| JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : HUMAN RIGHTS ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : MJB and DB [2013] WASAT 25 MEMBER : JUDGE D R PARRY (DEPUTY PRESIDENT) MS S GILLETT (MEMBER)
DR A MCCUTCHEON (SENIOR SESSIONAL MEMBER)
HEARD : 22 JANUARY 2013 DELIVERED : 22 JANUARY 2013 PUBLISHED : 14 FEBRUARY 2013 FILE NO/S : GAA 4472 of 2012 BETWEEN : MJB Catchwords: Guardianship and administration s 17A review Limited administration Mental disability Capacity Capacity to make decisions in relation to settlement of workers' compensation proceeding Capacity to make decisions in relation to conduct of workers' compensation proceeding Medical evidence Views and wishes of represented person Best interests of represented person
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Legislation: Guardianship and Administration Act 1990 (WA), s 4(2)(b), s 17A, s 64(1) Result: Limited administration order revoked
Summary of Tribunal's decision: The represented person sought review under s 17A of the Guardianship and Administration Act 1990 (WA) of a limited administration order that authorised his father to conduct and settle proceedings on his behalf. In particular, the represented person brought a workers' compensation proceeding and, in September 2012, refused to accept an offer of settlement. The purpose of the limited administration order was to enable the father to settle the proceeding.
The Tribunal gave an oral decision following a short adjournment. The Tribunal found that the represented person lacks capacity to make reasonable judgments in relation to the conduct of the workers' compensation proceeding, because his chronic depression and anxiety are complicated by the pressure associated with the conduct of the proceedingwhich, in September to November 2012, developed into psychosis. However, the Tribunal also found that the represented person has capacity to make reasonable judgments in relation to the settlement of the workers' compensation proceeding, as he is not subject to the same pressure in relation to settlement as in conducting the proceeding, and is being treated with anti-psychotic medication.
The Tribunal determined that the correct and preferable decision is to revoke the limited administration order, because although it is in the represented person's best interests for the settlement offer to be accepted, it is also in his best interests, having regard to his strongly expressed view, that, if at all possible, the decision to settle the proceeding should be made by him, rather than for him.
Finally, the Tribunal noted that if the represented person does not accept the settlement offer, following written advice from his solicitors recommending its acceptance, then an application should be brought to the Tribunal and determined on an expedited basis for the appointment of an administrator for the further conduct of the workers' compensation proceeding, including its settlement.
The Tribunal subsequently published written reasons which are taken from the transcript of oral reasons edited in minor respects.
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Category: B
Representation: Counsel:
Applicant : In person
Respondent : Mr G Porter
Solicitors:
Applicant : N/A
Respondent : Talbot Olivier
Case(s) referred to in decision(s):
Nil
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REASONS FOR DECISION OF THE TRIBUNAL:
Background 1 Mr MJB (represented person) is a 30yearold accountant by profession. He currently resides in Hobart, Tasmania, which has been his home for all but a few years. The proposed represented person came to Perth in 2008 and worked for an accounting firm for approximately 30 months. He resigned from that employment in November 2010. The represented person then worked for a smaller firm for a short period of time before returning to Tasmania. He has not been fit for work since. 2 The represented person has brought a workers' compensation claim against the firm of accountants where he worked for 30 months in Perth. In that action, he is represented by the firm of Talbot Olivier, of which Mr Gray Porter is a partner. The workers' compensation claim had progressed to an informal pretrial settlement conference in September 2012. It appears that an offer for settlement was made at that time. However, the offer has not been proceeded with or, at least, has not been brought to completion, because the represented person indicated that he would not accept the offer at that time. 3 The Office of the Public Advocate (Public Advocate) conducted a telephone interview at the Tribunal's request with the represented person. The represented person indicated in that telephone interview that at the time of September 2012, he had experienced some difficulties in terms of his shortterm memory and the stress associated with the workers' compensation claim. 4 In September 2012, Mr Porter gave some advice to the represented person about the settlement offer. Mr Porter indicated that while the represented person was willing to accept the settlement offer, he was reluctant to agree with all of the terms of the settlement, one of which being that he would pursue no other common law claims. Mr Porter indicated that shortly after the offer was made and conveyed, in about early October 2012, he was contacted by the represented person's treating psychiatrist, Dr A, who advised Mr Porter that in her opinion, the represented person was not able to give instructions in his own right with respect to the claim. 5 As a consequence, Talbot Olivier made an application to the Tribunal for the represented person's father, Dr DB (father), to be appointed as limited administrator of the represented person's estate in an effort to bring the workers' compensation proceedings to an end through (Page 5)
