LS
[2018] WASAT 64
•20 JULY 2018
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: LS [2018] WASAT 64
MEMBER: DEPUTY PRESIDENT, JUDGE SHARP
MS N OWEN-CONWAY (MEMBER)
MR M HARFORD (SENIOR SESSIONAL MEMBER)
HEARD: 18 MAY 2018
DELIVERED : 20 JULY 2018
FILE NO/S: GAA 790 of 2018
BETWEEN: LS
Represented Person
Catchwords:
Guardianship - Evidence of capability or incapability - Expert evidence of capability - Cogency and reliability of evidence generally - Turns on own facts
Legislation:
Guardianship and Administration Act 1990 (WA), s 4, s 17A, s 43, s 64, s 68(2)(a), s 74, s 86
Rules of the Supreme Court 1971 (WA), O 70
State Administrative Tribunal Act 2004 (WA), s 27, s 29
Result:
Upon review, revocation of orders appointing a guardian
Representation:
Counsel:
| Represented Person | : | N/A |
Solicitors:
| Represented Person | : | N/A |
Case(s) referred to in decision(s):
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Application
On 6 March 2018, CM, the mother of the represented person, (LS) and AR (LS's fitness service provider) made an application to the Tribunal pursuant to s 17A of the Guardianship and Administration Act 1990 (WA) (GA Act) for a review of orders 5 and 6 made by a member of the Tribunal on 6 February 2018. On that day, the Tribunal ordered the appointment of the Office of the Public Advocate (Public Advocate) as the limited guardian of LS. In appointing the Public Advocate the limited guardian of LS, the Tribunal revoked an earlier order appointing CM as LS's limited guardian.
The hearing review pursuant to s 17A of the GA Act
The hearing of the review of the orders 5 and 6 made on 6 February 2018 pursuant to s 17A of the GA Act was conducted on 18 May 2018 by the Full Tribunal constituted by Deputy President, Sharp DCJ, Senior Sessional Member Mr Harford and Member Ms Owen-Conway. The following attended at the hearing:
(a)LS;
(b)CM, LS's current limited administrator;
(c)AR;
(d)JH, Senior Guardian of the Public Advocate;
(e)ST of Facilitatrix, service provider co-ordinator;
(f)AMJT, LS's brother;
(g)BTM, LS's brother;
(h)LO, Senior Trust Manager of Perpetual Trustees Company Limited, (Perpetual) limited administrator and Trustee of a Trust for the benefit of LS; and
(i)Mr M, Trust Manager, Perpetual Trustees Company Limited.
At the conclusion of the hearing the Tribunal made its decision and made the orders referred to below. Given the volume of material filed in the proceeding, the Tribunal informed the parties that it would provide its reasons in writing. These are those reasons.
Background facts of LS
LS is currently 19 years old, having been born on 19 October 1988. On 3 August 2008, when he was 9 years old, LS suffered an acquired brain injury as a result of being involved in a motor vehicle accident (accident). Proceedings to recover loss and damage arising from the accident were commenced in the District Court of Western Australia (District Court) by CM as LS's next friend under Rules of the Supreme Court 1971 (WA) (RSC) Order 70. By order of the DistrictCourt dated 28 February 2014, CM was granted leave to compromise LS's claim against the defendant in District Court proceedings No 2964 of 2012 for the sum of $7 million plus an additional amount of $1,268,813 being the costs of the fees of a trustee to be appointed in respect of a trust of the judgment sum. Judgment in the sum of $8,268,813 was entered and the defendant in those proceedings was directed to pay to Perpetual the balance of the judgment sum after payments were made as directed in the order, for such sum to be held on trust and 'to be invested or applied for the benefit of the Plaintiff'. Order 4 of the District Court provides that:
Whilst the trust is in operation [Perpetual is] empowered at its discretion to apply, from time to time, the whole or any part of the income of the trust fund and, if considered necessary the capital thereof, for the maintenance, welfare and advancement of the Plaintiff, or otherwise for the benefit of the Plaintiff.
LS was 15 years old and a minor at the time the District Court proceedings were resolved by the Court approved compromise.
History of proceedings in the Tribunal
On 28 March 2014, Perpetual made an application to the Tribunal pursuant to s 64 of the GA Act for an order appointing itself as a limited administrator to make certain specific decisions concerning contributions to be made to LS's superannuation fund from the Trust assets. That application was accompanied by a statement by CM made for the purposes of s 68(2)(a) of the GA Act, requesting the appointment of Perpetual as the limited administrator for LS's estate to make the specified decisions identified above. The application was also accompanied by a brief report by LS's general practitioner (Dr O) dated 31 March 2014, concerning LS's cognitive impairment relevant to establishing LS's mental disability by reason of his acquired brain injury and the resultant inability to make reasonable judgments concerning his estate. On 19 May 2014, the Tribunal member made orders as sought and ordered a review by 19 May 2019.
It should be noted at this point that LS's estate comprised his equitable and statutory rights to the Trust assets and any other legal or equitable rights he had or may have against Perpetual as the Trustee concerning the management of the Trust and the Trust assets. LS's estate also included various rights of action and claims, such as claims for statutory welfare benefits and the like. Such rights are not vested in Perpetual as the Trustee of the Trust nor is LS's income or future acquired assets, in so far as they are derived outside the Trust.
On 6 October 2016 when LS was 17 but would shortly be 18, CM made an application to the Tribunal pursuant to s 43 of the GA Act for the appointment of a guardian for LS. CM proposed herself and AMJT as joint guardians. CM stated that LS's neuropsychologist recommended that she apply for an order appointing a guardian for LS as he was soon to reach 18 years of age (ts 9, 18 May 2018). The application, in summary, contended that LS was not able to make reasonable judgments about his person and health and welfare needs; that he had difficulty with language, memory, attention, spatial functioning and executive and academic functioning; he was predominantly non-verbal and required significant time and assistance to comprehend basic tasks.
On 24 October 2016 CM also made an application pursuant to s 86 of the GA Act for a review of the administration order made by the Tribunal on 19 May 2014. CM sought an order that she and AMJT be appointed the plenary administrators of that part of LS's estate that was not within the scope of Perpetual's function as limited administrator.
CM's applications were supported by medical evidence provided by Dr W, Paediatrician, dated 21 September 2016; a neuropsychological assessment report by Dr P, Clinical Psychologist and Neuropsychologist, dated 19 February 2014; a short medical report by Dr P dated 1 October 2016; and a further neuropsychological assessment report by Dr P dated 22 December 2016, following Dr P's assessment of LS on 19 November 2016 when LS was 18 years and one month old.
The Tribunal notes that in the course of CM's 2016 applications proceeding to a hearing, LO, then a Trust Manager with Perpetual, wrote to the Tribunal on 28 November 2016 noting that LS had undergone a further neuropsychological assessment by Dr P on 19 November 2016 and stated '[h]er up-to-date assessment results would be relevant to the matter of Guardianship'. Although notified of the proceedings, there was no appearance by or on behalf of Perpetual at the hearing for the 2016 applications. No challenge or objection was raised by Perpetual to the appointment of CM alone or jointly as the guardian for LS or as the administrator of the residual of his estate.
On 16 January 2017 following a hearing, the Tribunal ordered that CM be appointed the plenary administrator of the estate of LS save and except for that part of LS's estate in respect of which Perpetual was appointed limited administrator pursuant to the order of the Tribunal made on 19 May 2014. The Tribunal also appointed CM as the limited guardian of LS to make decisions concerning where and with whom LS should live; whether he should work and if so for whom; the services to which he should have access and what education and training he should receive. The Tribunal ordered that both the administration and guardianship orders should be reviewed by 16 January 2022.
