883 - 888.
[11] Arnone D, Patel A, Tan GM. The nosological significance of Folie à Deux: a review of the literature. Annals of General Psychiatry, 8 August 2006; 5:11 at page 370 (Arnone, Patel and Tan).
[12] Silveira JM, Seeman MV, 'Shared Psychotic Disorder: A Critical Review of the Literature', Can J Psychiatry, September 1995; Vol 40(7) at pages 389 - 395.
The pair are usually social isolated, which allows the disorder to develop and makes it more difficult to detect.[13] Due to the nature of the illness and their shared beliefs, they will rarely present for treatment as they do not recognise there is a problem.[14]
[13] Kraya and Patrick at 31: 884.
[14] Newman and Harbit at page 370.
In the context of these types of disorders arising in families, the literature mentions the 'abnormal susceptibility' of certain family members to developing a 'pathological symbiotic' relationship.[15] Some children are more vulnerable than others in the development of their identities and have difficulty detaching themselves from the relationship with their primary caregiver to achieve a separate identity.[16]
Application to KW
[15] Dr Michael Gunter Induction, identification or folie à deux? Psychodynamics and genesis of Munchausen syndromes by proxy and false allegations of sexual abuse in adolescents. Med Law (1998) 17: 359 - 379 (Gunter).
[16] Gunter.
KW is the youngest of three children. KW's parents, MT and JT, separated when she was two and a half, and the children continued to live with MT. The children would spend time with JT after school and have overnight time every second weekend and on school holidays, but from a very young age, MT was KW's primary parent and attachment figure.
KW completed Year 8 of high school. She worked in fast food and then at a supermarket for a few years. She had admissions to an Adolescent Unit at 14 following a depressive episode and an overdose at age 15. KW became pregnant with her son at age 19 and was diagnosed with adjustment disorder and ADHD around this time. It appears that the only regular contact KW had with a doctor over the last 20 years was the private psychiatrist who prescribed her dexamphetamine.
She has not worked since age 19 and has been in receipt of Centrelink payments. She has never learned how to drive and relies on MT to drive her, which he still does. KW had presentations to hospital in her 30s for chronic overdosing on dexamphetamine and bipolar disorder, although KW disputes she has ever been properly assessed for this.
In 2016, KW was taken to hospital after being found by Police distressed and displaying rapid speech and thought disorder. She was highly agitated, with manic like presentation and orders were made under the Mental Health Act 2014 (WA) (Mental Health Act). KW recovered shortly thereafter, and the treating team felt that the episode was likely related to the stress of the situational crisis of becoming homeless and overuse of dexamphetamine.
The first application to the Tribunal was filed in April 2023 by a Healthcare Service that was trying to assist KW. KW had been living in emergency temporary accommodation with MT for around one year. KW and MT would lock themselves in the room they shared and would not engage with others. KW and MT agree that KW lost the ability to walk at this time, and MT appeared to blame the temporary accommodation provider for KW's decline in mobility.
The Healthcare Service provided the following summary of KW's condition as at April 2023:[17]
… [KW] was found in dire and squalid circumstances. Her health and mental health had deteriorated to such an extent that she had become bed ridden, incontinent of both feces [sic] and urine, anaemic, malnourished, obese, infested with lice, body lice and the room is infested with flies, maggots and cockroaches. In her current accommodation [KW] is unable to provide her own hygiene and self care due to lack of mobility and difficult access to the bathroom. [KW] has stated that her father changes her incontinence briefs and provides assistance with cleaning her private areas. There is clear evidence of delusional and paranoid disorder that is shared by both [KW] and her father. It is reasonably evident that [KW's] father controls all elements of [KW's] life and this has rendered her completely dependent on him in a way that is pathological.
[17] Service Provider Report dated 27 April 2023, page 4.
Prior to the application being made, KW was assessed by psychiatrist Dr B in early April 2023 and was diagnosed with the folie à deux. Dr B made the following notes during the consultation:
Summary:
There are many delusional beliefs that are intertwined persecutory thoughts around DNA tests with people, and racist thoughts in conjunction with secret societies. There are also paedophile rings involved in conspiracy. She has concerns about security guard with grey hair at Money Street. There are monsters in her ceiling and there is a hit on her and her father's head. She is clear that she is not mental and hears voices[.]