settlement. On 27 November 2012, that application for the appointment of a limited administrator was heard by a single member of the Tribunal, Member F Child. 6 In effect, the application was by consent at that point. The represented person played a very limited role, it appears from the transcript, in the hearing, indicating only in answer to a question from the member, 'I don't really have that much energy for any of this', and 'I have difficulty keeping up with it'. 7 The member formed the view that it is in the represented person's best interests for the workers' compensation proceeding to be brought to an end quickly and that failure to do so would exacerbate his mental health problems. The member made a limited order appointing the father as the represented person's limited administrator, with the function to seek legal advice on behalf of the represented person and to bring actions, suits and other legal proceedings in the name of the represented person and, if appropriate, to settle the same. The order was made reviewable on 27 May 2013. 8 The represented person subsequently made an application to the Tribunal under s 17A of the Guardianship and Administration Act 1990 (WA) (GA Act) for review of the decision of the single member by a Full Tribunal. This is a hearing de novo, that is, a fresh consideration of the matters that were before the single member, based on the information before the single member and any further information available to the Tribunal.
The views and wishes of the represented person 9 The Public Advocate provided a report based on the officer's telephone interview with the represented person at the Tribunal's request. In the report from the Public Advocate, the officer indicated that the represented person, while accepting the decision made on 27 November 2012 originally, changed his mind, feeling that he had lost control of the workers' compensation proceeding. 10 The represented person told the investigating officer that he thought, notwithstanding the administration order, that he would be included in negotiations and would be able to advise his father what instructions and decisions he wished to be made, and that all his wishes would be acted upon. However, subsequently, the represented person came to the view that he should be allowed to make these decisions for himself and, although he would be guided by the advice of Talbot Olivier in the (Page 6)
workers' compensation claim, it is he who should be able to make the decision as to settlement. 11 The Public Advocate was unable to gather sufficient information, given the limited time available after the Tribunal's request for its report, to form a firm view as to whether the represented person lacks capacity in relation to the workers' compensation proceeding. The Public Advocate indicated, however, both in the written report and in the officer's helpful submissions, that there was some indication, in comments by the represented person during the telephone discussion, that he may hold an unrealistic view of the likely success of his claim, should it proceed to a hearing. The Public Advocate also noted in his report that the represented person has focused on little else than the workers' compensation claim over the past two years and harbours many painful experiences from his time in the employ of his former employer.
Dr A's reports 12 The Tribunal has before it four reports of Dr A, the represented person's treating psychiatrist. The reports are dated 7 November 2011, 22 August 2012, 5 October 2012 and 26 October 2012. The reports indicate a progression and some fluctuation in the represented person's condition. It is clear from the first and second reports that in 2011 and as late as 22 August 2012, the represented person was suffering from significant illness which appeared on 22 August 2012 to be 'close to psychosis'. 13 The significant illness diagnosed by Dr A was of the nature of chronic depression and anxiety, complicated by the stress and pressure associated with the conduct of the workers' compensation proceeding. By the time of Dr A's third and fourth reports in early and later October 2012, the pressure and concern of the proceeding had given rise to what Dr A diagnosed as a psychotic circumstance which was secondary to the proceeding. 14 In her report of 5 October 2012 to Talbot Olivier, which was the catalyst for the application by Talbot Olivier to the Tribunal for an administration order, Dr A said: Unfortunately, his mental state has deteriorated considerably and he is now psychotic. That means he no longer has complete contact with reality. Dr A said in the same letter: (Page 7)
I do not think at the moment that [the represented person] has the capacity to instruct you in this matter as he is very persecuted about the incidents which happened in his previous work environment. Dr A also expressed the concern: Pursuit of his workers' compensation claim with respect to this may worsen his current mental state and may result in further deterioration. 15 In her final report before the Tribunal dated 26 October 2012, which is a report written directly to the Tribunal and attaching a doctor's guide, Dr A said: Because [the represented person's] 'psychosis' is directly related to the issues of the workers' compensation case, I believe that he does not currently have the capacity to administer that case himself. Dr A said: It would be sensible for his father to take over the administration of that case. However, Dr A expressed the opinion: In other matters, [the represented person] is quite competent to organise his own affairs. 16 In the doctor's guide, Dr A confirmed her view that the represented person is generally competent to make reasonable decisions about his financial affairs, '… but [is] unable to see the difficulties and facts of the workers' compensation case'. 17 The Tribunal attempted to arrange for Dr A to give evidence at the hearing. Unfortunately, Dr A was unable to give evidence because, until very recently, she has been overseas and could not be contacted.
