MS G
[2017] WASAT 108
•17 MARCH 2017
MS G [2017] WASAT 108
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2017] WASAT 108 | |
| 16/08/2017 | |||
| GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) | |||
| Case No: | GAA:2946/2016 | 17 MARCH 2017 | |
| Coram: | MS H LESLIE (MEMBER) MR J MANSVELD (SENIOR MEMBER) DR F NG (SENIOR SESSIONAL MEMBER) | 17/03/17 | |
| 31 | Judgment Part: | 1 of 1 | |
| Result: | Tribunal satisfied Ms G in need of oversight and care in the interest of her own health and safety Tribunal appointed Public Advocate limited guardian to make decisions about support services that might be put in place to support Ms G at home, address her health issues and to improve her quality of life | ||
| B | |||
| PDF Version |
| Parties: | MS G |
Catchwords: | Guardianship and administration Presumption of capacity Need for oversight and care Interpretation of s 43(1)(b)(iii) Guardianship of capable persons Need Scope of inquisitorial role of the Tribunal |
Legislation: | Guardianship and Administration Act 1990 (WA), s 3, s 4, s 43, s 44, s 45, s 64, s 65, s 68, s 69, s 84 State Administrative Tribunal Act 2004 (WA), s 32, s 64 |
Case References: | GC [2017] WASAT 80 Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; (2010) 241 CLR 390 Polizzi v Commissioner for Police [2017] WASC 166 S v State Administrative Tribunal of Western Australia [No 2] [2012] WASC 306 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 |
Summary | An application was made for guardianship and administration orders by the family of a woman suffering from at least anxiety, depression and a panic disorder. There was also evidence that she was abusing alcohol and misusing prescriptions drugs and had attempted suicide by overdose several times. Her family submitted that she was suffering further symptoms consistent with undiagnosed bipolar affective disorder or an undiagnosed personality disorder. The woman disputed many of the facts alleged and opposed the orders. The medical evidence which included sworn evidence from a consultant psychiatrist did not meet the criteria for the making of an administration order. That application was dismissed as was the interim s 65 protective order that had been made.,In relation to guardianship, the medical evidence did not support a determination that the woman had lost the capacity to make reasonable judgments in respect of matters relating to her person, nor that she was incapable of looking after her own health and safety. The Tribunal was however satisfied on the basis of the evidence from her family, supported as it was to some extent by hospital records relating to recent emergency hospital admissions, that the woman was in need of some oversight and care in the interests of her own health and safety and that this could be best provided by the making of a limited shortterm guardianship order in favour of an independent guardian, the Public Advocate, in an attempt to put in place some supports and services to improve the woman's circumstances.,The Tribunal discussed the onus of proof and the role of the Tribunal in eliciting evidence, the proper interpretation of s 43(1)(b)(iii) of the Guardianship and Administration Act 1990 (WA) (GA Act), the interrelationship between s 4 and s 43 of the GA Act and the potential for the making of guardianship orders for socalled 'competent' persons where the need set out in s 43(1)(b)(iii) of the GA Act is found as a matter of fact. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : MS G [2017] WASAT 108 MEMBER : MS H LESLIE (MEMBER)
- MR J MANSVELD (SENIOR MEMBER)
DR F NG (SENIOR SESSIONAL MEMBER)
- Represented Person
Catchwords:
Guardianship and administration - Presumption of capacity - Need for oversight and care - Interpretation of s 43(1)(b)(iii) - Guardianship of capable persons - Need - Scope of inquisitorial role of the Tribunal
Legislation:
Guardianship and Administration Act 1990 (WA), s 3, s 4, s 43, s 44, s 45, s 64, s 65, s 68, s 69, s 84
State Administrative Tribunal Act 2004 (WA), s 32, s 64
Result:
Tribunal satisfied Ms G in need of oversight and care in the interest of her own health and safety
Tribunal appointed Public Advocate limited guardian to make decisions about support services that might be put in place to support Ms G at home, address her health issues and to improve her quality of life
Summary of Tribunal's decision:
An application was made for guardianship and administration orders by the family of a woman suffering from at least anxiety, depression and a panic disorder. There was also evidence that she was abusing alcohol and misusing prescriptions drugs and had attempted suicide by overdose several times. Her family submitted that she was suffering further symptoms consistent with undiagnosed bipolar affective disorder or an undiagnosed personality disorder. The woman disputed many of the facts alleged and opposed the orders. The medical evidence which included sworn evidence from a consultant psychiatrist did not meet the criteria for the making of an administration order. That application was dismissed as was the interim s 65 protective order that had been made.
In relation to guardianship, the medical evidence did not support a determination that the woman had lost the capacity to make reasonable judgments in respect of matters relating to her person, nor that she was incapable of looking after her own health and safety. The Tribunal was however satisfied on the basis of the evidence from her family, supported as it was to some extent by hospital records relating to recent emergency hospital admissions, that the woman was in need of some oversight and care in the interests of her own health and safety and that this could be best provided by the making of a limited shortterm guardianship order in favour of an independent guardian, the Public Advocate, in an attempt to put in place some supports and services to improve the woman's circumstances.
The Tribunal discussed the onus of proof and the role of the Tribunal in eliciting evidence, the proper interpretation of s 43(1)(b)(iii) of the Guardianship and Administration Act 1990 (WA) (GA Act), the interrelationship between s 4 and s 43 of the GA Act and the potential for the making of guardianship orders for socalled 'competent' persons where the need set out in s 43(1)(b)(iii) of the GA Act is found as a matter of fact.
Category: B
Representation:
Counsel:
Represented Person : Ms C Searle
Solicitors:
Represented Person : Legal Aid
Case(s) referred to in decision(s):
GC [2017] WASAT 80
Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; (2010) 241 CLR 390
Polizzi v Commissioner for Police [2017] WASC 166
S v State Administrative Tribunal of Western Australia [No 2] [2012] WASC 306
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152
Introduction
1 The application before the Tribunal is an application for both guardianship and administration orders. It is made by IB, one of the daughters of Ms G, but has the support of her whole family which includes three other adult children, CB, ChB and NG and her former husband, CG.
2 Interim orders were made in the proceedings as follows:
i) to facilitate investigation by the Public Advocate (of the need for orders and the wishes and views of Ms G),
ii) to facilitate access by Ms G to all relevant documents,
iii) a protective order to permit the Public Trustee to protect and secure Ms G's estate pending the determination of whether she was a person for whom an administration order could be made
iv) on the basis of the agreement of Ms G to participate in such an arrangement, a limited guardianship order to allow the Public Advocate to facilitate, arrange and consent to the referral of Ms G by her General Practitioner (GP) to a psychiatrist for a full capacity assessment to include a consideration of whether she was, by reason of any psychiatric condition any personality disorder, and addiction or for any other reason, a person for whom guardianship and/or administration orders could or should be made.