Dr B believed that KW and MT held the same delusional belief condition with significant expressed anger and concern around paedophile conspiracy and government control. The usual treatment for a folie is separation.[18] KW and MT were both placed under the Mental Health Act, with KW being sent to Hospital A and MT sent to Hospital C.
[18] Arnone, Patel and Tan.
The Tribunal hearing occurred while KW was still under the Mental Health Act. MT later discharged himself from Hospital C, but due to the Orders being in place, KW remained in hospital for five months until she was discharged to the Accommodation in October 2023.
Conclusion as to the presumption of capacity
In May 2023, after the diagnosis of the folie, KW was described as:[19]
… unable to attended [sic] to her own self-care and is unable to mobilise. She is confined to an unsuitable and unsafe wheelchair and due to her immobility and incontinence she is soiled with her own urine and faeces …
[KW] is extremely vulnerable and at significant risk of harm and exploitation as she is homeless, immobile and lacks judgement and insight.
Understandably her mental health has deteriorated further, evidenced by escalating psychotic symptoms of delusions and paranoia[.]
[19] Email from Healthcare Provider dated 4 May 2023.
Twelve months later in 2024, the material before the Tribunal included evidence from Dr M, her Delegated Guardian, her trust manager from the Public Trustee (Trust Manager) and the Staff who have assisted her since October 2023, as well as the results of the medical investigations. This evidence demonstrates that KW:
(a)has no intellectual or cognitive difficulties that would render her unable to make her own decisions and care for herself;
(b)during her extended stay at Hospital A, with the robust support provided, her ability to complete activities of daily living improved vastly, to the point where the occupational therapist did not consider it necessary to complete a functional capacity assessment;
(c)since she has been living at the Accommodation, her level of functioning has decreased. When in the presence of her father, or when support is optional, KW will not tend to her own personal care, preferring her father to do it for her;
(d)she has a history of psychiatric diagnoses and involuntary admissions to hospital, including the folie à deux;
(e)she will defer her financial decisions to her father, even though she now has her own bank account and access to her own funds. She would prefer not to pay her debts, which she describes as 'stupid debt things';[20]
(f)she continues to socially isolate herself while living at the Accommodation, only leaving her room if her father is there. She has not spoken to her Delegated Guardian since she was discharged from Hospital A in October 2023;[21] and
(g)her clear wish is to return to the care of her father, an arrangement that has been consistent for her entire life, when to do so has been damaging to her health and wellbeing in the past.
[20] ts 29, 5 March 2024.
[21] Report of Delegated Guardian dated 21 February 2024, page 5.
I am satisfied on this evidence that KW has a mental illness that displaces the presumption that KW is able to look after her own health and safety, manage her own affairs and make reasonable judgments in respect of matters relating to her estate and person.
KW is therefore a person for whom I can consider making a guardianship and administration order.
Question 1 - Does KW lack the capacity to make her own decisions about her personal and financial matters?
(1)(a) When can a guardian be appointed? The test for incapacity
To appoint a guardian for KW, I must be satisfied that she is over 18 years of age and that one or more of the following criteria apply:
(a)she is incapable of looking after her own health and safety;
(b)she is unable to make reasonable judgments in respect of matters relating to her person; or
(c)she is in need of oversight, care or control in the interests of her own health and safety or for the protection of others.
(1)(b) Is KW incapable of looking after her own health and safety?
Independence
KW does not attend to her activities of daily living independently and cannot manage her personal hygiene. KW stays in her room unless her father is present or takes her out of the service.
The Staff advise that when KW first moved in, her father would clean her room and do her washing. Staff requested he not enter her room as it was not appropriate, so now MT will collect her washing and bring it back clean. The Staff believe that MT does not encourage her to be independent in her personal care and activities of daily living.
Medical treatment
The Staff have advised that KW continues to refuse to seek treatment for menorrhagia, which impacts on her living and hygiene requirements. She experiences heavy irregular periods which can last up to several months and then go several months with no bleeding. KW told me she has had menorrhagia since her son was born 20 years ago.[22]
[22] ts 16, 16 May 2023.
KW told me at the hearing in May 2024 that low iron can make it difficult for her to walk.[23] Low iron was also the reason why she was not able to attend her general practitioner (GP) to get updated referrals to see specialists we discussed at the first hearing of 5 March 2024 in relation to sleep apnoea and semaglutide medication for weight loss.[24]
[23] ts 30, 28 May 2024.
[24] ts 4 - 6, 28 May 2024.