On 2 August 2017, LO, now a Senior Trust Manager, on behalf of Perpetual made an application to the Tribunal pursuant to s 74 of the GA Act. Section 74 of the GA Act permits an administrator, appointed under the GA Act, to seek directions from the Tribunal. The application was expanded upon by LO's email to the Tribunal on 3 August 2017 asserting that Perpetual 'is concerned about the breakdown in the relationship between Perpetual, [LS], and his mother … who is [LS's] Guardian and Plenary Administrator'. In that email LO stated that Perpetual was concerned that Perpetual staff had been 'prevented' from meeting with LS since early 2016; unable to ascertain LS's needs; unable to make decisions about appropriate assistance for LS; and unable to attend to maintenance and repairs on the property purchased for LS's benefit. LO concluded that 'Perpetual is also concerned about the escalating level of distress that [LS] is demonstrating in his brief phone call interactions with Perpetual staff, and further concerned that [LS] is being misinformed by [CM] in regards to the role of the Trustee and our obligations to assist [LS]'.
The s 74 application by Perpetual was soon followed by an application by CM for review of Perpetual's role, purportedly pursuant to s 86 of the GA Act. The application by CM referred to a series of complaints about Perpetual in its role as Trustee of the Trust and its failure to undertake repairs and maintenance of the property purchased as Trustee for LS's benefit in which he lived with his family, including CM. The application attaches a building inspection report dated 6 June 2017 concerning repairs required to that property along with a letter dated 28 July 2017 from CM's then solicitor to Perpetual informing the latter that CM intended to make application to remove Perpetual as Trustee of the Trust and to replace Perpetual with Australian Executor Trustees Limited. There was no complaint about or order sought concerning Perpetual in undertaking its function as limited administrator pursuant to the Tribunal orders made on 19 May 2014 and 16 January 2017.
Although Perpetual's application on 2 August 2017 was made pursuant to s 74, upon receipt of LO's email of 3 August 2017, it was clear that, in substance, Perpetual's application was for review of the orders made appointing CM as LS's guardian on 16 January 2017 pursuant to s 86 of the GA Act. CM's application, purportedly pursuant to s 86 of the GA Act, was not accepted by the Tribunal, as it sought orders that are not within the Tribunal's jurisdiction. It was, instead, treated as CM's response to Perpetual's application dated 2 August 2017.
Perpetual's application dated 2 August 2017 was heard on 2 October 2017 and the Tribunal revoked the order made on 16 January 2017 appointing CM as LS's limited guardian and in its place ordered, relevantly, that:
(a)CM be appointed the limited guardian for LS with decisionmaking power and functions concerning LP's treatment decisions; whether LS should undertake any work and if so with whom and whether and what training or education LS should receive; and
(b)the Public Advocate be appointed the limited guardian for LS with the decisionmaking power and functions concerning where LS should live and with whom he should live and the services to which LS should have access.
The Tribunal made the usual order permitting the Public Advocate to delegate the conferred power and functions to its officer or employee. The Tribunal ordered a review by 31 January 2018.
Following a hearing on 6 February 2018 the order made on 2 October 2018 was reviewed by the Tribunal. At the conclusion of the hearing on 6 February 2018, the Tribunal revoked the orders made on 2 October 2017 appointing CM and the Public Advocate as the limited guardians and instead made an order appointing the Public Advocate as the limited guardian for LS with the decisionmaking power and functions concerning where LS should live; with whom he should live and the services to which LS should have access. There was no guardian appointed for any other function.
It is this order that is the subject of the request for a review pursuant to s 17A of the GA Act (the reviewable decision), made by CM and AR as applicants on 6 March 2018 and heard on 18 May 2018.
The orders sought by the applicants on this review
CM and AR sought the revocation of the order appointing the Public Advocate as the limited guardian on 6 February 2018 and further, sought an order appointing CM and AMJT as the limited guardians of LS to make decisions concerning where and with whom LS should live; whether he should work and if so for whom; the services to which he should have access and what education and training he should receive. During the course of the hearing both CM and AR asserted that in their respective views there should be no order for the appointment of a guardian at all, but that if the Tribunal was persuaded to appoint a guardian, it should be CM and AMJT. This coincided with LS's wishes and views.
The Tribunal's jurisdiction
Section 17A of the GA Act provides that 'a party who is aggrieved' by a 'determination', (defined to include the making of an order appointing a guardian pursuant to s 43 the GA Act) may request the President 'to arrange for a Full Tribunal to review the determination'. This proceeding is a review by the Full Tribunal that falls within the Tribunal's review jurisdiction, as provided for by the StateAdministrative Tribunal Act 2004 (WA) (SAT Act). It is a hearing de novo and parties may produce additional evidence and information to be considered (s 27 of the SAT Act). The Tribunal may affirm or vary the decision under review or it may set the same aside and substitute its own decision or refer the matter to the original decisionmaker with directions as provided for by s 29 of the SAT Act.
The documents before the Tribunal
All of the documents that have been filed by all parties and all medical reports that have been before the Tribunal for the various hearings were before the Tribunal when this matter was heard on 18 May 2018.
The documents are as follows:
(a)District Court order for leave to compromise dated 28 February 2014 in matter number 2964 of 2012;
(b)Perpetual medical report completed by Dr O dated 31 April 2014;
(c)letter to Tribunal signed by CM dated 1 May 2014;
(d)short medical report by Dr W, Paediatric Neurologist, dated 21 September 2016;
(e)report by Dr P, dated 19 September 2014;
(f)short medical report by Dr P dated 1 October 2016;
(g)Primary Carer and Social Worker Guide completed by AC dated 21 October 2016;
(h)Primary Carer and Social Worker Guide completed by CM dated 4 October 2016;
(i)Public Trustee of Western Australia (Public Trustee) audit of Perpetual's accounts as limited administrator for the period 1 July 2015 to 30 June 2016, together with a summary of the accounts for that period;
(j)report by Dr P date 22 December 2016;
(k)short medical report by Dr P dated 29 December 2016;
(l)Public Trustee audit of Perpetual's accounts as limited administrator for the period 1 July 2016 to 30 June 2017, together with a summary of the accounts for that period;
(m)Public Trustee audit of CM's accounts as limited administrator for the period 16 January 2017 to 30 June 2017, together with a summary of the accounts for that period;
(n)report by the Public Advocate investigator advocate dated 27 September 2017;
(o)The Public Trustee letter to the Tribunal notifying of its intention to exempt CM from further audit and reporting requirements dated 12 December 2017;
(p)short medical report by Dr O dated 3 January 2018 with the following attachments:
(i)letter from Driver Trained Occupational Therapist dated 14 November 2017;
(ii)report by Driver Trained Occupational Therapist concerning assessment on 13 October 2017;
(iii)Driver Trained Occupational Therapist recommendations/modifications;
(iv)Independent Living Centre WA Occupational Therapy Driver Assessment;
(v)letter from Dr W to Dr O dated 15 February 2017;
(vi)letter from Dr W to Dr O dated 17 August 2016;
(vii)letter from Dr W to Dr O dated 3 February 2016; and
(viii)report by JH dated 18 January 2018.
(q)Occupational Therapy report by MH, dated 13 January 2018 for the period 27 October 2017 to 13 January 2018;
(r)short report by Dr P dated 2 February 2018;
(s)report by Dr P dated 12 December 2018;
(t)letter from LO to Tribunal dated 28 November 2016;
(u)letter from LO to Tribunal dated 3 August 2017 to Tribunal;
(v)Building and Home Consulting and Inspection Service Report dated 16 June 2017 concerning LS's home;
(w)letter from the solicitors for CM as LS's limited administrator and guardian to Perpetual dated 28 July 2017;
(x)CM's purported application received 8 August 2017 treated as a submission;
(y)email from GM, State Manager of Perpetual to CM dated 28 September 2017 in response to CM's email to Perpetual dated 25 September 2017;
(z)email submission from CM to the Tribunal dated 16 January 2018 attaching:
(i)email from CM to Mr M of Perpetual dated 22 November 2016;
(ii)email from Anderson Neurological and Development Services to CM with attached account statement and tax invoices 1081, 585, 851, 903 and 1004 concerning LS; tax invoices 6016, 5912 and 5785 from PhysioConcept Pty Ltd concerning LS and tax invoice 4234 from Psychological and Educational Consultancy Services concerning LS;
(iii)tax invoice 543 from Dr P dated 18 December 2017 in the sum of $2,000 concerning the assessment of LS on 7 December 2017;
(iv)invoice 5655 from Fremantle Speech Pathology Service;
(v)Dr P's report dated 12 December 2017;
(vi)series of emails concerning the Public Advocate's request to Dr P's office to release reports; and
(vii)undated submission by CM.