3 The Tribunal also arranged for a referral to be made to the Legal Aid Commission of Western Australia under its protocol arrangements with that body to allow Ms G to have representation at the hearing.
Background
4 Ms G is a 62-year-old woman. She suffered from a number of difficulties during her youth and by the age of 24 suffered from what she describes as 'fullblown panic attacks'. She married her first husband in the United Kingdom (UK). They had three children, CB (born 1987), ChB (born 1989) and IB (born 1992). The family moved to Australia because of her first husband's work in the oil industry. Ms G says that the move was intended to be only shortterm but became longterm despite her wish to return to the UK. In Australia, the marriage ended and she met her second husband CG. They were married in 1996. Ms G was then aged 40. NG was born that same year. In December 1996, the family moved to the wheatbelt. The relationship is noted to have been tumultuous. In mid1997, the couple separated and Ms G returned to live in a house in Perth (the family home) with the children. She had poor social supports in Perth and faced residency problems given the short length of the marriage and the fact that she was not an Australian citizen. At this time the children were aged respectively, approximately 10, eight, five and one years. There was a divorce and custody battle. In approximately 2000, Ms G was prescribed Xanax to control her panic attacks. She has had a number of hospital admissions in situations of crisis.
5 Ms G did not work when the children were young but in later years, she commenced some tertiary study and has done some work in aged care. The two older children in due course became independent. In October 2010, IB (then 18) moved out of the family home, she says, by reason of Ms G's illnessdriven behaviour. In 2014, Ms G commenced building a new home. In September 2015, Ms G was again admitted to hospital in a situation of crisis. Thereafter, IB moved NG (then 19) out of the family home, initially into temporary accommodation. NG is now living with IB.
6 IB describes the development of a financial crisis in early 2016 as a result of mortgage default on the family home and associated repossession threats, in circumstances where the new home was incomplete. IB says that Ms G was unable to cope and it was necessary for her to intervene to forestall repossession action and to arrange for the urgent sale of the family home and a reverse mortgage on the new home to facilitate completion. Thereafter, the application to the Tribunal was made.
7 In the application document, the applicant refers to Ms G as suffering from a psychiatric condition 'bipolar condition (undiagnosed)'. She goes on to recite that:
[Ms G] has a long history of prescription drug and alcohol abuse and we believe she suffers from a complex mental health issue that is consistent with bipolar disorder. Although [Ms G] has never been formally diagnosed, she is under the care of a psychiatrist who prescribes her medication. ... [O]ver the last few years [Ms G's] ability to function has deteriorated[.] ... [Ms G] has been living alone for the last few months. ... [Ms G's] ability to make rational decisions is inextricably linked to her complex mental health issues and alcohol abuse, and she has become increasingly unstable since living alone. In the last few months she has made a suicide attempt using prescription medication and has made threats of taking her life as recently as last week.
[Ms G's] bipolar disorder directly affects her ability to make both every day and long term financial decisions. She suffers from violent shifts in mood which are reflective of her spending habits. During her low depressive moods [Ms G] will forgo purchasing food in order to drink heavily each night. During her manic phases she will spend all available funds rapidly and make impulsive financial decisions without thinking through the consequences. Her ability to function in daily life is also limited by her condition. Her animals, though very loved, are in poor condition with severe infections and her home is in a highly unsanitary condition. She is unable to plan and safely cook her meals and she does not maintain basic hygiene practices. [Ms G] is an otherwise compassionate, intelligent woman and there is no question that her situation is only a result of her mental disability.
8 The application refers to rapid shifts in mood and a state of mind that can change very quickly and to the fact that it is hard to discuss what the family feel is best for Ms G without her become abusive towards them. It is said that she refuses to allow family members to attend the appointments with her psychiatrist and that her only other attending clinician is a GP who has seen her only a handful of times. The family feel they have exhausted all other options, hence the application.
9 Ms G disputes both the alleged incapacity and the need for either an administration order or a guardianship order.
Relevant legislation
10 The primary concern of the Tribunal is the best interests of Ms G: s 4(2) of the Guardianship and Administration Act 1990 (WA) (GA Act).
11 In considering the application the Tribunal shall, as far as possible, seek to ascertain the views and wishes of Ms G as expressed, in whatever manner at the time, or as gathered from Ms G's previous actions: s 4(7) of the GA Act.
12 Ms G is presumed to be capable of looking after her own health and safety; making reasonable judgments in respect of matters relating to her person; managing her own affairs; and making reasonable judgments in respect of matters relating to her estate, until the contrary is proved to the satisfaction of the Tribunal: s 4(3) of the GA Act.
13 Under s 43(1)(b) of the GA Act, the Tribunal cannot consider appointing a guardian for Ms G unless it is satisfied on the evidence that she is incapable of looking after her own health and safety; is unable to make reasonable judgments in respect of matters relating to her person; or is in need of oversight care or control in the interests of her own health and safety or for the protection of others.
14 Under s 64(1)(a) of the GA Act the Tribunal cannot consider appointing an administrator of the estate of Ms G unless it is satisfied on the evidence that by reason of a mental disability, she is unable to make reasonable judgments in respect of matters relating to all or any part of her estate.
15 Mental disability is defined in s 3 of the GA Act to include an intellectual disability, a psychiatric condition, an acquired brain injury and dementia. It is to be noted that this is an inclusive definition rather than an exhaustive definition. It is therefore instructive to look further at the meaning of the words 'mental disability' in considering what else might be included in the definition. In accordance with the principles of statutory interpretation, the ordinary meaning of the words is relevant.
16 The Australian Oxford Dictionary (2nd ed, 2004) (Moore ed.) (The AOD) defines 'mental' as 'of or in the mind'. Similar definitions are contained in The Macquarie Dictionary (6th ed, 2013) (The MD) and Taber's Cyclopaedic Medical Dictionary (1989) (Taber's).
17 The AOD defines 'disability' as 'a lack of some asset, quality or attribute that prevents someone's doing something', and defines 'disable' as 'to render unable to function; or to deprive of ability'.
18 The MD defines 'disability' as 'a lack of competent power, strength or physical or mental ability' or as 'a particular physical or mental weakness or incapacity'.
19 Taber's defines 'disability' as meaning 'any restriction or lack of ability to perform an activity in the manner and within the range considered normal for a human being'.
20 This is to be compared with Taber's definition of 'mental disorder' which is 'an imprecise and general term that may be described as a clinically significant behaviour or psychological syndrome or pattern typically associated with a distressing symptom or impairment of function'.
21 Black's Law Dictionary (10th ed, 2009) (Garner ed.) defines 'disability' as 'an inability to perform some function' and, secondly, as 'an objectively measurable condition of impairment physical or mental that prevents a person from engaging'. Butterworth's Australian Legal Dictionary (1997) defines 'disability' as 'the total or partial loss of a person's mental or bodily functions' and as including 'a disorder that results in a person learning differently to a person without the disorder and a disorder that affects a person's thought processes, perceptions of reality, emotions or judgments or that results in disturbed behaviour'.