Dr B's evidence 18 The evidence before the Tribunal also included a report of the represented person's general practitioner, Dr B, dated 4 September 2011. In that report, Dr B expressed a consistent concern with Dr A: [t]hat [the represented person] may have his symptoms worsened by his following a workers' compensation claim and the pressure that will put him under. 19 Dr B was available to give evidence before the Tribunal by telephone and he answered questions from the Tribunal and the parties. Dr B indicated that he had not seen the represented person from (Page 8)
September 2012 until early January 2013 because he was away on long service leave. Dr B gave consistent evidence with the reports of Dr A that when he last saw the represented person in September 2012, he was near psychotic and not able to make reasonable decisions. 20 Dr B said, however, that when he next saw the represented person in early January 2013, the represented person felt better and 'his reasoning is reasonable now'. Dr B gave evidence that, on his understanding, Dr A increased the antipsychotic medication that was prescribed to the represented person in late December 2012. Dr B expressed the opinion that the represented person is now able to make reasonable decisions about settlement of his claim. He said, however, that if the workers' compensation proceeding was not settled and proceeded to a hearing, the pressure associated with the conduct of that proceeding would be such that the represented person could not make reasonable decisions about the conduct of the proceeding.
The represented person's evidence 21 The represented person gave evidence to the Tribunal that during the period July, August and September 2012, he found the workers' compensation proceeding and its associated document preparation 'heavy going', but that he feels much better now. He acknowledged that he was having difficulty last year because of the process of the workers' compensation proceeding, but considered that, in light of his medication, he is now feeling much better and able to make decisions for himself. 22 The represented person made two points repeatedly throughout his evidence, which was given in a lucid manner. The first was that, being an adult, and given that the matter in the workers' compensation proceeding concerns something which he went through, he should be allowed to make the decision to settle that proceeding. The second point that the represented person made was that 'I would always follow the recommendation of Talbot Olivier'. 23 When asked by Mr Porter, the represented person confirmed that he would follow a clear recommendation of Talbot Olivier, if he were allowed to do so, to settle his workers' compensation proceeding, even if that involved the giving up of general common law claims against the former employer; in other words, even if the settlement of the workers' compensation proceeding would bring to an end the possibility of any other claims that the represented person has, or could potentially have, against the former employer. (Page 9)
24 It emerged during the questioning of the represented person by Mr Porter that although, in September 2012, Talbot Olivier provided a letter to the represented person indicating that the offer apparently made on behalf of the employer was 'not unreasonable', there was not, at that stage, advice given in terms of a recommendation to accept the offer. It appears that such advice was subsequently given by Talbot Olivier in December 2012 to the father, and copied to the represented person. 25 The represented person maintained that there is a clear difference between the expression in September 2012 and in December 2012. Although the represented person said that he would have been satisfied with the recommendation made in December 2012, importantly, it was not a recommendation that was made to him as a person with capacity to make the decision to accept the offer. The represented person was adamant that it was his claim andthat he should have the legal ability to accept the offer.