On the s 17A GA Act review, the following documents were filed:
1)Service Provider report by VB, of Explorability Inc. dated 4 May 2018;
2)report by JH of the Public Advocate dated 18 May 2018, delivered under the cover of an email dated 10 May 2018;
3)ST's Private and Confidential Report to the Tribunal Chronology of Events concerning LS dated 11 May 2018 filed by ST;
4)ST's Private and Confidential Report to the Tribunal concerning LS dated 11 May 2018 filed by ST, to be read in conjunction with the Chronology referred to immediately above;
5)copy of letter from ST to CM dated 16 April 2018;
6)letter of reference concerning CM from:
(a)JS, Melville Aquatic Fitness Centre dated 9 April 2018;
(b)Ms T undated;
(c)JJ dated 3 April 2018; and
(d)MR dated 7 April 2018.
7)letter from Dr O dated 9 April 2018;
8)handwritten annotations to copy email from ST to CM dated 13 February 2018;
9)letter from Dr O dated 18 January 2018;
10)copy front page of affidavit of Mr M filed in the District Court on 11 February 2014;
11)note from LS to the Tribunal dated 9 April 2018;
12)note from CM to the Tribunal dated 9 April 2018;
13)email from ST to CM dated 7 February 2018 at 11.05 am;
14)part document from South Metropolitan TAFE;
15)letter from LO to the Tribunal dated 20 April 2018;
16)series of emails from VB to CM on 21 February 2018, email from CM to VB dated 20 February 2018 and email to the Tribunal by VB dated 27 April 2018;
17)series of emails between VB and LS dated 22 and 23 April 2018; and
18)series of emails between LS and VB and CM between 24 and 27 April 2018.
The Tribunal notes that ST's report to the Tribunal dated 11 May 2018 contains a reservation or warning to the Tribunal that it should 'give careful consideration to sharing these documents with [CM]'. The Tribunal's officer requested that ST inform the Tribunal whether the documents were to be put before the Tribunal, in which case they would be available to all parties including CM, or whether they were to be withdrawn and not put before the Tribunal. By an email to the Tribunal dated 16 May 2018, ST requested that the documents be placed before the Tribunal. Accordingly, the report and chronology all dated 11 May 2018 were made available to all parties including CM.
The hearing and the position of the parties
There was no application made to disturb the orders appointing CM and Perpetual as limited administrators as originally ordered on 16 January 2017. At the hearing on 18 May 2018, there was agreement that those orders were not the subject of any review and that they were to continue undisturbed. Therefore the orders to be reviewed were identified and limited to those numbered 5 and 6 made on 6 February 2018 concerning the appointment of the Public Advocate as LS's limited guardian.
Although CM and AR sought an order appointing CM and AMJT as limited guardians for LS, the issues before the Tribunal included whether a guardian could and should be appointed at all.
The positions of the parties who attended are summarised as follows:
(a)LS initially asserted that the guardian should be his mother CM. Subsequently, LS asserted that he did not require a guardian at all and could make the decisions he needed to make in his life (ts 51, 18 May 2018).
(b)CM and AR agreed with LS (ts 53, 18 May 2018 (CM) and ts 52, 18 May 2018 (AR)). AMJT and BTM agreed with this position.
(c)ST of Facilitatrix asserted that the Tribunal should make a plenary guardianship order for three months and appoint the Public Advocate as guardian (ts 42, 18 May 2018).
(d)JH asserted that the Public Advocate should be appointed guardian to make decisions concerning where and with whom LS should live, treatment decisions and to determine the services to which LS should have access (Public Advocate Report dated 18 May 2018) for a period of a year (ts 42, 18 May 2018). During the hearing JH also stated (ts 25, 18 May 2018) '[w]e're also seeking the tribunal consider directions for [CM] to engage with the guardian[.]' This was not a live issue as the Tribunal has no power to make such a direction.
(e)The representatives of Perpetual asserted that the Public Advocate should be appointed guardian 'to assist us performing our role' (ts 43, 18 May 2018).
In particular, the representatives of Perpetual asserted that the lack of a guardian left LS subject to CM's influences, which they considered were not in LS's best interests. There was no real particularisation of that allegation but only references to 'evidence' of incidents that each Perpetual representative considered to be an example of CM's undue influence over LS. LO's letter to the Tribunal dated 5 February 2018, which constituted a list of allegations, culminating in Perpetual's assertion that it was experiencing difficulties in performing its obligations as Trustee 'due to the problematic relationship with [LS's] mother, [CM]', was relied upon by Perpetual to support its contention that an independent guardian should be appointed for LS.
In summary, Perpetual alleges, in support of the appointment of the Public Advocate as limited guardian for LS:
(a)Perpetual representatives were not able to meet with LS.
(b)Perpetual representatives were unable to work 'collaboratively' with LS 'to ensure his compensation funds are used most appropriately for his needs and towards his stated goals and in his best interests'.
(c)Perpetual representatives lacked access to information from health professionals regarding LS's 'current needs for intervention/treatment to maximise his function and independence'.
(d)Perpetual representatives had not been able to gain access to the 'trust-owned property … to undertake maintenance and compliance activities'.
(e)CM's repeated failure to explain and account for the disposal of the Toyota Prius vehicle purchased by the 'Trust' for LS's needs.
(f)CM's 'frequent incurring of costs without prior approval from Trust, which is not in line with operational procedure, as explained to CM on numerous occasions'.
(g)CM's 'repeated requests for the Trust to transfer funds to her for reimbursement of costs allegedly incurred by her on [LS's] behalf without presentation of receipts in relation to same'.
(h)CM's lack of compliance in the operation of Essential Care Solutions Pty Ltd (ECS Pty Ltd) and the supply of support workers for LS, which company was operated by CM resulting in Perpetual terminating a service agreement it had entered into with ECS Pty Ltd.
(i)CM's actions had resulted in duplication of services on numerous occasions which 'generated additional costs to the Trust'.
(j)Moving LS into rental accommodation 'stating inaccurately to third parties that the Trust property was uninhabitable, generated, unnecessary additional cost to the Trust' (sic).
(k)Misinforming LS 'in regards to the role of the Trustee and our obligations to assist [LS]'.
The evidence and consideration by the Tribunal
The above allegations constitute the Tribunal's summary of the allegations made in LO's letters to the Tribunal of 3 August 2017, 5 February 2018 and 20 April 2018 referred to above.
Perpetual did not advance any direct evidence before the Tribunal of any of the matters referred to in paragraphs (a), (b), (d), (f), (g), (h), (i) or (k) above. As to (e) there was no evidence or information before the Tribunal.
As to the matters referred to in (g) and (h) above, it is agreed by all at the hearing that the service agreement between ECS Pty Ltd (controlled by CM) and Perpetual had been terminated by Perpetual and LS's regular support service costs now appear to be paid for by Perpetual on an invoice by invoice basis rather than by Perpetual paying an allowance to ECS Pty Ltd, which had in the past paid various support providers as and when their services were provided to LS out of that allowance. Although LO has provided her summary of the service agreement, Perpetual's entitlement to terminate the service agreement as of right and her assertion that Perpetual did in fact terminate the service agreement 'largely based on ECS's failure to carry out the abovementioned' (letter 20 April 2017), no documentary evidence or other evidence or information was put to the Tribunal about these matters. Without a complete copy of the service agreement and reliable and cogent evidence of the alleged failures of CM in her control of ECS Pty Ltd, the Tribunal is unable to determine the allegation advanced by Perpetual in (h) above.