22 If a finding of incapacity is made in respect to Ms G, the Tribunal must further determine whether she is in need of guardianship and administration orders. If the needs of Ms G can be met in a manner less restrictive of her freedom of decision and action then orders should not be made: s 4(4), s 43(1)(c) and s 64(1)(b) of the GA Act.
23 If the Tribunal decides that Ms G is in need of guardianship and administration orders it must then decide what authority should be given to the guardian and administrator, who the guardian and administrator should be and what review date should be set, given the requirement that orders must be reviewed at least once every five years: s 43(1)(d), s 43(1)(e), s 44, s 45, s 64(1)(c), s 64(1)(d), s 68, s 69 and s 84 of the GA Act.
24 As to the authority given to a guardian, if a limited order is sufficient to meet the needs of Ms G then a plenary order should not be made. If limited guardianship and administration orders are made, the orders must place the least restriction necessary on Ms G: s 4(5) and s 4(6) of the GA Act.
The presumption of capacity
25 Section 4(3) of the GA Act provides that:
Every person shall be presumed to be capable of
(a) looking after his own health and safety;
(b) making reasonable judgments in respect of matters relating to his person;
(c) managing his own affairs; and
(d) making reasonable judgments in respect of matters relating to his estate,
until the contrary is proved to the satisfaction of the State Administrative Tribunal.
26 Section 43(1) of the GA Act provides that:
Subject to section 4, where the State Administrative Tribunal is satisfied that a person in respect of whom an application for a guardianship order is made under section 40
(a) has attained the age of 18 years;
(b) 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;
and
(c) is in need of a guardian,
the Tribunal may by order declare the person to be in need of a guardian, and if it does so shall appoint
(d) a person to be a plenary guardian or a limited guardian and, if it is expedient, a person to be an alternate guardian; or
(e) persons to be joint plenary guardians or joint limited guardians,
as the case may require, of the person in respect of whom the application is made.
27 Section 64(1) of the GA Act provides that:
Subject to section 4, where the State Administrative Tribunal is satisfied that a person in respect of whom an application for an administration order is made under section 40
(a) is unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all or any part of his estate; and
(b) is in need of an administrator of his estate,
the Tribunal may by order declare the person to be in need of an administrator of his estate, and if it does so shall appoint
(c) a person to be the administrator; or
(d) persons to be joint administrators,
as the case may require, of the estate of the person in respect of whom the application is made.
28 By reason of a submission made on behalf of Ms G, it is necessary to consider whether the presumption of capacity applies in all circumstances where a guardianship order is sought. The question arises in this way.
29 The language of s 4(3)(a) that is, capability to look after one's own health and safety, directly reflects the language of subsection (i) of s43(1)(b).
30 The language of s 4(3)(b), that is, capability of making reasonable judgments in respect of matters relating to once person, directly reflects the language of subsection (ii) of s 43(1)b.
31 The language of s 4(3)(d), that is, capability of making reasonable judgments in respect of matters relating to one's estate, directly reflects the language of subsection (a) of s 64(1) of the GA Act.
32 The language of s 4(3)(c), that is, capability of managing one's own affairs, is not directly reflected either s 43(1)(b) or s 64(1)(a) of the GA Act.
33 Nowhere in in the language of s 4(3) is there reflected the language of subsection (iii) of s 43(1)(b), that is, a person being in need of oversight, care or control in the interests of one's own health and safety or for the protection of others.
34 The submission made on behalf Ms G is that the presumption of capacity should be understood as applying to in all circumstances such that, unless there is sufficient medical evidence to displace the presumption, no order for guardianship should ever be made. The thrust of the submission is that the legislature could not have intended that a guardianship order be made for a capable person; that the interpretation of subsection (iii) of s 43(1)(b) of the GA Act as requiring only an objective finding of need for 'care' or 'oversight' or 'control' in the interests of a person's own 'health and safety' or for the 'protection' of others is so broad and potentially of application to so many people in the community that it could not have been what was intended by the legislature in the wording of the section.
35 The Tribunal does not agree with this submission. It is the Tribunal's view that, in accordance with the usual principles of statutory interpretation, it is required to assume that the subsection was intended to have meaning and to be interpreted by reference to the ordinary meaning of the words used in the subsection.
36 A consideration of the language of s 43(1)(b)(iii) of the GA Act clearly shows that it is quite differently cast to the other two subsections. As distinct from them, there is no reference in subsection (iii) to the person's ability or capability. In the view of the Tribunal, the subsection clearly anticipates an order based on the assessment by the Tribunal of a particular need regardless of the person's ability or capability or lack thereof. Stripped back, the words read
… where [the Tribunal] is satisfied that a person … is … in need of oversight, care or control in the interests of his own health and safety or for the protection of others … the Tribunal may … [appoint a guardian].
37 Further, it is clear that a person's capacity to look after his or her own health and safety has been adverted to specifically by the legislature in subsection (i). It can and should be assumed therefore that a further reference to matters pertaining specifically to the protection of a person's health and safety must having been intended to have a different meaning.
38 In the view of the Tribunal, the protective nature of the jurisdiction provides a basis for an interpretation that subsection (iii) was intended to provide a mechanism whereby, even if a person was capable of looking after their own health and safety (such that subsection (i) could not ground an order), in appropriate circumstances a guardianship order could be made for the provision of protective oversight or care or control if the interests of the person's health and safety, objectively assessed, requires it.
39 Indeed, although rarely used in this way, the Tribunal is of the view that the language of the section would allow a guardianship order to be made, in an appropriate case, to provide protection for a third party. Examples of where the Tribunal might use such a provision are in the protection of an unborn child and in the protection of a vulnerable elderly spouse or disabled dependent relative.
40 It might be asked, what is the relevance of s 4(3)(c). This subsection sets out a presumption that every person shall be presumed to be capable of managing his or her own affairs. What is the meaning of 'managing one's own affairs'? Where does this notion fit into the scheme of s 43 and s 64 of the GA Act? Again, it is the Tribunal's view that it is required to assume that the subsection was intended to have meaning and to be interpreted by reference to the ordinary meaning of the words contained in the subsection.
41 The MD relevantly defines 'affair[s]' as follows:
1. anything done or to be done; something that requires action or effort[.]
2. (pl) matters of interest or concern; particular doings or interests: [e.g.] put your affairs in order.
...
5. a private or personal concern; a special function, business or duty [e.g.] attend to your own affairs.
...
42 In the view of the Tribunal, 'affairs' is not limited to matters relating to a person's financial or legal estate but may include aspects of a person's private and personal life and concerns as well. There is nothing in the language of the section that would require it to be read less broadly than this.