KW did not attend the medical appointment, which was cancelled and booked multiple times, citing low iron and feeling unwell. As such, these matters had not progressed at all by the second hearing of 28 May 2024. One of the reasons that a second hearing was listed three months after the first hearing was to see whether KW could manage these important medical matters herself.
I am satisfied, and I find, that KW is currently incapable of looking after her own health and safety. She lacks independent living skills and does not leave her room without her father. She was unable to organise herself to attend an appointment to see a GP within three months.
(1)(c) Is KW unable to make reasonable judgments in respect of matters relating to her person?
The evidence from 2023 from the Healthcare Provider is that historically KW would not follow medical advice around taking prescribed medications and accessing regular health care. KW and MT were reported to have formed misguided opinions about diagnosis and treatment, which prevented KW from receiving the care she needs. The Staff advise that MT currently attends all appointments and speaks on KW's behalf. The Staff are unable to ascertain if this is a need or a choice.
KW told me that she would like to move out of the Accommodation and into a home with MT, and she did not see any risks or downsides to this arrangement.
I am satisfied, and I find, that KW is unable to make reasonable judgments in respect of matters relating to her person. She does not follow medical advice and defers to her father's view. She will not speak during appointments and relies on her father to speak for her. Most concerningly, if she was able to make her own decisions, she wants to resume the living arrangement that previously put her health at serious risk.
(1)(d) Is KW in need of oversight, care or control in the interests of her own health and safety?
In addition to KW staying in her room at the Accommodation unless her father is present or takes her out, she has also not engaged with her Delegated Guardian.
Due to the issues raised above in relation to her inability to look after herself and make decisions, I am satisfied, and I find, that KW needs continued supervision and oversight to protect her health and safety, particularly due to her continued social isolation.
(1)(e) Conclusion on capacity to make personal decisions
I am satisfied, and I find, that KW is a person for whom I can appoint a guardian.
(1)(f) When can an administrator be appointed? The test for incapacity
To appoint an administrator for KW, I must be satisfied that she is currently unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all or any part of her estate.
(1)(g) Does KW have a mental disability?
The definition of 'mental disability' in s 3 of the GA Act includes conditions such as an intellectual disability, a psychiatric condition, dementia, and acquired brain injury. This is a non-exhaustive definition.
The definition also includes the ordinary meaning of the term 'mental disability' which was explained in FY[2019] WASAT 118 as contemplating:[25]
… that a person's mind is affected by an impairment, incapacity or inability to function in a manner, or within a range, considered normal. A mental disability may manifest in a variety of ways, including as a disturbance or limitation in a person's thought processes or their cognitive ability, in their perceptions of reality, emotions or judgments, in disturbed behaviour or in learning difficulties.
…
… A finding that a person has a 'mental disability' may, of course, be referrable to the existence of one, or a combination of more than one, identified medical conditions. In other cases, the underlying cause of a person's mental disability may not be entirely clear, or susceptible to a particular medical diagnosis, but the existence of the mental disability may be beyond doubt.
[25] FY [2019] WASAT 118 (FY) at [27] and [32].
I find that the diagnosis of the folie à deux (a mental illness) and KW's corresponding decisions and behaviours are consistent with the description of 'mental disability' explained by the Full Tribunal in FY.
(1)(h) Does the mental disability cause KW to be unable to make reasonable judgments about her estate?
A person's 'estate' includes their real and personal property, all assets and liabilities, and all of their financial affairs. KW's estate is modest and consists of her income from Centrelink, her ongoing living expenses, such as rent for the Accommodation. She also has liabilities of $13,200, which the Public Trustee is managing with payment plans.
For the Tribunal to decide whether KW is 'unable' to make reasonable judgments about her estate, I must consider the extent to which KW is able to engage in the cognitive process required to make a 'reasonable judgment' and then compare that against KW's estate and circumstances.
The Staff report that KW gave her bank card to MT and she relies on him to make all her financial decisions. Dr M commented that many of KW's functional limitations may be explained by her lack of opportunity to make decisions, due to her dependence on MT. However, the evidence is clear that although she has the cognitive capacity to make her own financial decisions, she defers those decisions to her father, and she has likely done that her entire life.
KW asked me at the hearing how much her debts were, as she knew she had accumulated some savings. She wanted to spend her money on a further mobility aid, a gopher, rather than paying the debts. She told me that paying the debts 'will just take my opportunity away to [buy the gopher] by just paying these stupid debt things off".[26] Given that KW does not need a mobility aid, as she can walk unaided, her judgment regarding the priorities for using her savings is not reasonable.
