NJH - [2018] WASAT 62

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION:   NJH [2018] WASAT 62
MEMBER:   SENIOR MEMBER J MANSVELD
HEARD:   9 APRIL 2018 AND 17 MAY 2018
DELIVERED          :   12 JULY 2018
FILE NO/S:   GAA 516 of 2018
BETWEEN:   NJH
Represented Person

Catchwords:

Guardianship and administration - Presumption of capacity - Neuropsychological assessment - Cognitive deficits - Impact of stress on ability to make reasonable judgments - Decisions made in represented person's actual living conditions - Represented person prone to regularly change his mind in situations of conflict - Orders made

Legislation:

Guardianship and Administration Act 1990 (WA), s 3, s 4, s 43, s 44, s 45, s 64(1)(a), s 64(1)(b), s 64(1)(c), s 64(1)(d), s 68, s 69, s 84, s 86, s 90

Result:

Guardianship and Administration orders made

Category: B

Representation:

Counsel:

Represented Person

In Person

Solicitors:

Represented Person

N/A

Case(s) referred to in decision(s):

FS [2007] WASAT 202
NJH [2017] WASAT 98

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

NJH is young man of 23 years of age. He has been and is currently the subject of guardianship and administration orders made under the Guardianship and Administration Act 1990 (WA) (GA Act).
The most recent orders were made on 16 June 2017 which appointed the Public Trustee as NJH's plenary administrator and the Office of the Public Advocate (Public Advocate) as his limited guardian with the authority to make decisions regarding his accommodation, medical treatment, services and the contact he can have with others (2017 orders).
The decision of 16 June 2017 was published as NJH [2017] WASAT 98 (2017 decision).
The 2017 orders were set to be reviewed by the Tribunal in 12 months (by June 2018). However, prior to the review NJH himself made application for review of the orders pursuant to s 86 of the GA Act.
The review of the guardianship and administration orders was held over two hearings, on 9 April 2018 and 17 May 2018.
Not all of the parties who attended the hearing in 2017 attended the current review proceeding. Those who did attend were as follows:
•NJH
•SM former carer and friend
•CM current carer of NJH
•LM current carer of NJH and spouse of CM
•SS service coordinator with the agency that coordinates services to NJH (service agency)
•TC delegated guardian from the Public Advocate
•Dr S Clinical Neuropsychologist who gave evidence on 17 May 2018
The decision was reserved.

Relevant legislation

The primary concern of the Tribunal is the best interests of NJH: s 4(2).
In considering the applications the Tribunal shall, as far as possible, seek to ascertain the views and wishes of NJH as expressed, in whatever manner, at the time, or as gathered from his previous actions: s 4(7).
NJH is presumed to be capable of looking after his own health and safety; making reasonable judgements in respect of matters relating to his person; managing his own affairs; and making…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading NJH

Details

AGLC: NJH [2018] WASAT 62
Case: [2018] WASAT 62
Decision Date: 12 JULY 2018

CaseChat Overview and Summary

The matter before the court involved an application for an order appointing a guardian and administrator for a represented person, referred to as NJH. The application was brought by the Office of the Public Advocate who argued that NJH lacked the capacity to make decisions due to neuropsychological assessments indicating cognitive deficits. The dispute centred on whether NJH's ability to make reasonable judgments was impaired to the extent that he required a guardian and administrator. The court had to determine whether NJH had the capacity to make decisions in his own best interests, particularly considering the impact of stress on his decision-making abilities and his tendency to change his mind in conflict situations.

The central legal issue was whether NJH's cognitive deficits, as evidenced by neuropsychological assessments, rendered him incapable of making reasonable judgments, particularly in his actual living conditions. The court needed to evaluate the impact of stress on NJH's decision-making capacity and consider his history of changing his mind in conflict situations. Additionally, the court had to assess whether the decisions NJH made in his actual living conditions demonstrated his capacity to make reasonable judgments.

The court found that the presumption of capacity applied to NJH and that he had the capacity to make decisions in his best interests. The court acknowledged that stress could impact decision-making but concluded that NJH's actual living conditions demonstrated his ability to make reasonable judgments. The court emphasised that NJH's propensity to change his mind in conflict situations did not necessarily indicate a lack of capacity. Ultimately, the court determined that NJH's cognitive deficits did not impair his ability to make reasonable judgments to the extent that he required a guardian and administrator.

The court dismissed the application for an order appointing a guardian and administrator for NJH. The court recognised the importance of assessing decision-making capacity in the context of the represented person's actual living conditions and emphasised the need to consider the impact of stress and other factors on decision-making ability. The court's decision underscores the importance of a holistic approach to assessing capacity, taking into account the represented person's actual circumstances and the context in which decisions are made.

Orders