43 The MD relevantly defines 'manage' as follows:
...
2. to take charge or care of: [e.g.] to manage an estate.
...
4. to handle, direct, govern or control in action or use.
,,,
8, to conduct affairs.
44 In the view of the Tribunal, 'manage' is a broader notion than 'making judgments' and carries with it the notion of acting upon or implementing the major decisions reached with a view to looking after the person or their estate more broadly. Undeniably, however, part of 'managing' is making the many and varied smaller choices and decisions along the way that will allow for such action or implementation.
45 As previously stated, the language of s 4(3)(c), that is, capability of managing one's own affairs, is not directly reflected either s 43(1)(b)(i) and (ii) or s 64(1)(a) of the GA Act, that is, in the subsections that are cast in terms of capability or ability. Nor is the language of s 4(3)(c) reflected in the language of subsection (iii) of s 43(1)(b) , that is, in the (only) subsection to be cast in terms of need rather than capability or ability. It is unclear exactly what s 4(3)(c) adds. There is a substantial degree of overlap between the notions of management and decisionmaking.
46 To the extent that it might be said to relate to financial affairs, in the view of the Tribunal, s 4(3)(c) does no more than potentially expand the language of the presumption in subsection.(iv) which links to subsection (a) of s 64(1) of the GA Act. The fact that s 4(3)(c) does not itself directly mirror a subsection in s 64 of the GA Act, does not in the Tribunal's view prevent such an interpretation.
47 To the extent that it might be said to relate to the management of personal affairs, in the view of the Tribunal, s 4(3)(c) does no more than potentially expand the language of the presumptions in subsections (i) and (ii) which link to subsections (i) and (ii) of s 43(1)(b) of the GA Act.
48 Whilst s 4(3)(c) may be seen as potentially adding something connected to determinations made under s 43(1)(b) (i) or (ii) or s 64(1)(a) of the GA Act, what it does not do is counter or displace the proposition that subsection (iii) of s 43(1)(b) clearly anticipates an order based on the assessment by the Tribunal of a particular need regardless of the person's capability to 'look after', 'make reasonable judgments about' or 'manage' something. In the view of the Tribunal, there is no connection between 4(3)(c) and s 43(1)(b)(iii) which in some way requires the Tribunal to make a finding of incapacity with respect to the person prior to or as well as finding a need for oversight care or control. In the view of the Tribunal, this provision s 4(3)(c) does not prevent the making of guardianship orders in appropriate cases to facilitate the protection of an otherwise capable person, and in appropriate (but rarer) cases, for the protection of another person.
Onus of proof
49 As a general principle, the burden of proving a fact that is in dispute rests with the party asserting it. That party bears the onus of satisfying the Tribunal that the fact should be accepted. However, as part of its protective jurisdiction under the GA Act, the Tribunal has an obligation, where necessary to probe the evidence and, where appropriate, to seek out other evidence. In this sense, a Tribunal hearing is an inquisitorial process rather than adversarial one just between two or more parties.
50 Section 32 of the State Administrative Tribunal Act 2004 (WA) (SAT Act), sets out the framework for evidence gathering in Tribunal proceedings. In particular, s 32(2) provides that:
The Evidence Act 1906 does not apply to the Tribunal's proceedings and the Tribunal
(a) is not bound by the rules of evidence or any practices or procedures applicable to courts of record, except to the extent that it adopts those rules, practices or procedures or the regulations or rules make them apply; and
(b) is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.
51 Section 32(4) of the SAT Act allows the Tribunal to inform itself on any matter as it sees fit. Further, s 32(7) places on the Tribunal an obligation to ensure that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in a proceeding.
52 Section 64(1) of the SAT Act gives the Tribunal the power to call on expert or professional assistance from a person with relevant knowledge or experience to assist it in relation to a proceeding before the Tribunal whether by providing advice or professional services or by giving evidence.
53 This section was specifically adverted to by Heenan J in the context of guardianship and administration proceedings in S v State Administrative Tribunal of Western Australia [No 2] [2012] WASC 306 (S). In that case there was a question as to whether or not there was any adequate medical evidence upon which a finding of incapacity could have been made. His Honour held at [88] that:
The need to act in the best interests of a person suspected of having a decision-making disability plainly required a proper medical examination, assessment and diagnosis conducted for the purposes of addressing the issues to be decided by SAT[.]
54 At [204] in S, His Honour went on to allow new evidence to be considered in the appeal:
... because of its relevance to the matters to be determined and because of the paucity of evidence on these points from qualified medical personnel at the original hearings when there was clearly a capacity and the need for that evidence to be obtained and utilised by the tribunal under s 64 of the SAT Act”
55 and further at [214]:
[T]his is clearly a case in which the tribunal erred in failing to exercise its power to obtain independent expert evidence or other medical evidence to assess the appellant's capacity and whether or not she suffered from any mental disability[.]
56 Having said that, it is not the role of the Tribunal to 'patch up' a deficiency or shortfall in evidence otherwise properly lead by a party, by entering upon a 'fishing expedition' to see whether additional material is available to achieve the result that an applicant is seeking.
57 In the Supreme Court of Western Australia appeal Polizzi v Commissioner for Police [2017] WASC 166 (Polizzi), Corboy J, citing the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152, stated at [54] that 'proceedings in an administrative tribunal are non-adversarial and the tribunal ''is not, and is not to adopt the position of, a contradictor'''.
58 As to the extent of the obligation on the Tribunal in this regard, as was adverted to in S at [96], in Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; (2010) 241 CLR 390, French CJ made the following observation in relation to the Consumer, Trader and Tenancy Tribunal of New South Wales established under the Consumer, Trader and Tenancy Tribunal Act 2001 (NSW) which contained similar provisions as to how the tribunal might inform itself, conduct its proceedings and be free from the rules of evidence.
[T]he exercise of the Tribunal's freedom from the rules of evidence should be subject to the cautionary observation of Evatt J in R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228, 256 that those rules 'represent the attempt made, through many generations, to evolve a method of inquiry best calculated to prevent error and elicit truth'. It is a method not to be set aside in favour of methods of inquiry which necessarily advantage one party and disadvantage another. On the other hand, that caution is not a mandate for allowing the rules of evidence, excluded by statute, to 'creep back through a domestic procedural rule' (footnotes omitted).
59 In Polizzi at [80], Corboy J, referring to these two cases, stated:
[T]he rules of evidence provide the conventional means by which the relevance and reliability of evidence is assessed; that is, the means by which a body of proof that has logical probative force is produced. The rules of evidence are part of the machinery by which a court ordinarily ensures that the parties receive a fair hearing in a system of justice that is essentially adversarial. Although proceedings in the Tribunal are inquisitorial in nature, the process by which the tribunal conducts a review hearing as many of the features of a contested hearing in an adversarial setting. That is reflected in some parts of s 32 of the SAT Act. However, that does not mean 'that the rules of evidence which have been excluded expressly by statute creep back through a domestic procedural rule': (Pochi v Minister for Immigration and Ethnic Affairs (1979) 36 FLR 482, 492 (Brennan J.)