[26] ts 29, 5 March 2024.
On the basis that KW has normal intelligence, I am satisfied, and I find, that the mental disability, which is due to the mental illness, is the cause of KW's inability to make reasonable judgments in respect of her estate.
(1)(i) Conclusion on capacity to make financial decisions
I am satisfied, and I find, that KW is a person for whom I can appoint an administrator.
Question 2 - Is there a need for orders or a less restrictive option?
There is no doubt that KW requires assistance to make decisions about her personal and financial matters. The question I need to answer at this stage is not whether she needs assistance, but whether she needs an administrator or a guardian to be appointed for that purpose.
I must bear in mind the need to adopt a less restrictive option if possible and I have considered KW's view that she does not want a guardian or an administrator.
I also bear in mind the comment made at the hearing of 5 March 2024 by professional Ms N, who knows KW's background and attended the first hearing in May 2023. In terms of the next steps for KW, Ms N said:[27]
… we can see how well she's doing ... but I don't think in my experience I've ever seen anybody that has received the amount of support that [KW] has. It's taken a lot of people … and the [Hospital A] Homeless Team really stuck their neck out to make sure that [KW] didn't fall through the cracks, and she was in a giant gaping crevasse when I first came across her … I'm very, very grateful to my colleagues, and to [KW] for her tenacity and hard work to get to where she is today.
And it's taken a hell of a lot of input from a lot of people and I think if we remove some of that before we've got to the finish line which is longterm housing in a Department of Housing property, and investigate absolutely every avenue … if we work harder towards that we may find something … that works.
(2)(a) Are informal arrangements sufficient?
[27] ts 6, 5 March 2024.
I am satisfied that informal decision-making is not a safe or realistic option for KW. MT would resume making decisions, like he has her entire life, that result in her complete dependence on him. Had the Healthcare Service not been so proactive in their intervention of KW in 2023, KW may still be bedbound, incontinent, and living in one room with MT.
KW requires someone to have the legal authority to, among other things, make an application to Centrelink for the DSP and pay for her ongoing expenses until she has learned the skills to do that for herself.
She also requires someone with the legal authority to make decisions and sign documents in relation to her accommodation and services and give consent to medical treatment and procedures. I am satisfied that informal arrangements are not sufficient for decisions to be made for KW in her best interests.
(2)(b) Is an enduring power of attorney/guardianship an option?
I am not satisfied that KW has the capacity to sign an enduring power of attorney or an enduring power of guardianship based on her inability to make reasonable judgments about her personal and financial matters. If she signed these documents, she would appoint her father and she is unable to understand that such a decision is not in her best interests.
(2)(c) Conclusion in relation to need
I am satisfied that there is no less restrictive way for the kinds of decisions that need to be made for KW can be made, which require legal authority, other than by the reappointment of an administrator and a guardian.
Question 3 - Who, what and how long?
(3)(a) Who should be KW's guardian?
When considering the appointment of a guardian, the Tribunal must hold the opinion that the proposed guardian will act in the best interests of KW, is suitable to act as the guardian, is not in a position where their interests conflict or may conflict with KW's interests and that the proposed guardian will be able to perform functions vested in them.
The Tribunal can only appoint the Public Advocate as guardian if there is no one willing or suitable to act. I am required to make findings about suitability on the basis that MT has proposed himself as KW's guardian. I find that MT is over the age of 18 years and has consented to act.
The Tribunal must be satisfied that the guardian will act in KW's best interests, particularly in the following ways:
(a)to encourage her to live in the general community and participate as much as possible in the life of the community;[28]
(b)to encourage and assist her to become capable of caring for herself and of making reasonable judgments in respect of her personal matters;[29] and
(c)in such a way as to protect her from neglect, abuse or exploitation.[30]
[28] GA Act, s 51(2)(b).
[29] GA Act, s 51(2)(c).
[30] GA Act, s 51(2)(d).
On the basis of the evidence before the Tribunal and set out in detail in these reasons, I am satisfied, and I find, that MT is unable to act in KW's best interests in the ways set out above and he is not suitable to act as her guardian on that basis. I find that the only option is to reappoint the Public Advocate as KW's guardian.
(3)(b) What functions should the guardian have?