As to paragraph (d) and (j), the Tribunal notes that CM had produced a building inspection report as at 6 June 2017, concerning the property and alleged defective remediation and repair work that required further repairs, such as leaks. As to paragraph (k), the Tribunal notes that CM had produced a letter from her solicitors concerning the proposed replacement of Perpetual as the Trustee of the Trust (28 July 2017) and it is implicit that she had taken some advice on the matter. These documents and the implication arising therefrom persuade the Tribunal that there was at least some basis for CM's concerns with Perpetual's role as Trustee of the Trust and intended actions. As the limited administrator for, in effect, the residual of LS's estate the exercise of LS's rights and entitlements under statute; pursuant to the District Court order granting liberty to apply or any other rights in law or equity, are matters within CM's power and function to consider, take advice on and, if necessary, take action. Whether or not CM's concerns are justified in law and fact is not for the Tribunal to consider as it has neither the jurisdiction nor the evidential basis to consider the same. The Tribunal notes however, that CM had at least taken some relevant expert advice on the matters that Perpetual say CM was misinforming LS about or otherwise evidenced her failure to act in LS's best interests (CM had obtained a building inspection report and engaged solicitors). In taking some relevant advice, the Tribunal is not persuaded that CM was acting improperly with respect to articulating to Perpetual her concerns that the Trustee should be replaced or that the property was not being properly managed by Perpetual. In any event, the exercise or the refraining from exercising or taking advice on the statutory, legal and equitable rights that LS has as a beneficiary of a Trust, including the issue of replacing Perpetual as Trustee, are matters within CM's power and functions as a limited administrator not as guardian. No challenge has been made by Perpetual to the orders appointing CM as a limited administrator. The Tribunal notes that Perpetual sought the administration orders continue undisturbed.
As to the relationship between representatives of Perpetual and LS and CM, the Tribunal notes that GM's response dated 28 September 2017 to an email from CM concerning matters referred to in (d), (f), (j) and (k), identifies significant confusion between CM and Perpetual representatives concerning a range of matters including the costs required for or by LS; reimbursement of various costs incurred by CM for LS; whether those costs have or have not been previously approved by Perpetual or required approval; LS's allowance; purchasing a car for LS and the need for LS's family to rent alternative accommodation while the acknowledged repairs and maintenance to LS's home was carried out by contractors at Perpetual's direction and at the cost of the Trust. There is also reference to the role of ECS Pty Ltd and Perpetual's need for an account of the monies paid to ECS Pty Ltd by Perpetual.
What is apparent from this correspondence is that the distribution of the Trust assets and income to and for LS's benefit by Perpetual through communication with CM as LS's guardian, has not proceeded smoothly and has caused LS distress and also distress to CM, which of itself has distressed LS further. As to the relationship between representatives of Perpetual and LS, there is a reference by CM in her response (the application filed 8 August 2017 treated as a response to Perpetual's application dated 2 August 2017) to a telephone conversation between Mr GM of Perpetual and LS, which CM says she overheard because Mr GM was 'yelling' at LS about the possible application for the replacement of Perpetual by another corporate trustee. CM also states that she observed LS hang up on Mr GM. The call was made by LS following CM informing him that an unannounced attendance on CM at LS's home was made by Perpetual representatives, resulting in CM being delayed in collecting LS from TAFE.
The documents are suggestive of significant disharmony in the distribution of LS's judgment sum for his benefit but the documents taken as a whole do not persuade the Tribunal of the conclusion for which Perpetual contends.
The documents filed by Facilitatrix report of similar heated telephone communications between LS and either representatives of Facilitatrix or Perpetual and which Mr M put to the Tribunal, evidenced CM taking LS's mobile phone and hanging up the call with a Perpetual representative. Mr M did not state to the Tribunal that he witnessed this event in any way. No witnesses to these events were called by Perpetual nor did any witnesses of any of the events provide statements to the Tribunal (apart from CM). No crossexamination of any witnesses to these events could take place. Significantly, there was no direct evidence of the events referred to in the Facilitatrix documents, relied upon by Perpetual as evidence of the need for an independent guardian to be appointed for LS. The miscommunication evident in the email of 28 September 2017 between Mr GM and CM appears to have become a hallmark of the relationship between Perpetual and LS as well as CM, as it developed up to the time of the Tribunal hearing on 18 May 2017. Although Perpetual put to the Tribunal that representatives of Perpetual had difficulty with CM at all times and before she was appointed a guardian by the Tribunal on 16 January 2017 (see Mr M / LO ts 43 46, 18 May 2018), there is no objective evidence of that fact and to the contrary that Perpetual made no objection or challenge to the appointment of CM as guardian or administrator in January 2017.
There is no evidence before the Tribunal that Perpetual representatives could not meet with LS as alleged in paragraph (a) above or could not work 'collaboratively' with LS as alleged in (b) above because of the conduct of CM. There were in fact meetings between JH, representatives of Perpetual and Facilitatrix at LS's home that were unannounced, unscheduled and surprised LS and his family, although such circumstances are not consistent with an attempt to engage collaboratively with LS. There were meetings with LS and CM at Perpetual's office and there were email and telephone communications between both Perpetual representatives and LS as well as with CM and LS. LS gave evidence (ts 35, 18 May 2018) that JH had met with LS at his home (on an unannounced visit) during which CM absented herself from the conversation (see also: CM's email to VB dated 24 April 2017). The Tribunal notes that JH considered it central to the Public Advocate's function that he meet with LS for Perpetual to be able to carry out its functions as Trustee of the Trust. The Tribunal is not persuaded on the evidence and information before it, that the representatives of Perpetual were prevented by CM from having access to or collaborating with LS in any way. The information produced to the Tribunal does suggest that the communications between the representatives of Perpetual and LS were overshadowed by conflict between Perpetual and CM concerning payments of costs and various repairs required to the property in which LS lives with his family and also between Perpetual and LS regarding his allowance, attending TAFE and attending at his home unannounced and the unhappiness caused, as he sees it, to his mother and therefore to him and other members of his household. The Tribunal does not conclude on the evidence and information before it that this was caused solely by the conduct of CM.
There is evidence that CM did refuse to deal with ST (letter dated 16 April 2016 by ST to CM) and there is evidence that either CM or LS or both wished to inspect VB's report to the Tribunal before it was provided to the Tribunal (emails from VB). However, the roles and authority of ST and VB, on whose instructions they acted and for what purpose is not clear to the Tribunal. Particularly, their demands of CM and the basis on which they made the same is not clear. CM's reluctance to speak with ST, in the absence of any information as to the basis on which ST communicated with CM, is not of itself supportive of Perpetual's contentions. The position of LS and CM in relation to VB's report in all the circumstances does not appear to be unreasonable.
The Tribunal notes at this point that the unfettered flow of email information directly from service providers to the Tribunal has caused considerable difficulty for the Tribunal in ascertaining the facts surrounding the relationship of the providers with LS and CM. It has also had the effect of excluding LS and CM from being able to see what is said about them. For example, the role of VB is unclear and as the Public Advocate was the guardian for the purposes of ascertaining the services to which LS should have access, the email information from VB (save for the service provider's report which was in response to and the subject of a Tribunal order) should have been provided to the Public Advocate to file in this proceeding and ought not have been provided directly to the Tribunal by VB. Further, there is no prohibition on the service provider providing that same report to LS. The provision of such reports to the represented person or to the proposed represented person, to the Tribunal's mind, is a better practice than to keep the same secret from the most significant person in hearings under the GA Act. In any event, direct provision to the Tribunal of random information by service providers absent a Tribunal order, is not a practice that should be adopted by service providers.
As to the allegation in (b) and the alleged inability to work 'collaboratively' with LS - to the extent that collaboration by the beneficiary of a trust is a requirement or obligation of a beneficiary - the Tribunal is not persuaded, on the evidence or information provided by the parties, that any lack of collaboration is as a result of the conduct of CM alone. The Tribunal is not able to determine the cause of the miscommunication between Perpetual and CM/LS because of the nature of the information before the Tribunal. That information is not clear; it is not given by witnesses who can give direct evidence of the particular events relied on by Perpetual; the facts of a conversation or event are not sufficiently articulated; Perpetual's conclusions about these events are hotly contested and the allegations cannot be tested. An example of this confusion is Mr M's statement to the Tribunal on 6 February 2018 that CM had 'sacked' Facilitatrix. That assertion is repeated in the Facilitatrix documents dated 11 May 2018 (at page 7 of the chronology) filed for the review hearing. That document is one which Mr M of Perpetual urged the Tribunal to rely upon to establish Perpetual's contention that CM was not acting in LS's best interests as a guardian; CM's guardianship powers and functions should not be restored and indeed the Public Advocate should be appointed as the guardian to protect LS from the influence of CM. The assertion that CM had 'sacked' Facilitatrix continued to be made by Facilitatrix in the chronology notwithstanding the email from ST of Facilitatrix dated 7 February 2018 filed by CM on 9 April 2018 in which ST states:
Thank you for your email and for clarifying that you had in fact not asked that Facilitatrix cease all services with [LS]. My apologies to you; as I have clearly misinterpreted your previous emails.