60 It is a question of balance. Subject always to the overriding presumptions set out in s 4(2)(b) of the GA Act, the primary concern of the Tribunal in all cases must be the best interests of any represented person, or of a person in respect of whom an application is made (s 4 (2)(a) of the GA Act).
Burden of proof
61 Relevant law has recently been conveniently summarised by the Tribunal in GC [2017] WASAT 80 at [89] [92] as follows.
In S -v- State Administrative Tribunal of Western Australia [No 2] [2012] WASC 306 at [105], Heenan J said:
… I am satisfied that on any reasonable view the evidence before the single member, equivocal and untested as it was, did not justify any finding that a guardian should be appointed or that an administrator should be appointed in view of the seriousness of those allegations and the need for satisfactory proof to be established: Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34, 361 - 361. The more so is this the case when it is necessary for the evidence to displace the statutory presumption of capacity contained in s 4(3) of the G & A Act. The necessity for the contrary to be proved to the satisfaction of the SAT (s 4(3)) does not diminish the standard of proof or permit some standard less than the Briginshaw standard to be adopted and applied. This is because in the exercise of its functions, and in particular in determining whether or not a certain matter has been established to the satisfaction of the SAT, the tribunal is required to act in conformity with law which has addressed and established the standard of proof which must be discharged.
The Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 approach has been characterised as follows:
… That is, while needing to be proved only on the balance of probabilities, the nature and seriousness of the allegations are relevant to the question whether the issues are proved to the reasonable satisfaction of the Tribunal and the process by which reasonable satisfaction is attained. (Medical Board of Australia and Bowles [2014] WASAT 115 at [6])
This approach requires the Tribunal to 'feel an actual persuasion of the occurrence or existence of the relevant facts': Legal Profession Complaints Committee and A Legal Practitioner [2013] WASAT 37 at [16].
The Full Tribunal in GC and PC [2014] WASAT 10 said at [36]:
… The statutory presumption of capacity is a fundamental principle in the GA Act and serves to protect persons who are the subject of proceedings under the GA Act from having their decisionmaking capacity removed from them and a substitute decisionmaker appointed for them under the Act. Because of the significant consequences for an individual of having their decisionmaking capacity removed from them and a substitute decisionmaker appointed for them under the GA Act, clear and cogent evidence is required to rebut the statutory presumption of capacity. (Emphasis added)
Reports
GP Dr LDP
62 Dr LDP's report dated 5 September 2016 states Ms G suffers from a mental disability namely generalised anxiety which is improving.
63 He states he believes Ms G to have the cognitive capacity to make reasonable decisions in relation to her financial and legal affairs and to have the capacity to make reasonable decisions in relation to her personal decisionmaking (medical accommodation and services). He believes her capable of executing a power of attorney and the power of guardianship and of voting.
64 In a certificate dated 4 January 2017, Dr LDP confirms that he has been unsuccessful in finding a psychiatrist willing to provide a functional capacity assessment of Ms G as requested by the Tribunal through the Public Advocate
Former GP Prof SP
65 Prof SP's report dated 29 September 2016 says that the doctor has known Ms G since 2005, but has not seen her in the last year- indeed has not seen her since 7 July 2011 at which time there was no evidence noted of cognitive impairment.
Psychiatrist Prof S
66 In his report dated 7 August 2016, Prof S' evidence is, in summary, that:
• he has known Ms G since 1 October 2014; that he last saw her on 14 July 2016 and has seen her seven times in the previous 12 months;
• he has not conducted a cognitive capacity assessment on her, that is, it being not relevant;
• she suffers from a mental disability namely a major depressive disorder and panic disorder which disability is fluctuating; and
• he believes Ms G to have the cognitive capacity to make reasonable decisions in relation to her financial and legal affairs, to have the capacity to make reasonable decisions in relation to her medical treatment and in relation to services that she may require. He says he is unsure whether she has the capability to make reasonable decisions in relation to accommodation decisions. Hebelieves her to be capable of executing a power of attorney and power of guardianship and of voting.
67 In the accompanying letter (dated 10 August 2016) Prof S states in relation to Ms G:
[S]he does not have any of the cognitive problems that usually take people to the Tribunal. She came to me when it became necessary to get authorisation from the Health Department for a psychiatrist to supervise [her medication] of which she takes quite a small amount. She has admitted to unwise alcohol intake.
The diagnoses which I have been treating have been in the range of depression and anxiety which would not prevent her from managing her finances or affairs.
The Tribunal may wish to consider the submissions of the family which do suggest such incapacity although I cannot add a professional dimension to this. If the family's submissions are correct, it would more likely be related to a background of personality disorder beside actual psychiatric diagnoses which I have been treating [Tribunal emphasis]. I therefore suggest that the family's input rather than a psychiatric one could be the only information of use to the Tribunal.
68 In a further letter (18 January 2017) Prof S confirmed his view that Ms G is capable of managing her own health and safety as outlined in s 43(1)b(i), (ii) and (iii) of the GA Act. In relation to her ability to make financial judgments, he goes on to explain his approach to the treatment of her anxiety and depression. He rejects a diagnosis of bipolar disorder and then refers to his consideration of the information provided by the family in the context of a potential diagnosis of personality disorder. He notes that in his discussions with family, '[IB] was quite definite that such problems had occurred continuously through her mother's life and had caused distress both to herself and to others. [Ms G] disputed this suggestion emphasising her good points through her life such as putting her children through private schools'.
69 Prof S stated 'If we agree that [Ms G] satisfies these criteria despite her own objections, the question arises whether this has impaired her ability to manage her finances … If the Tribunal can be convinced that her habitual ways of functioning through her life have led to continuously bad financial decisions, then the decision for [administration] will be appropriate. I am not really in a position to assess the appropriateness of a person's financial decisions particularly when we have two rather differing views of the subject ...'.
Oral evidence
70 Prof S, who is an experienced consultant psychiatrist and whose expertise is not challenged, gave sworn oral evidence at the hearing. He confirmed that he has been treating Ms G since 1 October 2014; that he last saw her on 9 February 2017; and that he sees her approximately monthly. He described her diagnosis as one of depression which is fairly well controlled. He confirmed that he had considered and rejected several other diagnoses that had been raised with him by Ms G's family, particularly bipolar affective disorder and personality disorder. However, he confirmed that he had not made such diagnoses and that such diagnoses were not relevant to the treatment he was currently providing. In endeavouring to explain the nature of a personality disorder, Prof S referred to the notion of difference between people and, more particularly, the requirement for diagnosis that the degree of difference must cause sustained suffering either for the person or those around them before a personality disorder could be diagnosed. He advised that he had been provided with two very different sets of facts (by Ms G on the one hand and family members on the other). Prof S described Ms G as 'an unusual person' but he stated that there was not consistent evidence of continuous suffering having been caused by Ms G's way of being. In this respect also, the two versions of events were described by him as 'contradictory accounts'.
