PB - [2021] WASAT 42 | CaseChat AU

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION:   PB [2021] WASAT 42
MEMBER:   JUDGE D R PARRY, DEPUTY PRESIDENT
DR B DE VILLIERS, MEMBER
DR B MCGIVERN, MEMBER

HEARD:   12 MARCH 2021
DELIVERED          :   19 MARCH 2021
FILE NO/S:   GAA 4279 of 2020

PB
Applicant
TG
Represented Person
PUBLIC ADVOCATE
Third Party
PUBLIC TRUSTEE
Fourth Party

Catchwords:

Guardianship and administration - Reviewed by Full Tribunal of determination of single member to refuse to grant leave to apply for review of guardianship and administration orders appointing Public Advocate as plenary guardian and Public Trustee as plenary administrator for represented person - Whether because of a change of circumstances or for any other reason a review should be held

Legislation:

Guardianship and Administration Act 1990 (WA), s 3(1), s 4(2), s 4(3), s 17A(1), s 43(1), s 64(1), s 84, s 86(1), s 87
Health (Miscellaneous Provisions) Act 1911 (WA), s 135(1), s 136
Mental Health Act 2014 (WA), s 21, s 22, s 22(1), s 22(3)
Public Trustee Act 1941 (WA), s 58

Result:

Request for leave to apply for review of guardianship and administration orders refused

Category: B

Representation:

Counsel:

Applicant	:	In person
Represented Person	:	In person
Third Party	:	DM
Fourth Party	:	Mr M Woodford

Solicitors:

Applicant	:	N/A
Represented Person	:	N/A
Third Party	:	N/A
Fourth Party	:	Public Trustee

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

LP [2020] WASAT 25; (2020) 99 SR (WA) 123

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

On 22 May 2020, the Tribunal made a guardianship order under s 43(1) of the Guardianship and Administration Act 1990 (WA) (GA Act) appointing the Public Advocate as plenary guardian for the represented person TG and an administration order under s 64(1) of the GA Act appointing the Public Trustee as plenary administrator of TG's (financial) estate.[1] The guardianship and administration orders were made reviewable under s 84 of the GA Act within five years of the date on which they were made.
[1] The Tribunal has periodically made guardianship and administration orders for TG since 4 August 2009.
On 14 October 2020, a single member of the Tribunal refused to grant leave to PB and AS under s 87 of the GA Act to apply for the review under s 86(1) of the GA Act of the guardianship and administration orders made by the Tribunal for TG.
On 2 November 2020, PB applied for a review by a Full Tribunal under s 17A(1) of the GA Act of the determination made by the single member to refuse to grant him leave to apply for the review of the guardianship and administration orders.