This is fantastic news (that I got it wrong) …
The Tribunal notes, that at the hearing on 6 February 2018 oral assertions were made that CM had purported to terminate Facilitatrix's role. It appears that that assertion had no foundation as ST apologised to CM the day after that hearing.
The Tribunal has formed the view that the information in the Facilitatrix documents is not reliable as evidence of or information concerning the conduct of CM or indeed LS. Further, the Facilitatrix documents are not reliable because:
(a)The author of each statement contained in the chronology is not identified expressly or by implication.
(b)The author of the statement in many cases was not present at the events referred to in the chronology and those who were present at the events are not identified and do not adopt the statement in the documents (for example by signing the statement).
(c)The author of the chronology provides commentary of events (at which the author was not present) rather than making a statement of the fact of the events.
(d)The document does not purport to identify the individuals concerned in each event and moves randomly from a recitation of facts in the first person to the third person.
(e)None of the documents (or copies of telephone texts) of which the author gives secondary evidence or otherwise relies upon, are attached to the chronology and thus there is no way for the Tribunal to test any of the author's comments or statements to assess whether the chronology or any individual statements therein constitute reliable or cogent evidence of any allegations.
(f)A significant portion of the document is directed to assumptions, inference and rolled up conclusions of opinion concerning CM.
(g)As the report is based upon the chronology, the report also fails to persuade the Tribunal that it is reliable.
In the Tribunal's view, the documentation produced by ST on behalf of Facilitatrix dated 11 May 2018 for the review hearing does not present facts from which the Tribunal may draw its own conclusions. Instead it contains conclusions of the author's opinions of CM's motivations that are impressed upon the Tribunal without the necessary facts.
Without each statement of fact being isolated and, in fairness, put to either CM or LS the Tribunal cannot rely upon the Facilitatrix documentation, as it is lacking in both weight to be attributed and cogency. The cogency of the Facilitatrix documentation is affected negatively in many respects because the author of the chronology and the report assume that:
(a)Facilitatrix was authorised to engage with CM;
(b)Facilitatrix was entitled to demand a response from CM on various matters;
(c)there was no relevant neuropsychological assessment of LS; and
(d)Facilitatrix was entitled to embark upon an enquiry about LS's medical treatment.
In fact, Facilitatrix appears to have been appointed by JH on behalf of the Public Advocate, whose authority did not include making treatment decisions for LS.
The evidence and information produced concerning CM's conduct and whether she has acted other than in LS's best interests presented by or relied upon by Perpetual therefore is not sufficiently reliable and cogent for the Tribunal to place any weight upon the same other than to find, as it does, that there was considerable miscommunication and disharmony between Perpetual and CM and also significantly between Perpetual and LS. As such, the Tribunal cannot conclude that CM failed to act in LS's best interests as alleged by Perpetual or at all.
For the same reasons, the general allegation by Perpetual that CM unduly or improperly influences and has influenced LS is not proved. The Tribunal notes the assertions during the hearing on 18 May 2018 that emails sent by LS were in fact sent/dictated or drafted by CM. It was put to the Tribunal this evidenced CM's undue influence over LS. There was no evidence of the assertions at all and no attempt to adduce any before the Tribunal.
There is no evidence that CM has done anything other than assist her son as the mother of a young adult. LS, as with all individuals, is likely to be the subject of a series of influences during his life. Nothing unusual or untoward was proved against CM in the case of her influence over LS save that Mr M asserted that the relationship between LS and CM was not necessarily a 'normal mother/son relationship' (ts 30, 18 May 2018) because of the payment made by Perpetual to 'perform a particular role' (ts 29, 18 May 2018). Mr M failed to either elaborate on or give any evidence or information to support that allegation. It is not clear what payment or role Mr M referred to. The service agreement between Perpetual and ECS Pty Ltd was not before the Tribunal but it is clear from LO's letter to the Tribunal dated 5 February 2018 and email dated 20 April 2018 that the agreement was terminated before 5 February 2018 (according to JH it was terminated on 1 December 2017). There is no evidence before the Tribunal that the purpose of the service agreement was to pay CM other than to 'reimburse ECS for reimbursables it incurred whilst providing the services' (see letter LO to Tribunal dated 20 April 2018). Perhaps out of pocket expenses incurred by CM on behalf of ECS Pty Ltd for LS would fall into this category but nothing specifically was alleged or advanced by Perpetual. In any event Perpetual decided to enter into that arrangement in 2015 and then decided to terminate the same when it considered the terms were not being complied with by ECS Pty Ltd (see email from LO to the Tribunal dated 20 April 2018). That matter has been resolved by Perpetual's actions. Whether that latter position was justified or not or whether the agreement could be terminated by Perpetual without cause is not clear on the evidence and information before the Tribunal. The Tribunal is not persuaded on the evidence and information before it, that it should conclude any misconduct on the part of CM when operating ECS Pty Ltd.
It appears to the Tribunal that whatever the initial cause of the disharmony between Perpetual and CM and LS, by 28 July 2017 it had culminated in a dispute over which corporate trustee should be the Trustee of the Trust. That is not a matter that is within the Tribunal's jurisdiction but it is a matter that CM as LS's administrator may explore.
As to the most significant of Perpetual's allegation in (c) above, during the hearing before the review Tribunal, LO stated (ts 15, 18 May 2018) that she had been informed by other unidentified neuropsychologists that an assessment of LS 'as an adult' was necessary for Perpetual to be sufficiently informed to make decisions about the planning, investment and expenditure of the Trust assets for LS's benefit. LO stated that Perpetual was waiting for a 'formal' neuropsychological assessment (ts 18 19, 18 May 2018). LO stated that CM had refused or failed to cause LS to undergo a neuropsychological assessment 'as an adult' by a neuropsychologist qualified in that field for adult assessments. In this respect LO explained that CM was not discharging her function as guardian in LS's best interests, a conclusion with which JH and ST agreed. ST in her letter dated 16 April 201 8 to CM put to CM that:
I have spoken to some allied health providers (not specifically about [LS] but in general), who have expressed their opinion that not accessing the relevant assessment could be considered 'medical neglect'.
ST's letter states that, in her view, CM has failed to respond to Facilitatrix's overtures of co-ordinating services for LS. The need for a neuropsychological assessment and report is unclear given the reports by Dr P dated 22 December 2016 and 12 December 2017. JH's report of 18 January 2018 spoke of the need to obtain an 'updated neuropsychological report' for reasons which are unclear given the reports by Dr P dated 22 December 2016 and 12 December 2017. In his report dated 18 May 2018 he states:
The delegated guardian requested Facilitatrix assist [LS] in obtaining a neuro psychological assessment, occupational therapy assessment and rehabilitation assessment to assist in determining his functional level and support needs. Facilitatrix have endeavoured to achieve these assessments without success apparently due to either [LS] or his mother objecting to the need for these assessments.
Again, the need for a neuropsychological assessment for LS at any stage after 19 November 2016 and before 19 November 2019 at the earliest, is not clear given the reports by Dr P dated 22 December 2016.
There was no expert evidence led or any expert information produced by Perpetual (the Public Advocate and Facilitatrix) to substantiate the assertion that a neuropsychological assessment of LS as an adult had not been performed and another was necessary. Neither ST nor LO identified the sources of the opinions they referred to. LO asserted that the assessment undertaken by Dr P was not one that was undertaken of LS 'as an adult' and when referred to the assessment undertaken on 7 December 2017 when LS was 19 years and two months of age, LO stated that it 'wasn't an assessment' (ts 33, 18 May 2018) and stated further:
That was a letter. So she didn't assess him and the agreement was that there would be an adult specialist, because my understanding is, from speaking to some adult neuropsychologists is that there it's a different, I guess, specific skill set to assess adolescents as opposed to adults, because and because [LS] is now 19 and the issue … old assessments refer to his schooling.
