N
[2019] WASAT 134
•13 DECEMBER 2019
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: N [2019] WASAT 134
MEMBER: JUDGE T SHARP, DEPUTY PRESIDENT
MR D AITKEN, SENIOR MEMBER
MS M DEAN, SENIOR SESSIONAL MEMBER
HEARD: 31 JULY 2019 AND 9 SEPTEMBER 2019
DELIVERED : 13 DECEMBER 2019
FILE NO/S: GAA 1493 of 2019
GAA 1662 of 2019
N
Represented Person
Catchwords:
Guardianship and administration - Need for a guardian - Need for an administrator - Less restrictive alternative
Legislation:
Guardianship and Administration Act 1990 (WA), s 4(2), s 4(3), s 4(4), s 4(5), s 4(6), s 4(7), s 17A, s 43(1)(b), s 43(1)(c), s 64(1)(a), s 64(1)(b), s 84
State Administrative Tribunal Act 2004 (WA), s 27(1), s 27(2), s 32
Result:
Decisions under review revoked
Category: B
Representation:
Counsel:
| Represented Person | : | In Person |
Solicitors:
| Represented Person | : | N/A |
Case(s) referred to in decision(s):
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Application
The matter concerns the represented person N. It came before the Tribunal by way of two applications, both from F, N's brother. The first application was lodged on 2 May 2019 (first application) and the second lodged on 19 May 2019 (second application).
The first application and the second application are both made under s 17A of the Guardianship and Administration Act 1990 (WA) (GA Act). The first application is for a review of a decision made by a single Member of the Tribunal on 5 February 2019 to appoint the Public Advocate as limited guardian of N. The second application is for a review of a decision made by a single Member on 30 April 2019 to appoint the Public Trustee as administrator of N's estate.
The matter was heard over two days, on 31 July 2019 and 9 September 2019 respectively. At the end of the hearing, on 9 September 2019, the Tribunal reached and gave its decision, which in summary was to revoke those decisions of the Member. The Tribunal gave its reasons for its decision orally at the hearing.
Following the Tribunal's decision, one of the medical professionals who gave evidence at the hearing requested written reasons for the decision. The medical professional concerned, Dr LW, informed the Tribunal by email dated 15 November 2019 that '[i]t is crucial that I understand the [Tribunal's] reasoning about why the guardianship and administration orders were revoked so as to incorporate this into any further thinking about [N's] future care options'.
The Tribunal has decided that it is appropriate to publish the reasons for its decision and these are those reasons.
Nature of the review
Section 17A of the GA Act provides that when the Tribunal constituted by one member makes any determination, a party aggrieved by that determination may request the President of the Tribunal to arrange for a Full Tribunal to review that determination. A Full Tribunal comprises the President or a Deputy President, sitting with two other Members.
A review under s 17A of the GA Act involves a fresh consideration of the matters that were before the single Member and of any new material whether or not it existed at the time of the original decision; s 27(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act). The purpose of the review is 'to produce the correct and preferable decision at the time of the decision upon the review'; s 27(2) of the SAT Act.
Section 4 of the GA Act provides that certain principles are to be observed in a proceeding under the GA Act, and we will set out those principles shortly.
Section 32 of the SAT Act provides that the Tribunal is bound by the rules of natural justice, shall act according to equity, good conscience and the substantial merits of the case, without regard to technicalities and legal forms. The Tribunal is not bound by the rules of evidence, but may inform itself on any matter in such a manner as it thinks fit.
Proceedings in the Tribunal
The hearing on the first day was attended by N, F and a representative of the Public Advocate.
It soon became apparent that F's applications were made on the primary basis that F is of the view that N does in fact have the capacity to make his own personal decisions and decisions concerning his estate. The hearing was accordingly adjourned to 9 September 2019 in order for the medical professionals involved in N's care and treatment to attend.
When the hearing resumed on 9 September 2019, N and F were again in attendance, as were representatives of the Public Advocate. Also in attendance, either in person or by telephone, were Dr BM, Dr LW and Dr KW, all psychiatrists and Ms TL, a clinical psychologist.
Dr BM saw N on 9 July 2019 for a 'capacity assessment' upon referral by N's general practitioner. Dr LW had seen N on a number of occasions, mostly during 2018. Dr KW was, at the time when he gave his evidence, the treating psychiatrist of N. Ms TL was also a member of N's treating team.