Capacity to make decisions in relation to conduct of workers' compensation proceeding 26 The GA Act states a legal presumption that every person is presumed to be capable of, among other things, managing his or her own affairs and making reasonable judgments in respect of matters relating to his or her estate until the contrary is proved to the satisfaction of the Tribunal: s 4(2)(b). Specifically, in relation to the making of an administration order, in order for the presumption of capacity to be displaced, the Tribunal must be satisfied that the proposed represented person 'is unable by reason of mental disability to make reasonable judgments in respect of matters relating to all or any part of his estate' and is in need of an administrator of his estate: s 64(1). 27 We are satisfied, on the evidence of Dr B, that the represented person is a person for whom an administration order can be made in relation to the conduct of the workers' compensation proceeding. We are satisfied that the represented person is unable, by reason of mental disability, namely, chronic depression and anxiety, complicated by the pressure associated with the conduct of the proceeding which resulted in him developing a psychosis in about September 2012 secondary to the process, for which he is now receiving treatment, to make reasonable judgments in respect of matters relating to part of his estate, namely, the conduct of the workers' compensation proceeding and matters incidental thereto. (Page 10)
Capacity to make decisions in relation to settlement of workers' compensation proceeding 28 We are not satisfied on the evidence, including the evidence of Dr A and Dr B, that, as we consider this matter, the represented person is unable, by reason of his mental disability, to make reasonable judgments in respect of matters relating to settlement of the workers' compensation proceeding. 29 In making this finding, we note that we consider that it is certainly in the represented person's best interests to settle the workers' compensation proceeding quickly, both in order to bring that proceeding to an end and because it is clear that the maintenance of those proceedings has been detrimental to his mental health. However, we also consider that it is in the represented person's best interests, if at all possible, for the decision to settle the proceeding to be made by him and communicated by him to his solicitors, rather than for a decision to be made for him by his father. 30 Although we have not had the benefit of oral evidence from Dr A and although, as Mr Porter correctly observed, Dr B has not reviewed all of the reports of Dr A (although the Tribunal forwarded them to him), nevertheless, a consistent picture emerges of the progression of the represented person's mental disability over the course of the second half of 2012 and early 2013. That consistent picture is that there is an underlying significant mental disability caused, or contributed to, by work-related issues, which became complicated by the development of a psychosis in or around September 2012 which precluded reasonable decisionmaking in relation to any aspect of the compensation proceedings. The psychosis appears to have been appropriately and successfully treated at this stage, in consequence of an increase in medication in December 2012. We consider that this is a significant change from the circumstances that were before the member on 27 November 2012.
Tribunal's decision on review 31 Two possible outcomes therefore present themselves to the Tribunal. The first is to confirm the limited administration order, but vary it by deleting the power of settlement or authority to settle proceedings. The second is to revoke the administration order at this time. 32 We consider that the second of these options is preferable, in the best interests of the represented person, because of his very clearly expressed view that he should be able to make the decision and not have an (Page 11)
administrator appointed. However, it also follows from our reasons that, on the evidence of Dr B, we consider that the represented person is unable, by reason of his mental disability, to make reasonable judgments in respect of the conduct of the workers' compensation proceeding. 33 The consequence is that, if having revoked the administration order and Talbot Olivier having given the same advice to the represented person as it has given to his father in December 2012, recommending settlement and acceptance of the offer in the workers' compensation proceeding, the represented person does not accept that advice, then an application should be brought to the Tribunal and determined on an expedited basis for the appointment of an administrator for the further conduct of the workers' compensation proceeding, including its settlement. 34 Of course, any such application would be informed by the evidence presented at that time which may involve additional evidence to that which we have heard and taken into account. We also consider that if the matter needs to come back to the Tribunal, that is to say, if the represented person does not accept an offer of settlement supported by a recommendation by Talbot Olivier in the form in which it recommended to his father in December 2012, the matter should be listed, ideally, before the same panel, subject to the President's approval. 35 For the above reasons, we are going to make an order revoking the administration order made on 27 November 2012. 36 In conclusion, we wish to make it clear to all the parties, including the represented person, that we consider that it is in his best intereststo settle the workers' compensation proceeding as soon as possible and to move on. 37 We have expressed the finding that it is also in the represented person's best interests for him to make the decision to settle. However, if the represented person receives advice recommending that he accept the offer of settlement from Talbot Olivier in the terms that were conveyed to his father in December 2012 and does not accept that advice, then those circumstances may be relevant if the matter comesback before the Tribunal in deciding whether a further administration order should include not simply conduct of the workers' compensation proceeding as it has not been settled, but also authority to settle the workers' compensation proceeding. The question that would also have to be decided at that stage, which we hope will not come about because the workers' compensation proceeding would have been settled, is who would be appointed as an (Page 12)
administrator. That is something that the Tribunal does not need to consider on this occasion. 38 For all of these reasons, we are satisfied that the correct and preferable decision at the time of the review is to set aside the order made on 27 November 2012. The order, therefore, is that the limited administration order made in GAA 3753 of 2012 on 27 November 2012 is revoked. |