That's now no longer relevant[.]
LO does not appear to acknowledge Dr P's assessment of LS in November 2016, the subject of the report dated 22 December 2016 or rate Dr P's assessment of LS on 7 December 2017, the subject of her report dated 12 December 2017.
The letter referred to by LO is that dated 12 December 2017 from Dr P, printed on Patches Paediatric letterhead. From that, it appears, LO inferred there was no neuropsychological assessment by Dr P of LS as an adult. This assumption by LO and Perpetual (the Public Advocate and Facilitatrix) is without foundation. The report dated 12 December 2017 refers to the fact that LS consulted Dr P on 7 December 2017 (when he was 19 years old) at the request of CM, through her solicitor, and that he attended for the period 9 am to 11 am. Dr P relies upon the prior neuropsychological assessments, and in particular that undertaken on 19 November 2016, when LS was 18 years of age. The assessment on that earlier date is the subject of a substantial report by Dr P dated 22 December 2016. That report has been before the Tribunal since 3 January 2017 and Perpetual was aware of the same (see LO's letter to the Tribunal of 28 November 2016). Dr P's report of 12 December 2017 also refers to the new information Dr P received during the two hour consultation with LS and CM and the additional speech pathology assessment undertaken on 6 November 2017.
CM rejected LO's assertions and stated that LS had been assessed as often as she had been medically advised was necessary; and that when Dr P assessed LS he was an adult; Dr P's assessment was not a paediatric assessment and that LS was assessed by Dr P as an adult (ts 52, 18 May 2018).
In order for this issue to be determined by the Tribunal it is necessary to determine:
(a)Whether Dr P is a neuropsychologist qualified to assess adults? For the reasons explained below the answer to this question is 'Yes'.
(b)Whether Dr P did undertake a neuropsychological assessment of LS as an adult? For the reasons explained below the answer to this question is 'Yes'.
(c)Whether on the evidence a further neuropsychological assessment of LS is now required? For the reasons explained below the answer to this question is 'No'.
(d)Whether the CM's failure to cause LS to undergo an assessment as sought by Perpetual was a failure by her in her function as a guardian to act in LS's best interests? For the reasons explained below the answer to this question is 'No'.
Dr P and her evidence
As stated at no time has Dr P's evidence, in the form of written reports been the subject of any crossexamination. As is the practice in the Tribunal, medical and allied health reports produced to the Tribunal or filed by parties are placed before the Tribunal and all parties to the proceeding are at liberty to call for the medical or allied health expert to be cross-examined or to seek a summons for the same to attend the hearing. Perpetual was permitted access to the documents in this proceeding including the medical reports by order of the Tribunal on 19 January 2017 and was aware on 28 November 2016 that Dr P's report of the 19 November 2016 assessment was imminent. The Tribunal has no evidence before it that Perpetual had not been provided with a copy of Dr P's report dated 22 December 2016.
Dr W attached to his short medical report a neurological assessment report by Dr P dated 19 September 2014. Dr P provided a short medical report to the Tribunal dated 1 October 2016. Dr P also provided a copy of her assessment report dated 22 December 2016 to the Tribunal. These reports were provided pursuant to orders of the Tribunal.
In any event, Perpetual had access to all of Dr P's reports on the file, by reason of the Tribunal order dated 19 January 2017.
In her assessment report dated 22 December 2016, Dr P states that she is a clinical psychologist and neuropsychologist registered with the Psychology Board of Australia as a psychologist with an approved area of practice, being clinical psychology and clinical neuropsychology. Dr P also states that she is a full member of the College of Clinical Neuropsychologist and member of the Australian Psychological Society. Dr P states in the assessment report dated 22 December 2016 that she has 'over 23 years' experience conducting neuropsychological assessments of children and adults with known or suspected neurological and/or psychiatric conditions within a medicolegal and/or clinical context'. In that same report, Dr P identifies the following formal qualifications conferred on her by the University of Western Australia:
(a)Bachelor of Psychology;
(b)Master of Clinical Psychology;
(c)Doctor of Clinical Psychology;
(d)Master of Clinical Neuropsychology.
Dr P also states that she is an Associate Professor of Psychology at the University of Western Australia (Director of the Robin Winkler Clinic) and undertakes research, supervision of post-graduate clinical psychology and neuropsychology trainees and lectures students of that university. She states further in that same report that she holds an Honorary Research Fellowship with the Telethon Kids Institute where she engages and conducts research in the areas of neurodevelopmental disorders 'as well as brain injury, concussion and anxiety'.
The Tribunal accepts the statements by Dr P in her assessment report dated 22 November 2016 as true and accurate and finds that Dr P is a properly qualified and experienced expert in the fields of clinical psychology and neuropsychology for both adults and children. The Tribunal finds that Dr P, is qualified and experienced to give factual evidence on the assessments she has undertaken of LS, opinion evidence of the relevance of such assessments and the results and her findings as to the functional capabilities of LS.
There was no formal challenge to Dr P's qualifications or her experience as a clinical psychologist and neuropsychologist, although it appears from LO's statement to the Tribunal, that Perpetual does not consider Dr P to have the qualifications and expertise to give evidence as a neuropsychologist in relation to an adult. If that is the position, the Tribunal rejects that contention and finds Dr P is so qualified.
Dr P's assessment report dated 22 November 2016 records that she had assessed LS on 5 September 2009, 24 March 2012 and 6 September 2014 when he was a child. In Dr P's assessment report dated 19 September 2014, the Tribunal notes that LS attended Dr P's rooms for the assessment in September 2014 for three hours when he was 15 years of age. One of the tests that was administered to LS at that time was a Weschler Intelligence Scale for Children (Australian Adaptation), along with a completed Parent, Teacher and SelfReport Form. It is apparent that the September 2014 assessment report details an assessment performed on LS as a child or rather, one performed on LS relative to his appropriate age group. Dr P then undertook a neuropsychological assessment of LS on 19 November 2016 when LS was an '18 year-old'. Again the assessment occurred over a fairly lengthy consultation of three hours and 20 minutes.
In her assessment report dated 22 December 2016, Dr P also identified a brief statement of LS's medical background; the accident; LS's resultant brain injury and the assessments and tests administered to LS on 19 November 2016 including:
(a)Weschler Adult intelligence Scale (IV Edition);
(b)Weschler Individual Achievement Test Second Edition (selected subtests);
(c)Delis-Kaplan Executive Functioning System (DKEFS) (selected sub-tests);
(d)Weschler Non-Verbal Scale of Ability (WNV) [Spatial Span];
(e)Wide Range Assessment of Memory and Learning (WRAML-2) (selected sub-tests);
(f)Californian Verbal Learning Tests (2nd Edition);
(g)Behavioural Rating Inventory of Executive Function (BRIEF Adult) (Informant Form); and
(h)Child Behaviour Checklist, Self-Awareness of Deficits Interview: Relative Checklist and the Vineland Adaptive Behaviour Scales, Second edition (VinelandII) Parent Form.
In relation to the Verbal Comprehension Index score, Dr P notes that LS's score was in the low average range and 'not indicative of change since first assessed in 2009 (on a children's version of the same test)'. Dr P notes that LS's single word reading test results placed him in the average range 'suggesting that his reading abilities have remained intact for his age group over the past 8 years' and that whilst his performance on 'a mathematics task (numerical operations)' had improved, he remained at approximately the 12 year age 'level' and '6 years below his chronological age'.
The Tribunal observes that the Child Behaviours Checklist was used by Dr P to assess LS's social and emotional functioning. There is no suggestion in Dr P's report that the test was used because LS was being assessed as a child rather than as an adult.
In her report of 22 December 2016 Dr P concludes:
(a)LS is not developing at the same rate as his peers with regard to his every day functioning abilities and will require ongoing 'scaffolding and compensatory strategy'.
(b)The acquired brain injury has resulted in residual permanent cognitive, social/emotional and physical deficits.