The decision under review
The decision under review made by the Member on 5 February is set out in the Tribunal's orders as follows:
The Tribunal declares that [N]:
(a)is unable by reason of a mental disability to make reasonable judgments in respect of matters relating to all of his estate; and
(b)is in need of an administrator of his estate;
(c)is unable to make reasonable judgments in respect of matters relating to his person;
(d)is in need of a guardian.
The Tribunal orders that the Public Advocate be appointed limited guardian of [N] with the following functions:
(a)to decide where [N] is to live, whether permanently or temporarily;
(b)to decide with whom [N] is to live;
(c)subject to Division 3 of Pt 5 of the GA Act, to make treatment decisions for [N]; and
(d)to determine the services to which [N] should have access.
The decision under review made by the Member on 30 April 2019 is set out in the Tribunal's orders as follows:
The Tribunal declares that [N] is:
(a)unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all of his estate; and
(b)is in need of an administrator of his estate.
The Tribunal orders that:
1.The Public Trustee is appointed plenary administrator of [N]'s estate with all the powers and duties conferred by the [GA Act].
Both orders are to be reviewed by 5 February 2024.
Principles to be observed
As we have already mentioned, it is a requirement of the GA Act in a proceeding of this kind that the Tribunal observes a number of principles.
In this part of these reasons, when we refer to section numbers, we are referring to a section number of the GA Act.
The primary concern of the Tribunal is the best interests of N; s 4(2).
N does not need to prove that he has capacity. N is presumed to be capable of looking after his own health and safety, making reasonable judgments in respect of matters relating to his person, managing his own affairs and making reasonable judgments in respect of matters relating to his estate, until the contrary is proved to the satisfaction of the Tribunal; s 4(3).
In considering any matter relating to a represented person, the Tribunal shall, as far as possible, seek to ascertain the views and wishes of the person concerned as expressed, in whatever manner, at the time, or as gathered from the person's previous actions; s 4(7).
Guardianship and administration orders shall not be made if the needs of the person concerned could in our opinion be met by a less restrictive alternative; s 4(4).
Also, the Tribunal cannot appoint a plenary guardian if the needs of the person concerned could in our opinion be met instead by the appointment of a limited guardian; s 4(5).
Even if the Tribunal appoints a limited guardian or an administrator, it must be in terms that, in our opinion, impose the least restrictions possible on the persons freedom of decision and action; s 4(6).
Matters to be considered by the Tribunal
There were in effect four issues before the Tribunal:
Is N someone for whom a guardian or an administrator can be appointed?
Under s 43(1)(b) of the GA Act, the Tribunal cannot consider appointing a guardian for N unless it is first satisfied on the evidence before it that N is incapable of looking after his own health and safety or is unable to make reasonable judgments in respect of matters relating to his person or is in need of oversight, care or control in the interests of his own health and safety or for the protection of others.
Similarly, under s 64(1)(a) of the GA Act, the Tribunal cannot consider appointing an administrator of N's estate unless it is satisfied on the evidence before it that, by reason of a mental disability, N is unable to make reasonable judgments in respect of matters relating to all or any part of his estate.
Is N someone in need of a guardian or an administrator?
If the Tribunal finds that N is a person for whom guardianship and administration orders can be made, the Tribunal must then determine whether N is in need of such orders. Even if N is someone for whom a guardian or administrator can be appointed, if the needs of N can be met in a manner less restrictive of his freedom of decision and action, then orders should not be made; s 43(1)(c), s 64(1)(b) and s 4(4) of the GA Act.
Who should be appointed guardian and/or administrator for N?
If the Tribunal finds that N is a person for whom guardianship and administration orders can be made and that he is in need of a guardian or an administrator or both, it must then decide who the guardian and the administrator should be and what authorities should be given to the guardian and to the administrator.
Review date
Further, the Tribunal must decide what review date should be set, given the requirement that orders must be reviewed at least once every five years; s 84 of the GA Act.
Materials and evidence before the Tribunal
In addition to the oral evidence given to the Tribunal by Dr BM, Dr LW, Dr KW and Ms TL, the Tribunal had before it numerous written reports about N, including:
(1)a report from Dr LW dated 31 July 2018;
(2)a report from Ms TL dated 6 February 2019;
(3)a report from Dr NM dated 12 June 2019;
(4)a report from Dr BM dated 9 July 2019; and
(5)a report from Dr RY dated 26 July 2019.
Dr RY is the general practitioner who had referred N to Dr BM, a geriatric specialist, for further assessment.