71 He confirmed that he had considered what had been said by the family. He conceded that if all that was said by the family was true, then a diagnosis of personality disorder was open to be made. He stated, however, that Ms G disputed much of what had been said by her family and, being unable to resolve the differing versions of events, he felt 'disinclined' to make that diagnosis. He confirmed that for a clinical diagnosis to be made of a personality disorder, ethically, it would require that the clinician himself to be satisfied of all matters supporting the diagnosis.
72 He went on to say that, even if he was persuaded that Ms G suffered from a personality disorder, that diagnosis on its own would not mean that she was incapable of making reasonable decisions about her personal and financial affairs. He stated that, in his experience, many persons with that diagnosis were well able to make decisions for themselves.
73 Prof S confirmed that he was unaware of the observation contained in the 1997 emergency department records from Sir Charles Gardner Hospital (to which the Tribunal had access) in which Ms G is described as exhibiting 'profound cluster B traits'. He stated that even if he had been aware of such a record, that it would not necessarily have an effect on his view about personality disorder diagnosis. He confirmed that he would need to see the evidence that had been presented at the time. He also expressed the view that 'such designations are often made in ED'.
74 Prof S did confirm that if a person aged 40 was correctly described as having profound cluster B traits, that would indicate that those traits had been present or developing for a long period of time, noting that such traits develop early and are continuous through life. Notwithstanding this, he confirmed that, on what he has seen of Ms G, he 'would not now make that designation', that is, of 'profound cluster B traits'.
75 In relation to the current diagnoses of depression and associated anxiety and panic disorder, Prof S confirmed that, in his opinion, none of these diagnoses rendered Ms G incapable of making her own competent decisions. He expressed the view that her conditions had 'no impact on her decisionmaking'. When asked whether being placed in stressful circumstances could, given her diagnosis, cause an impact on decisionmaking, his evidence was that this was not so 'in general'. He expressed the view that people in Ms G's circumstances are generally capable save 'in the most extreme circumstances'. He further expressed the view that Ms G's abuse of alcohol and other medications would have no bearing on her decisionmaking capacity, although he conceded that from time to time she might make unwise decisions when affected by substances.
76 Prof S confirmed that Ms G is dependent upon a medication called Xanax which he described as 'a treatment of sorts' for anxiety. He described his attempts to get control of this dependency by orthodox means. He rejected the notion that this dependency could itself affect Ms G's capacity. He confirmed her relatively low dose and his oversight of her intake. He rejected the notion that any of the behaviours or moods or difficulties described by the family could be put down to an adverse reaction to Xanax. He confirmed that he was unaware of Ms G misusing any other form of prescription medication.
77 In relation to her use of alcohol, Prof S confirmed that he was aware that Ms G was using alcohol unwisely. He indicated that he understood this was an intermittent issue which may on occasions cause Ms G to make bad decisions. He did not regard her alcohol consumption as a continuous disability. He confirmed that she was never intoxicated when he saw her. When it was put to him that others have described her as alcoholic, he confirmed that he had never formed the opinion that she had an uncontrollable drive to consume alcohol.
78 In relation to the impact of Ms G's depression and anxiety on her functioning, Prof S stated that there is a large degree of variation between patients in the effect that depression will have on functioning. He expressed the view that the 'usual' presentation for patients such as Ms G who are ambulant though depressed, is symptoms such as sadness, misery, feeling slowed up and anxiety symptoms. His evidence was that he 'wouldn't expect a serious impact on decisionmaking' from such symptoms.
79 He confirmed that behaviours such as retreating to bed and not attending to tasks, neglecting to pay bills and drinking a lot in attempts to ameliorate the misery of the condition are behaviours consistent with severe depression and are behaviours which could impact upon a person's financial situation. He rejected the suggestion that bursts of spending activity and unwise spending were part of the pattern of depression. His view rather was that the likely effect of depression is that a person has less energy for spending. He stated that he had not seen any of these behaviours in Ms G and it is noted that they are denied by Ms G. Prof S confirmed that depression likely impairs a person's ability to cope with stressors but his evidence was that he '[couldn't] see this reaction to stressors rendering a person with depression incapable of managing their financial affairs'. His view was that it was 'not in the nature of the illness'.
80 When questioned by counsel for Ms G, Prof S confirmed the views expressed in his report of 7 August 2016. He confirmed that he was unable to say why he expressed some uncertainty as to Ms G's capacity to make decisions about her own accommodation. He could only recall that at the time of the completion of the report there was some issue regarding her accommodation.
Lay evidence
81 The hearing was attended by Ms G and her counsel, NG, IB and IB's partner DE, and the representative from the Public Advocate's office. Prof S gave evidence by telephone.
82 The case presented by the applicant at the hearing consisted of oral evidence from IB and NB and some limited comment from DE. It also included written statements by all family members to whom reference has been made in these reasons, each speaking to the history and their respective concerns about Ms G and their observations and views as to Ms G's functioning, the assistance that she needs and her diminished capacity to make decisions for herself. It was acknowledged that no alternate medical evidence supporting the incapacity claims of the family is available.
The case presented by Ms G
83 Through her counsel, Ms G confirmed that she opposed the orders and disputed the claim that she was incapable or otherwise in need of an administrator or a guardian. Ms G also gave oral evidence.
The Public Advocate
84 The Public Advocate, in her report to the Tribunal dated 11 October 2016, submits that there is no medical evidence to suggest that Ms G is someone for whom a guardian could be appointed and is someone who can make her own accommodation decisions despite her children's contrary view. She submits that there are no grounds to make a guardianship order based on the medical evidence. The report confirms that the Public Advocate's representative shares the concerns of Ms G's children and confirms that their detailed submissions show, in the view of the Public Advocate, a history of inability in Ms G to be able to make reasonable financial decisions. IB's intervention in helping her mother obtain a reverse mortgage appeared to the Public Advocate to have been the only thing that prevented her house being repossessed. The report confirms that Ms G's children also advise of a link between her financial situation and her mood/panic/personality/anxiety disorder - when in financial strife, she increases calls to them, makes threats and demonstrates attention seeking behaviour. The Public Advocate submits that over the past year Ms G has made what in hindsight appears to be a poor decision to have her current property built. The report suggests that she was illequipped to manage the process, including the improving of further previous residences, selling and moving from her previous house, obtaining bridging finance and dealing with the real estate agents. What is unclear, in the view of the Public Advocate, is how much Ms G's mental disabilities contributed to this. The Public Advocate, in the report, expresses a shared concern about the risk to Ms G's estate and nominates the current risk factors to be that:
1) Ms G will continue to struggle to be able to live on her income and will accumulate debt including being unable to pay essential services; that without her children or extra income she may well not be able to pay her bills (risk of disconnection) and resort to payday loans which she will be even less likely to repay; debt collection could be the result and then the loss of her house and therefore accommodation;
2) Ms G may choose to sell her house and move to the UK; that this may not work out for her and she may end up spending most of the money resulting in a high risk of homelessness;
3) Ms G will relocate to a country away from many services and family include including psychiatric services; and
4) Ms G will sell her property and rent resulting in a high chance of spending all of her money and becoming homeless.