(c)LS will require continued rehabilitation supports including regular physiotherapy, occupational therapy, medical specialist reviews and counselling should his low moods continue.
(d)LS will require additional educational assistance (although on the evidence before the Tribunal LS has in fact managed his studies).
(e)LS will require 'considerable support and daily monitoring to live independently in the community'.
(f)Statistically, research indicates LS, being so young at the time of the brain injury, has a higher risk of psychological and psychiatric difficulties depending on other factors such as psychosocial and family function or dysfunction and support or lack thereof.
(g)There will not be a 'clear picture of the full extent of LS's cognitive difficulties until he reaches his early twenties', noting that frontal lobe functioning may mature in early adulthood and thereby affect executive and social/emotional functioning in the future.
(h)LS's low average IQ and moderately low level of adaptive functioning will affect his ability to obtain and maintain employment and his prospects will be restricted.
(i)LS has difficulty with initiating action and completing tasks, sustaining attention and processing information in an environment of high level of distraction and will require 'scaffolding, prompting and compensatory strategies'.
(j)LS's mathematical capabilities will be limited into the future.
(k)LS can understand and remember relevant information provided that the information is presented to the RP in a 'simple manner and repeated' and he is given the 'opportunity to ask questions if issues are not clear'.
(l)LS is able to retain information while making a decision and express consistent choice.
(m)LS's neuropsychological profile suggests that LS:
(i)is socially vulnerable and at risk of exploitation of others;
(ii)will have difficulty with abstract reasoning and verbal problem solving; and
(iii)will have difficulty appreciating information and applying it to his own situation with 'good' judgment and reasoning.
(n)LS has poor sustained attention and listening comprehension abilities.
(o)LS will have difficulty making complex financial or legal decisions on his own and all information of a formal nature (for example contracts) will have to be provided to him and explained 'in a simple manner to ensure his understanding'.
The Tribunal finds that Dr P's report dated 22 December 2016 records a comprehensive neuropsychological assessment having been undertaken in relation to LS as an adult and is not suggestive of the assessment of LS as having been limited to a child assessment. Rather, the report clearly identifies that LS has been assessed by Dr P as an adult by reference to the tests that were applied and deals with postschool transition planning and notes specifically that the full extent of LS's cognitive deficits will only be known when he reaches his early 20s. This is particularly the case with regard to LS's executive, social and emotional functioning as stated and for the reasons expressed by her. Dr P states that she recommends a review of LS's neuropsychological assessment in three years' time - that is, November 2019 when LS will still only be 21 years old. The Tribunal finds that no neuropsychological assessment prior to that time at the earliest is necessary.
The Tribunal concludes that it would not have been unreasonable for CM, as the guardian, to have declined Perpetual's, the Public Advocate's and Facilitatrix's requests for a further neuropsychological assessment prior to about November 2019 at the earliest.
Notwithstanding the recommendation of Dr P, CM caused LS to undergo a further neuropsychological assessment by Dr P on 7 December 2017 to comply with Perpetual's requests. Dr P notes that LS was:
… orientated to time, place and person. He appeared to have a warm, friendly relationship with his mother. He reported feeling happy most of the time …
The report dated 12 December 2017 concludes that LS had matured (as anticipated by Dr P) and was 'more capable of having a greater deal of input into decisions, relating to his life, such as accommodation and employment/study choices, as well as who provides treatment and services'. Given Dr P's statements in her report of 22 December 2016 there may well be further maturity development as LS reaches his early 20s.
Dr P concludes:
Thus in my opinion [LS] is capable of managing his own affairs with all aspects of his life (other than financial) provided that he receives adequate assistance and/or input from family members and professional advisors acting in his best interest.
The Tribunal concludes that Perpetual's assertion that CM has not acted in LS's best interests while his guardian because she had prevented or refused for LS to have a neuropsychological assessment (referred to as allegation (c) above) is not proved to the Tribunal's satisfaction. To the contrary, the Tribunal finds that CM has followed Dr P's advice and recommendation and has also endeavoured to meet Perpetual's request for a further and second neuropsychological assessment of LS as an adult. There is no basis for Perpetual to have disregarded Dr P's reports dated 12 December 2017 and 22 December 2016 as relevant reports of the neuropsychological assessments of LS as an adult. There is no basis for the Public Advocate and Facilitatrix to have ignored these reports.
Sections 4 and 43 of the GA Act Tribunal considerations
Turning now to the central issues for the Tribunal under s 4(3) and the s 43(1)(b) and (c) factors of the GA Act, the Tribunal first refers to the expert evidence of Dr P. Whilst the evidence of Dr P, which the Tribunal accepts for the reasons explained, is that LS's statistical profile suggests that he is socially vulnerable and at risk of developing psychological disorders and that in December 2017 that profile had not substantially changed, there is no evidence that he is in fact socially vulnerable or that if he is, he has succumbed or been tempted to succumb to exploitative suggestion or pressure. Nor is there evidence of any psychological disorder.
The advice LS relies upon is that given by his medical advisors and allied health professionals, and his family including his mother and brothers. The Tribunal is not persuaded that any of those people have made untoward suggestions to LS or that they act other than in LS's best interests. Further, whilst the Tribunal observed some difficulty in language and LS required a little time to respond to the Tribunal's questions, LS displayed a degree of sophistication of observation, judgment and articulation during the course of the hearing that was unexpected by the Tribunal, given Dr P's reports of 22 December 2016 and 12 January 2017 (ts 50, 18 May 2018).
The Tribunal observes Dr P does not recommend that an independent decisionmaker on personal matters should be considered for appointment, but rather, advisors and social/family support should be available so that LS can receive information; process it in his own time and way and be free to ask questions and seek explanations that others of his age may not need to do, so that he can formulate his own decisions on matters. By contrast, a guardianship order removes that decisionmaking power from a person.
Dr P in her assessment reports of 22 December 2016 and 12 January 2017 stressed the impact of family on LS's future social and psychological development and there is no evidence before the Tribunal of any kind of familial dysfunction posing any danger to LS's development. The Tribunal notes that ST concludes that LS is not permitted by CM to 'live a free and meaningful life of his choice' and warns the Tribunal about the 'repercussions' to LS if the documentation dated 11 May 2018 is to be shown to CM (see report dated 11 May 2018). There is no statement of ST's qualifications, clinical experience or formal learning to make any assessment of LS and his family. Nor is there evidence of any facts to support such conclusions. The Tribunal finds that the documents by Facilitatrix are of little value in assisting the Tribunal in this matter for the reasons expressed above. The Tribunal finds that any statements suggesting or tending to suggest that LS's family pose some form of danger to him are unsupported by factual or expert evidence and information before the Tribunal.
Dr P has cautioned that LS will require considerable support and assistance in functioning outside the family unit in which he currently lives, in order to live 'independently' in the future. She does not suggest that a move to full independence from his family unit should be advanced immediately or should be well under way at this stage. Both LO, Mr M and JH asserted there to be telephone calls and emails from LS stating that he wanted to move away from his family. Not one text or email was put before the Tribunal to establish that such utterance was made by LS, let alone that any such statement by LS was made truthfully or accurately and without unseemly haste or in anger. It is apparent to the Tribunal that LS has experienced considerable angst from these proceedings and the circumstances giving rise to them. Against the assertions that LS wanted to leave his family unit, the Tribunal received the clear unequivocal evidence from LS that that was not the case, at least not while he was studying (ts 12 13, 18 May 2018). Further, Perpetual's, the Public Advocate's and Facilitatrix's submissions to the Tribunal presupposed that LS should already have left the family unit but there is no basis for that statement either in Dr P's reports (or any other medical or allied health expert reports) or by reason of any evidence or information put to the Tribunal of LS's wish to do that.
The Tribunal also notes that Dr O, whom LS consults on a regular basis for referrals and the like has held the opinion since LS was an adult that LS could make his personal decisions himself with the support of the usual supports one might expect a young adult or indeed any adult family and medical advisors.