Medical treatment
KW requires a medical treatment guardian to have the authority to give informed consent to medical treatment and procedures as MT continues to attend all appointments and speaks on KW's behalf. As MT has standing under s 110ZD of the GA Act to make medical treatment decisions as KW's father, it is in KW's best interests that it is clear to all health professionals that treat her:
(a)who has the authority to make medical treatment decisions; and
(b)the Tribunal has found that she lacks capacity in this domain, noting that she is intelligent, presents well and has discharged herself from hospital against medical advice in the past. Her consent to certain decisions has been accepted during the course of the current guardianship order.[31]
[31] Report of Delegated Guardian, dated 21 February 2024, page 4.
It is also necessary that one person, KW's guardian, has up-to-date knowledge of her complex psychiatric and physical health conditions to oversee KW's ongoing treatment and ensure that all relevant information is provided to her treating team. Various matters were discussed at the hearings that require ongoing investigation such as sleep apnoea, eligibility for semaglutide medication, bariatric surgery, fatty liver disease, fibroids, early periodontal disease, menorrhagia and low iron.
Services
The provision of appropriate services to KW is critical as she currently does not qualify for the NDIS. The physiotherapy review conducted at Hospital A concluded that while she had some gait abnormality, she could walk and easily move around, meaning she did not meet the criteria for the NDIS based on mobility. She also does not qualify because of a cognitive impairment or intellectual disability.
KW's relationship with her father has been labelled as 'enmeshed' and 'coercive and controlling', which implies that there is some level of conscious choice by KW's to be part of this relationship and that a referral to family violence services is the appropriate way to assist her. But this characterisation of KW's relationship with her father does not recognise:
(a)the lifelong conditioning and debilitating psychiatric illness that has completely incapacitated this otherwise normally functioning woman; or
(b)her abnormal susceptibility to control and influence by her father.
KW needs help to build her capacity, increase her independence and participate in social and economic life. The evidence demonstrates that she has the capacity to live successfully as a fully functioning adult. She has the intelligence to find employment or pursue further education one day, but she needs significant support to transition to a new stage of her life, if that is possible.
I am satisfied that KW needs her guardian to have the authority to engage appropriate services to address her rare and devastating disability.
Accommodation
KW requires a guardian to have the authority to make decisions about accommodation. KW has been living in temporary accommodation for 10 months since she was discharged from Hospital A after a five-month hospitalisation.
She is currently not eligible for any type of funded accommodation through the NDIS. She remains on a low Centrelink payment as she does not qualify for DSP, which limits her options.
She is on the Department of Housing waitlist, which is extensive, but she is currently unable to live independently in any event. This may change in the future with the right support and assistance in place.
The eligibility for any NDIS funding will affect the type of accommodation KW can consider, so the services and accommodation functions are closely linked. KW needs her guardian to have the authority to navigate her accommodation options.
Conclusion
I am satisfied that the Public Advocate must have the authority to make decisions about KW's medical treatment, accommodation and services.
I have considered whether further functions should be added to determine who KW should have contact with and the extent of that contact. At the hearing in 2023, KW said that all decisions had:[32]
… to run through my Dad first. I don't do anything without my Dad … I have major anxiety without my father, and I can't take it any more. I need my dad beside me, no matter what, and when people are trying to rip us, one way or another, I don't even know whether they want to knock my dad off or not, …
[32] ts 29, 16 May 2023.
It may be necessary at some point, if KW's ability to care for herself continues to be diminished by having contact with MT, that steps be taken to limit her contact with MT or prevent it entirely.
As I have set the review period for two years, the need for any other functions can be assessed at the time of the review, or if an earlier review is sought.
(3)(c) Who should be KW's administrator?
When considering the appointment of an administrator, the Tribunal must hold the opinion that the administrator will act in the best interests of KW, is suitable to act as the administrator of her estate and will be able to perform the functions vested in them.
MT has proposed himself for consideration. I find that MT is over the age of 18 years and has consented to act as the administrator. The Trust Manager's view is that while the relationship between KW and her father appears to be co-dependent, there is no financial abuse. The Trust Manager observed that the finances of MT and KW were joined and together they financed their lifestyle.
Although there may be no financial exploitation, I find that MT is unsuitable to act as KW's administrator because I am not satisfied he is able to act in KW's best interests or perform the functions proposed to be vested in the administrator.
