NHU (Administrator)

[2011] TASGAB 2

GUARDIANSHIP AND ADMINISTRATION BOARD
HOBART

NHU – An Application by the Community Forensic Mental Health Service for the Appointment of an Administrator

Neutral citation: NHU (Administrator) [2011] TASGAB 2

REASONS FOR DECISION

Anita Smith (President)

Administration – incapacity to make reasonable financial judgments – history of homelessness, illicit drug use, resorting to crime – need for an administrator

Guardianship and Administration Act 1995 – Section 51

1. NHU was at the time of the application and hearing resident at the Wilfred Lopes Centre pursuant to an order made under the Mental Health Act 1996.  The Community Forensic Mental Health Service has applied for the appointment of an administrator to address NHU’s recent homelessness by consistently paying rent, limit frivolous spending and reduce his access to illicit drugs thereby promoting his recovery.  NHU believes that he has achieved a level of self-discipline that means that such protective measures are now unnecessary. 

2. In assessing an application for the appointment of an administrator the Board must be satisfied of the following matters:

   (a) that NHU is a person with a disability, and

   (b) that he is unable by reason of his disability to make reasonable judgements in respect of his estate, and

   (c) that he is in need of an administrator of his estate.

3. These matters were address in an application dated 1 October 2010 and tested in a hearing at the Wilfred Lopes Centre which commenced on 13 December 2010.  NHU sought an adjournment on the first occasion because he was expecting a solicitor from the Legal Aid Commission to attend on his behalf.  The matter was adjourned to 15 December, however the Commission confirmed in the interim that aid had not been granted and therefore no representation was available.  NHU attended on both occasions as did three staff of the Wilfred Lopes Centre including his case manager, Joshua. 

4. The application was supported by a Health Care Professional Report (HCPR) completed by Dr Andris Kalnins dated 30 September 2010. Dr Kalnins indicated in that report that NHU has schizophrenia which is a disability within the meaning of section 3 of the Guardianship and Administration Act 1995. 

5. In Dr Kalnins’ view, as expressed in the HCPR, NHU’s disability and incapacity to make reasonable financial judgments was linked to his current homelessness.   Dr Kalnins stated that his capacity to make reasonable decisions about his real or personal property is influenced by his psychotic state and renders him unable to plan in a reasonable manner.  Dr Kalinin’s’ reported that the disability affects NHU’s ability to manage day to day financial requirements such as operating a bank account or to make more significant financial decisions.

6. According to the application, NHU has been homeless since he was 12 or 13 years of age.  He is described as an impulsive spender, at times preferring to spend his money on illicit drugs rather than essentials.  Sadly the application also notes that at times a lack of money has inspired him towards aggression and to commit crimes for which he has been charged and found guilty.  An inability to consistently pay rent has contributed to his long term homelessness. 

7. The applicant notes the if NHU’s money is controlled he will achieve stable accommodation and have less access to illicit drugs both of which are important factors for his recovery from mental illness.  The above evidence relating to the issues whether NHU has disability and whether that makes him incapable of making reasonable judgments about his estate also relate to the question of whether he needs an administrator.  At the hearing, NHU’s case manager mentioned a “Sit, Stay” program through Housing Tasmania that could be available to NHU if his rent was reliably paid.  The application also notes that NHU shows good responses to treatment when it is consistently applied and has prospects for a fruitful recovery including plans for study at University and hopes to meet a girlfriend.  

8. In the hearing the applicant noted that during the past year, NHU accessed an advance payment of approximately $1000.00 from Centrelink which were spent on drugs.  The use of these drugs had an extremely negative effect upon NHU’s mental state.  The applicant was concerned that having been incarcerated at the Centre for some period NHU has amassed a significant amount of unspent income from benefits.  If he has unlimited access to those funds immediately upon discharge it would present a significant temptation to purchase more drugs and undo any positive effects of the period of incarceration without drugs. 

9. NHU presented his case very well in the hearing.  He was polite and respectful and appears to be an intelligent and thoughtful person.  He disputed the diagnosis of schizophrenia and stated that he had suffered drug induced psychosis and, because he no longer takes drugs, he is no longer subject to psychosis. 

10. NHU stated that he would take up Tai Chi and Yoga which will assist him to remain drug free, increase his capacity to pay rent and spend wisely and reduce any need for an administrator.  He noted that his last experience of drugs was very unpleasant and he had no intention of repeating it. He also expressed an interest in learning a trade such as bricklaying or plumbing.  He denied the extent of his alleged history of homelessness and believed that he could find accommodation from the private rental market.  In discussing a major debt to Telstra, NHU noted his intention to go bankrupt.

11. At the conclusion of the evidence on 15 December there was a fundamental conflict in the evidence between Dr Kalnins’ report and NHU’s assertions.  As Dr Kalnins’ report did not address the question of drug induced psychosis and as Dr Kalnins was not available on the second hearing date, the Board adjourned to seek further written clarification from Dr Kalnins.

12. Dr Kalnins responded on 20 December 2010 by email to questions posed by the Board. Both the questions and Dr Kalnins’ response were provided to NHU with an opportunity to comment in writing which he took up.

13. Dr Kalnins noted that NHU has a history of drug abuse since the age of 13.  Dr Kalnins noted a growing body of evidence that early substance abuse during teenage years has a long term effect on the development of schizophrenia.  While NHU’s initial psychotic episodes may have been drug induced, he now presents as having a psychotic illness even when not using drugs.  He noted an improvement in NHU’s mental state since he had been receiving consistent treatment at the Centre.  He did not express any faith that mere abstinence from illicit drugs would be a sufficient treatment for NHU’s condition.

14. NHU’s response to Dr Kalnins’ email was consistent with the statements that he made in the hearing.   The Board was satisfied on the basis of Dr Kalnins’ evidence that NHU has schizophrenia.  The Board was also satisfied that as a result of his disability, NHU is incapable of making consistent and sustained reasonable financial judgments necessary to promote a safe existence outside of the Wilfred Lopes Centre.

15. Having taken into account all on NHU’s statements at the hearing, the Board was satisfied that his desire to live a better life is genuine.  However he underestimates the powerful effect that an immediate past history of drug dependence and having a psychotic illness can have upon the very best of intentions.  The Board was satisfied that the appointment of an administrator is necessary for NHU.

Conclusion:

After hearing an application by Forensic Mental Health Service in respect of NHU (hereinafter called the ‘represented person’)

The Board was satisfied that the represented person

• is a person with a disability, and

• is unable by reason of the disability to make reasonable judgements in respect of his estate, and

• is in need of an administrator;

THE BOARD ORDERS

1. That The Public Trustee be appointed as the represented person’s administrator.

2. That the powers and duties of the administrator be those conferred by Division 4 of Part 7 of the Guardianship and Administration Act 1995.

3. That the administration order remains in effect to 20 December 2013.

Anita Smith

PRESIDENT