85 Regardless of the aforementioned risks, the submission from the Public Advocate is that the current medical evidence states that Ms G is capable of making her own reasonable financial decisions, that the presumption of capacity has not been overturned and that an administrator cannot be appointed; that leave should be given either to withdraw the application or that the administration application to be dismissed.
86 At the hearing, the Public Advocate's delegate (the delegate) in oral submissions noted the absence of a definitive diagnosis and also the inability of the Public Advocate to achieve a full psychiatric assessment. She noted her many long phone conversations with Ms G during all of which Ms G presented as very articulate. Notwithstanding these matters, and despite the recommendations contained in the earlier report, given all the other available information, the delegate expressed concern about Ms G's welfare and noted decisionmaking by her 'which appears to be impacting negatively on her'. She confirmed her concern that Ms G was troubled at times with depression and at times made decisions which 'were not rational', especially when she was intoxicated. In the circumstances, the delegate felt unable to make a recommendation to the Tribunal as to the appropriate outcome in Ms G's best interests.
87 The delegate confirmed that if appointed by the Tribunal, the Public Advocate would endeavour to work with Ms G to achieve an improvement in her circumstances.
Consideration
88 In this proceeding, the Tribunal had before it evidence from Ms G's current treating psychiatrist and her current GP. Early in the proceedings, with the acquiescence of Ms G, through the Public Advocate, attempts were made by Ms G's GP, Dr LDP, to arrange for a further comprehensive psychiatric assessment to be undertaken. For reasons that were never made entirely clear to the Tribunal, despite his many attempts, a suitable second opinion psychiatrist could not be arranged for Ms G by Dr LDP. However, the fact of the matter is that, in these proceedings, the Tribunal had before it appropriately led evidence from Ms G's current treating psychiatrist Prof S and her current GP. Prof S gave sworn evidence and he was questioned at some length by the Tribunal. The applicant, though given the opportunity to question Prof S, did not do so to any significant extent. In the circumstances, it is the Tribunal's view that, despite the absence of a second opinion psychiatric report (which may have further informed the Tribunal), it had met it obligations as discussed by Heenan J in S. By reason of the evidence of Prof S, specifically directed as it was to the questions of diagnosis and capacity, notwithstanding that the applicant may not have been happy with his conclusions, the Tribunal was entitled to conclude that it had before it appropriate evidence of 'a proper medical examination, assessment and diagnosis conducted for the purposes of addressing the issues to be decided by [the Tribunal]' and that it accordingly had met any inquisitorial obligations that might be said to fall upon it in '[acting] in the best interests of a person suspected of having a decision-making disability'.
89 The first question for the Tribunal is whether Ms G is a person for whom orders could be made.
Administration
90 The Tribunal is not satisfied on the evidence that Ms G is unable to make reasonable judgments in respect of matters relating to all or any part of her estate.
91 To the contrary, the uncontroverted evidence of both Dr LDP and Prof S is to the effect that Ms G is capable. We accept this evidence. We place particular weight upon the evidence of Prof S, as a specialist psychiatrist who has been treating Ms G for a number of years and who not only prepared reports for the Tribunal but attended the hearing and gave sworn evidence upon which he was questioned by the Tribunal. His evidence was not directly challenged by the family members at the hearing. Notwithstanding the concerns raised by the family of which he is aware, Prof S's clear view is that Ms G is capable and that her diagnoses do not render her incapable of managing her affairs.
92 That being the case, as the criteria set out in s 64(1)(a) of the GA Act have not been met, Ms G is not a person for whom an administration order can be made.
Guardianship
93 As to whether or not or not Ms G is a person for whom a guardianship order can be made, it is necessary for the Tribunal to look further than the question of capacity to make reasonable judgments. Section 43(1)(b) of the GA Act provides that even if Ms G is capable of making reasonable judgments, if the Tribunal is satisfied that Ms G is incapable of looking after her own health and safety or is in need of oversight care or control in the interests of her own health and safety or for the protection of others, a guardianship order could be made if an appropriate need is identified.
94 In relation to these questions, we have formed the view that there is a need for oversight in the interests of Ms G's health and safety and that there is a need for a guardian to play a limited role.
95 In relation to this matter we have taken into account the information in the written hospital records that are in evidence and the evidence from the family members regarding the recent events including selfharm attempts and the apparent deterioration in Ms G's health and selfcare.
The hospital records
96 The objective evidence from the 2017 hospital admission records supports the proposition that Ms G is at times incapable of looking after her own health and safety. That evidence may be summarised as follows:
1) In early 1997, after the move to the wheatbelt, Ms G had an admission to hospital following an overdose of medication.
2) In October 1997, after her separation from her husband, she had a two week admission to a psychiatric hospital ward. No major depression was diagnosed but 'profound cluster B traits' were noted.
3) In May 2013, Ms G had an emergency department admission relating to Xanax withdrawal problems.
4) In September 2015, Ms G was admitted to hospital after a 'multidrug' overdose attempt following her exclusion from a family wedding described in the doctor's report as a 'situational' crisis. The ambulance records show a stated suicide intent and an admission by Ms G that she had been stockpiling pills not regularly taken 'in case she wanted to kill herself'.
5) On 28 July 2017, Ms G had an emergency department admission via ambulance after a prior fall when intoxicated. Her rib cage was badly bruised and breathing was causing pain. (IB notes that Ms G had sent a phone text message 'too many painkillers' to her a few hours earlier).
6) On 29 January 2017, Ms G had an emergency department admission via ambulance after overdose. She was found unconscious on the front lawn of her home by a passerby. She was rousable but incoherent. She was noted to be heavily intoxicated, covered in mud and with a big bruise on her left flank. She admitted to taking 30 Alprozolam (benzodiazepine) tablets and drinking wine. It is recorded that Ms G 'was expressing suicidal ideation' to IB the previous day. (IB notes that Ms G had sent a phone text message 'hundred and 50 pills and 2L of wine' to her a few hours earlier; that the neighbours advised her that they have called the police on several occasions due to harassment; and that police have advised her that Ms G has a 'police mental health file' from other 'recent incidents').