Dr NM is a general practitioner who saw N on 12 June 2019.
The Tribunal also had the benefit of reports from the Public Advocate and from the Public Trustee.
The Tribunal considered and took into account the evidence before it, including all of these reports.
Is the Tribunal satisfied that N is incapable of looking after his own health and safety and managing his own affairs?
It is accepted by the medical professionals, and the Tribunal found, that N has been diagnosed with schizoaffective disorder and also suffers from significant anxiety. However, Dr BM, with Dr LW agreeing, considers that N does not have significant cognitive impairment.
Dr KW and Ms TL, on the other hand, disagreed with the latter assessment. Ms TL said that she conducted 'a more extensive assessment that involved tests or assessments that look at executive functioning'; ts 37, 9 September 2019. She went on to say that she considered that N's results 'were well below expectation comparing to what we would expect for someone with his sort of educational and occupational background'; ts 37, 9 September 2019.
Dr RY in his report dated 26 July 2019 says that N 'is fit to decide for himself who should be his guardian and administrator', echoing the point made by Dr BM in his report of 9 July 2019. The Tribunal questioned Dr BM about this at the hearing. The Tribunal asked Dr BM whether, when expressing that view, he was in fact opining that N was a person for whom a guardian can be appointed but nonetheless was a person who had limited capacity to have input into who should take on that role. Alternatively, the Tribunal asked, was he offering the opinion that N had the capacity to sign an enduring power of guardianship if he so wished?
Dr BM confirmed that it is the latter; ts 36, 9 September 2019.
Dr BM makes the point that, simply because N has complex care needs, that does not necessarily mean that he lacks capacity; ts 40, 9 September 2019. Dr LW agreed with that observation; ts 42, 9 September 2019.
Dr LW on the other hand considers that while N is capable of dealing with simple decisions, he is not capable of making complex decisions'; ts 38, 9 September 2019.
Dr LW continues to maintain that N is a person for whom a guardian and administrator can be appointed; ts 44, 9 September 2019.
Dr KW, on the other hand, considers that N simply 'needs someone to support him in decision-making'; ts 44, 9 September 2019.
Views and wishes of N
N made it emphatically clear to the Tribunal that his position is that he does not need a guardian or an administrator but stated that if a guardian or an administrator or both were to be appointed then he would like F to take on both of those roles.
We took those wishes into account when reaching our decision.
The Tribunal's decision upon this review
After the Tribunal had considered the evidence from the medical professionals, there was still clearly a question as to whether or not the presumption of N's capacity to look after his own health and safety, to make reasonable judgments in respect of matters relating to his person and to managing his own affairs had been rebutted. However, the Tribunal did not consider that it was necessary to make a finding with regard to these matters because, even if that presumption has been rebutted, the Tribunal considered that there would still be no need for the appointment of a guardian or an administrator.
The Tribunal is satisfied that N is capable of making simple decisions with regard to his person and his estate. The Tribunal accepts that N may not be capable of making more complex decisions but the evidence on this point was equivocal. It is unnecessary, in any event, to make a finding on this point. The reason for this is that, irrespective of whether N is a person for whom a guardian or an administrator can be appointed, the Tribunal concluded that there is no need for such appointments. The Tribunal considers that N's needs can be met by a less restrictive alternative namely to make his own decisions with the assistance and support that is available to him.
N's financial affairs are not complex. His income comprises almost entirely a disability pension and his assets at the time of the hearing were some $25,000 in cash and a house in an outer suburb of Perth.
He lives in assisted accommodation and most of the necessary services are provided with that accommodation. He is subject to oversight within the facility and medical services are available.
The only major decision about N in contemplation is his future accommodation needs, and in particular whether it is in his interests to move back into his own home.
The applicant F, N's brother, has told the Tribunal that he is prepared to assist and support N in making these and other decisions, not as his guardian or as his administrator, but as his brother. The Tribunal is also satisfied that advice concerning N, particularly his accommodation, will be willingly provided by the medical professions with whom N regularly consults.
The Tribunal is satisfied that N's needs can be met by this less restrictive alternative and accordingly has decided that the orders appointing a guardian and an administrator should be revoked.
Orders
1.The guardianship order of the Tribunal dated 5 February 2019 is revoked.
2.The administration order of the Tribunal dated 30 April 2019 is revoked.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
JUDGE T SHARP, DEPUTY PRESIDENT
13 DECEMBER 2019
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