In terms of best interests, the Tribunal must be satisfied that the administrator will act in the same ways as a guardian in terms of encouraging KW to live and participate in the general community, encouraging her to become independent, and to protect her from neglect, abuse or exploitation.[33] I am satisfied that MT is unable to act in KW's best interests in relation to financial matters as I find that he will continue to foster her dependence on him and retain control of her finances.
[33] GA Act, s 70(2)(b), (c) and (d).
Even if that control is not 'financial abuse' in terms of exploitation, it is abusive if MT continues to use his power over KW to prevent her from learning to manage her own finances and gaining independence. There is clear evidence before the Tribunal as to her intellectual abilities that demonstrates that her dependence on him in not necessary; it is pathological as she has been conditioned to be dependent on her father.
In relation to performing the functions vested in the administrator, MT told me he has challenged the debt owing to the Department. He wants to negotiate and mediate, but he did not know what kind of advocacy he needs, or where he could find someone to assist him. He asked me numerous times if I knew who could help him. Even if there was scope to negotiate this debt, it has existed for eight years and MT has taken no action in that time. I am satisfied that MT does not have the skills to manage the more complex aspects of KW's estate.
I am satisfied that the only option open to the Tribunal is to reappoint the Public Trustee.
(3)(d) What should the administrator's powers be?
I am satisfied that it is appropriate that the administration order be a plenary order, which will allow the administrator to deal with all aspects of KW's estate in her best interests.
I am satisfied on the evidence provided by the Public Trustee and the Staff that KW is unable to make decisions about simple or complex financial matters, and she delegates all decisions to MT.
I will include a gifting authority of $500 per year so the administrator can purchase gifts on KW's behalf. The Trust Manager advised that KW used her full allocation of gifting for Christmas in the past.
(3)(e) How long should the orders run before review?
When making orders, the Tribunal is required to fix a period for the review of the order, the maximum period of time allowed being five years. Dr M's assessment supports the existence of underlying psychological factors that impact on her reduced functional abilities. Dr M asserts that:[34]
[KW] has the cognitive capacity and motivation to benefit from intensive psychotherapy, which would presumably increase her functional level. We also can't exclude the reality that she has been homeless and so without stable accommodation, many of the assessed functional skills can't be demonstrated. Unstable housing is also a significant stressor and so compounds her psychological difficulties.
[34] Dr M report dated 29 August 2023, page 7.
Given the nature of KW's complex situation, I have decided to make the order reviewable in two years so the Tribunal can examine whether there has been any benefit or improvement in KW's functional abilities as a result of having stable accommodation and access to services. If KW meets the criteria for an NDIS plan, there will have been the opportunity for a 12 month plan to run and be reviewed by the NDIS. The Tribunal can then decide on the evidence available in 2026 whether KW continues to need substitute decision-makers.
For the above reasons, the Tribunal makes the following orders.
Orders
The Tribunal declares that the represented person, [KW] is:
(a)unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all of her estate;
(b)in need of an administrator of her estate;
(c)incapable of looking after her own health and safety;
(d)unable to make reasonable judgments in respect of matters relating to her person;
(e)in need of oversight, care or control in the interests of her own health and safety; and
(f)in need of a guardian.
The Tribunal orders:
Administration
The administration order dated 16 May 2023 is amended so that it now reads:
1.The Public Trustee of 553 Hay Street, Perth, Western Australia is appointed plenary administrator of the represented person's estate with all the powers and duties conferred by the Guardianship and Administration Act 1990 (WA).
2.The administrator is authorised to expend up to a total amount of $500 per annum on gifts on behalf of the represented person.
3.The administration order is to be reviewed by 7 August 2026.
Guardianship
The guardianship order dated 16 May 2023 is amended so that it now reads:
4.The Public Advocate of David Malcolm Justice Centre, Level 23, 28 Barrack Street, Perth, Western Australia is appointed limited guardian of the represented person with the following functions:
(a)to decide where the represented person is to live, whether permanently or temporarily;
(b)to decide with whom the represented person is to live;
(c)to make treatment decisions for the represented person, subject to Division 3 of Part 5 of the Guardianship and Administration Act 1990 (WA); and
(d)to determine the services to which the represented person should have access.
5.The Tribunal approves delegation by the Public Advocate of her functions as guardian of the represented person to an officer or employee employed in the Office of the Public Advocate.
6.The guardianship order is to be reviewed by 7 August 2026.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS R BUNNEY, MEMBER
10 SEPTEMBER 2024
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