LS gave evidence along with CM that he has completed certain qualifications in high school and was enrolled at TAFE. LS has a driver's license. LS gave clear evidence that he wished to continue with his TAFE studies with a view to being engaged or employed, in due course, in a role to assist people in situations similar to him and possibly as a sporting coach to children. LS gave clear evidence that he wished to continue with his physical rehabilitation under the direction of AR and to play Football. He also gave evidence that he wished to remain living with CM, AMJT and BTM at his current home (ts 12 13, 18 May 2018). He gave evidence that he was aware of his short comings in terms of his ability to read, process information and learn but was clear and unequivocal that he knew how to access TAFE student services and felt quite able to manage all of his services himself, albeit with familial support. These ambitions, along with having Perpetual purchase a vehicle for him of his choice and increase his allowance, were the matters that concerned him most and these concerns are not unreasonable or unusual for a person of LS's age. The Tribunal considers LS's stated ambitions to be common place and modest for someone of his age.
LS gave evidence that he was not happy with the upset that had been created in his life and to his mother and other members of his household by Perpetual's assertions that CM was not acting in his best interests. He gave evidence that he was unhappy with JH's, Perpetual's and Facilitatrix's attempts to interview him at his home unannounced. He gave evidence that he was most unhappy that his wishes to continue with his studies at TAFE and his physical rehabilitation with AR had been interfered with, as he saw it, by Perpetual's delay in paying his TAFE fees, the involvement of the Public Advocate which he considered had not been of assistance and the actions and activities of the representatives of Facilitatrix. It is apparent from the evidence is that the communication with LS from Perpetual, the Public Advocate, Facilitatrix and even VB has been less than optimal, in circumstances when it is known to or ought to have been known to all concerned that LS has difficulty with:
(a)attention when distracted;
(b)the receipt of complex information unless it is simplified;
(c)the processing of that information; and
(d)the speed at which he can process information.
The number of people who have had a role to play in LS's life as a result of the orders made on 6 February 2018 have not improved communications with or about LS. Rather, communications with or about LS have been made more complex with no benefit to him. This was expressly acknowledged by LO in the course of the hearing (ts 34, 18 May 2018).
The Tribunal had no difficulty hearing and understanding LS's evidence about his ambitions and wishes, and finds him to be articulate and clear. The Tribunal finds the demeanour of LS to be that of a 'polite, cooperative young man whom was cheerful and pleasant' as did Dr P who said LS has 'a pleasant and likeable personality' (report 22 December 2016).
The evidence of LS has particular significance in matters concerning the application for the appointment of guardians and administrators as stated in s 4(7) of the GA Act and the Tribunal is directed specifically to ascertain the views and wishes of LS. Having obtained that information the Tribunal has taken into consideration:
(a)the demeanour of LS in the course of the hearing;
(b)the insightful statements made by LS to the Tribunal concerning his limitations;
(c)LS's demonstrable ability to communicate and comprehend difficult concepts in the course of the hearing and respond appropriately and directly to the Tribunal's questions;
(d)the relevance of the submissions made by LS; and
(e)Dr P's observation that LS had matured between late 2016 to late 2017 and that he may continue to mature.
The Tribunal places significant weight on LS's view that he is able to make personal decisions about his life wishes to do so.
The evidence of CM was limited largely to her view that LS could manage to make decisions about his life on his own, acknowledging that he did seek the views of others including his family members. CM also gave evidence concerning the assessments undertaken by Dr P stated above.
AR gave evidence that he had some practical experience in dealing with, assisting and advising people of LS's age with various physical and psychological challenges. It was his view as LS's fitness trainer having worked with him for about four years, that LS did not require any external oversight.
AMJT gave limited evidence noting the disruption caused to LS and CM as well as the rest of the family unit by the involvement of others in LS's personal decisionmaking, which in his view was distressing to LS and the whole family. Both AMJT and BTM stated that they did not believe a guardian was required.
The evidence of JH and ST purported to support Perpetual's contentions about CM. However, given the lack of reliable information supplied by both to support their conclusions the Tribunal is not able to accept their respective recommendations. Because of the evidence within Dr P's reports the Tribunal does not accept their statements as to LS's capabilities or his need for a guardian. The fact that they have not been able to communicate effectively with LS may be because LS does not wish to be compelled to communicate with them, rather than because of the conduct of CM. Further, it appears that the Public Advocate engaged the services of Facilitatrix at least for a trial period. The limited function of the guardian with respect to services was to determine what services LS could access but did not extend to compelling LS to accept the services identified or to demand medical assessments of LS. That is beyond the Public Advocate's limited functions. This may be the source of the considerable confusion between the Public Advocate and Facilitatrix on the one hand and LS and/or CM on the other.
The evidence of both representatives of Perpetual is referred to above.
VB is an advocate with Explorability Inc. She did not appear at the hearing on 18 May 2018. Her role and qualifications are not before the Tribunal. Her precise role in relation to LS, what services he was to be provided with by Explorability Inc and who engaged this business are not clear from the material before the Tribunal. The Tribunal places little weight on the email communications with VB or her Service Provider report dated 4 May 2018 because of her assumption that a neuropsychological report was required and the lack of reference to Dr P's reports referred to above.
Conclusion
The matters specifically raised by Perpetual have been considered in the context of the allegations and the evidence and information before the Tribunal on 18 May 2018. Ultimately, the Tribunal must be persuaded by cogent and reliable evidence and information that LS lacks the abilities that s 4(3) of the GA Act presumes him to have now that he has attained the age of 18. Even then, the Tribunal must be persuaded, again, on cogent and reliable evidence or information that LS is:
(i)incapable of looking after his own health and safety;
(ii)unable to make reasonable judgments in respect of matters relating to his person; or
(iii)in need of oversight, care or control in the interests of his own health and safety or for the protection of others;
as provided for by s 43(1)(b) of the GA Act.
The Tribunal accepts the evidence of Dr P as to her clinical assessment and findings, in the context of the personal decisions required of LS to manage his actual personal affairs now and the Tribunal is not persuaded that the presumptions referred to in s 4(3)(a), (b) and (c) of the GA Act, are rebutted by the evidence and information. Nor is the Tribunal persuaded of the matters referred to in s 43(b)(i), (ii) or (iii) in respect of LS. It is for this reason that the Tribunal revoked declaration (c) made in the order dated 6 February 2018.
Further still and if the Tribunal is wrong in the aforementioned conclusion, the Tribunal must be persuaded on cogent and reliable evidence or information that, if LS meets any one or more of the factors referred to in ss 43(1)(b)(i), (ii) or (iii) of the GA Act and that the ss 4(3)(a), (b) and (c) of the GA Act presumptions are rebutted, LS is 'in need' of a guardian (s 43(1)(c) of the GA Act). In terms of 'need' s 4(4) of the GA Act directs the Tribunal that if the 'needs' of LS 'could, in the opinion of the State Administrative Tribunal, be met by other means less restrictive of the person's freedom of decision and action' then a guardianship order 'shall not be made'.
In this matter, the Tribunal has arrived at a conclusion based on the evidence and information before it, that if LS does lack any of the s 43(1)(b) capabilities, the family members and medical advisors and allied health experts supporting LS, whose advice he receives, considers and follows, provide the scaffolding and support of which Dr P speaks in her report dated 22 December 2016. This support constitutes a suitable less restrictive alternative to the appointment of a limited guardian. That being the Tribunal's finding, the Triubnal cannot order the appointment of a guardian for LS.
For these reasons, the Tribunal ordered the declaration (d) made in the orders dated 6 February 2018 be revoked and that the orders 5 and 6 made on 6 February appointing the Public Advocate as a limited guardian also be revoked.
Accordingly, for these reasons the Tribunal did on 18 May 2018 revoke orders 5 and 6 of the orders made on 6 February 2018. The Tribunal also ordered a minor consequential variation to order 7 made on 6 February 2018.
On 18 May 2018 the Tribunal made the following orders:
Orders
1.Declarations (c) and (d) of the declarations of the Tribunal dated 6 February 2018 are revoked.
2.Orders 5 and 6 of the orders of the Tribunal dated 6 February 2018 are revoked.
3.Order 7 of the orders of the Tribunal dated 6 February 2018 is revoked and the following order is substituted for it:
(a)The administration order is to be reviewed by 5 February 2019.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS N OWEN-CONWAY, MEMBER
20 JULY 2018