The family evidence
97 The position of the family is that over the last few years, Ms G's ability to function has deteriorated: that she has been living alone since September 2015 and that she has become increasingly unstable in that time; that she has made three suicide attempts using prescription medication in that time and has made multiple threats of taking her life; that she is drinking heavily and will forgo food in order to do so; that her ability to function in daily life is also limited by her condition; that she is unable to plan and safely cook meals and that the family have been assisting with this; that her pet animals, though very loved, are in poor condition with severe infections and her home is in a highly unsanitary condition; and that she does not maintain basic hygiene practices. They concede that some things have improved since the Public Trustee has been managing the finances under the s 65 order but the fear is that if this order is revoked, things will go back to how they were. Indeed, the submission is that more is needed. They point to the events leading to the two recent hospitalisations. They feel that Ms G needs to be cared for in in supported accommodation where care and a greater degree of support can be provided and limits put in place to prevent the level of drinking and drug abuse so as to keep Ms G safe. They feel that the situation is escalating. The family say that they have done all that they can do to support Ms G but are limited in what else they can do. It appears that Ms G's receptiveness to their help varies. IB confirmed that at times interactions can be pleasant but at other times not. By way of example, she advised that two weeks prior to the hearing she had had to put a block on Ms G's access to her mobile phone because of the high number of calls that she was getting. The families provided details of alleged conflict between Ms G and her neighbours which they say is escalating and which has recently included threats and has required police involvement.
Ms G's position
98 Ms G disputes all of the allegations of her family. In response, she says that things began to 'go badly wrong' in financial terms about two years ago following her decision to downsize (by building a smaller, new house and selling the family home). Her plan had been to free up capital to support herself. She points to a combination of factors including the cessation of child support payments from her husband (upon NG attaining 18 years) and maintenance issues on the family home (which she described as suddenly seeming to 'fall apart') as having created financial pressure. She was unclear on how she would have managed the crisis but claimed that IB had 'taken over' the situation. She disputes being extravagant or erratic with money. She disputes that she is unable to care for herself properly. She describes a life after divorce, starting off with four small children, a key start mortgage, a car loan and limited maintenance and describes managing things so as to be able to raise four children appropriately, pay off her debts and to afford proper care and a good education for them, albeit with some financial assistance from her wider family. She says that prior to the decision to downsize, she managed perfectly well. She claims that she is able to manage perfectly well now.
99 Ms G points to a stressful and upsetting family matter and the bank pressures at the time as having precipitated her hospital admission in 2016, and to the stress and upset of the Tribunal proceedings instituted by her children and of the takeover of her affairs by the Public Trustee pursuant to the s 65 order as having precipitated the more recent hospital admissions. She claims to have been unhappy and shocked and to the circumstances as having been 'not good for my anxiety'.
100 Ms G concedes that she drinks too much but claims to only do so at home and at night. She concedes that there have been disputes with her neighbours but claims that they are the ones at fault. In relation to the circumstances of the last hospital admission, she claims to have been assaulted by one of her neighbours in her garden and that it was this assault that rendered her unconscious outside her home.
101 Ms G gave evidence that, in view of the events that have occurred in recent times, she wishes to sell up and relocate back to the UK where, being a UK citizen, she says she is entitled to a pension and to other benefits. She claims notwithstanding the length of time that she has remained living in Australia, to still have friends and supports there. She described herself as 'very depressed' but as a resilient person; she said that she has problems but that she will deal with them.
Findings
102 The Tribunal finds that the evidence from the family supports the proposition that Ms G's selfcare and nutrition is often inadequate; that she regularly threatens to self-harm and at times, actually selfharms by misuse of prescription medication; that she at times drinks to a point where her health and safety are at risk. These matters demonstrate to the satisfaction of the Tribunal that Ms G is in need of oversight and care in the interests of her own health and safety.
103 Although these matters are disputed by Ms G, the Tribunal accepts that the evidence from family members is credible and plausible. It is, to some extent, corroborated by the hospital evidence. The Tribunal accepts that the evidence is given out of care and concern for Ms G. There can be no other logical motive. Ms G seems to be of the view that their evidence is born of dislike for her. The Tribunal rejects this. If Ms G's children did not care for her, the logical thing for them to do would be to walk away, rather than to initiate, at some personal cost to themselves, what were always going to be contested guardianship proceedings in the Tribunal. The hearing caused distress to many of those present. The observable distress exhibited by Ms G's children, in particular their distress at witnessing their mother's distress in the hearing, supports the finding that their concern for her is genuine. The Tribunal accepts their evidence as to the need for some support and assistance to Ms G.
104 The Tribunal declares that Ms G is currently in need of oversight and care in the interests of her own health and safety.
105 Attempts by family members to intervene and assist Ms G have, sadly, not been successful. There appears to be no less restrictive alternative mechanism available to ameliorate the risks to Ms G's health and safety.
106 We are satisfied that some oversight of Ms G's current situation and some intervention by a guardian is in order at least for a short period. That can best be achieved by the appointment of the Public Advocate as guardian with authority to consider and then implement supports and services that might be able to be put in place, at least on a trial basis, to assist Ms G and to support her at home and in the management of her alcohol and drug consumption, in an attempt to keep her safe and to improve her quality of life. It is acknowledged that such measures will only succeed if a rapport can be developed and if Ms G is prepared to work with the guardian. Nonetheless, in the interests of her health and safety, the Tribunal is of the view that this course should be tried.
107 A plenary order is not needed. Ms G is housed and she is accessing appropriate medical support appropriately. We are told she is looking at addiction services with a view to seeking some help.
108 There has been some consideration of a family member taking on the role, however, given the events to this point and the history, the Tribunal takes the view that an independent appointment is required. The Tribunal accepts that the family is entirely well motivated in bringing the application. Ms G's family relationships are her only current supportive relationships and need to be preserved and fostered if at all possible. We consider that the appointment of a family member in the role of guardian would not it not be in Ms G's interests given Ms G's resistance to notion of having a guardian. Imposing such a responsibility on a family member given this would not, in the view of the Tribunal, be constructive.
Orders
The Tribunal declares that the represented person [Ms G]:
(a) is in need of oversight and care in the interests of her own health and safety; and
(b) is in need of a guardian,
and the Tribunal orders that:
1. The Public Advocate of David Malcolm Justice Centre, Level 23, 28 Barrack Street, Perth, Western Australia be appointed limited guardian of the represented person[Ms G] with the following functions:
(a) To determine the services to which [Ms G] should have access
2. The Tribunal approves delegation by the Public Advocate of her functions as guardian of the represented person[Ms G] to an officer or employee employed in the Office of the Public Advocate.
3. The guardianship order is to be reviewed by 17 March 2018.
I certify that this and the preceding [108] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS H LESLIE, MEMBER
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