Background

TG is a 56 year old woman who suffers from treatment resistant schizoaffective disorder. Schizoaffective disorder is a 'psychiatric condition' and consequently a 'mental disability' within the meaning of that term as defined in s 3(1) of the GA Act. TG's mental disability is a static condition.
TG first had contact with mental health services in about 1983, when she was 19 years old. TG is currently an 'involuntary patient' under an 'involuntary treatment order', specifically an 'inpatient treatment order', under s 21 and s 22 of the Mental Health Act 2014 (WA) (MH Act). Under s 22(1) of the MH Act, an inpatient treatment order is an order in force under the MH Act 'under which a person can be admitted by a hospital, and detained there, to enable the person to be provided with treatment without informed consent being given to the provision of the treatment'. TG is currently admitted and detained in a locked ward at Graylands Hospital under the inpatient treatment order.
Recent medical reports by Dr RD, a psychiatrist, and Dr MI, both dated 23 November 2020, confirm TG's diagnosis of schizoaffective disorder and indicate that, by reason of that mental disability, TG is 'incapable' of making reasonable decisions in relation to simple financial matters (such as managing a budget, payment of accounts and purchasing essential items), complex financial matters (such as management of property or large sums of money, purchase or sale of significant assets, pursuing entitlements and advocating for her own interests with financial institutions) and legal matters (such as the ability to commence, defend or settle proceedings).[2] In support of his opinion that TG is incapable of making reasonable financial decisions, Dr RD explains that '[TG's] elevated mood state is associated with executive dysfunction affecting her ability to process information, plan and consider consequences of her decisions'.[3] Dr RD also considers that TG is 'likely vulnerable to exploitation' in relation to financial decisions, an opinion also expressed by KM, a senior social worker at Graylands Hospital, in a report dated 2 December 2020.
[2] Hearing Book (Exhibit 1) pages 15 and 21.
[3] Exhibit 1 page 21.
Dr RD and Dr MI both also consider that TG is 'incapable' of making reasonable decisions in relation to medical treatment and procedures, accommodation (such as identifying and securing housing that is appropriate to her care and support needs) and services.[4] In support of their opinions that TG is incapable of making reasonable decisions concerning medical treatment and procedures, both doctors refer to TG's refusal to consider changes to her mental health medication and refusal of treatment for a new diagnosis of type 2 diabetes. In support of their opinions that TG is incapable of making reasonable decisions concerning accommodation, both doctors refer to TG's wish to be discharged to her house in a suburb of Perth (house), despite the fact that the house has been 'deemed unfit for human habitation'[5] and 'is not appropriate for her needs'.[6] In support of their opinions that TG is incapable of making reasonable decisions concerning services, both doctors say that TG only identifies the need for a few hours of support each day, whereas observations of her on the ward indicate that she requires '24/7 support'.[7]
[4] Exhibit 1 pages 16 and 22.
[5] Dr RD (Exhibit 1 page 22).
[6] Dr MI (Exhibit 1 page 16).
[7] Exhibit 1 pages 16 and 22.
Section 4(3) of the GA Act prescribes the following, which is commonly referred to as the 'presumption of capacity':
Every person shall be presumed to be capable of —
(a)looking after [her] own health and safety;
(b)making reasonable judgments in respect of matters relating to [her] person;
(c)managing [her] own affairs; and
(d)making reasonable judgments in respect of matters relating to [her] estate,
until the contrary is proved to the satisfaction of the State Administrative Tribunal.
However, on the medical evidence in the reports of Dr RD and Dr MI, supported by the evidence of social worker KM, all of which evidence we accept, the presumption of capacity is displaced in the circumstances of this case. In particular, we are satisfied on the evidence of TG's treating doctors and social worker on a balance of probabilities and feel an actual persuasion[8] that, under s 43(1) of GA Act, TG:
[8] See LP [2020] WASAT 25; (2020) 99 SR (WA) 123 (Judge Parry DP, Ms M Connor M and Dr H Hankey S Sess M) [99][109].
…
(b)is —
(i)incapable of looking after [her] own health and safety;
(ii)unable to make reasonable judgments in respect of matters relating to [her] person; [and]
(iii)in need of oversight, care or control in the interests of [her] own health and safety …;
and
(c)is in need of a guardian,
…
and that, under s 64(1) of the GA Act, TG:
…
(a)is unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all … of [her] estate; and
(b)is in need of an administrator of [her] estate[.]
…
As indicated earlier, TG wishes to be discharged to live in the house. However, on 30 July 2014, the relevant local government declared the house to be 'unfit for human habitation' under s 135(1) of the Health (Miscellaneous Provisions) Act 1911 (WA) (Health Act). Under s 136 of the Health Act, any person who 'inhabits or occupies' the house would commit an offence.
On 27 November 2019, the Public Trustee applied to the Supreme Court of Western Australia for an 'opinion or direction' under s 58 of the Public Trustee Act 1941 (WA) (PT Act) that the Public Trustee is justified in selling the property comprising the house (property). TG was represented by a solicitor acting as guardian ad litem in the Supreme Court proceedings. On 18 February 2021, Master Sanderson made a declaration under s 58 of the PT Act that the Public Trustee as plenary administrator of the estate of TG is justified in selling the property. The Public Trustee has removed TG's possessions, including artworks and photographs, from the house and is taking steps to sell the property.
TG's delegated guardian in the office of the Public Advocate, DM, is currently considering options for the accommodation of TG where she 'will be supported 24/7 … in the community',[9] if the inpatient treatment order is replaced with a community treatment order under s 23 of the MH Act.

Consideration of application

[9] Exhibit 1 page 33.

Section 86(1) of the GA Act states as follows:[10]
The State Administrative Tribunal may at any time on the application of —
(a)the Public Advocate; or
(aa)the Public Trustee; or
(b)a represented person or a guardian or an administrator; or
(c)a person to whom leave has been granted under section 87,
review a guardianship order or an administration order.
[10] Emphasis added.
Section 87 of the GA Act states as follows:
(1)Any person may request the State Administrative Tribunal for leave to apply for the review of a guardianship order or an administration order.
[(2), (3)deleted]
(4)The person making the request shall state his reasons for the request at his option —
(a)in writing;
(b)orally in an appearance before the State Administrative Tribunal; or
(c)partly in writing and partly orally.
(5)The State Administrative Tribunal may —
(a)refuse the request; or
(b)if it is satisfied that because of a change of circumstances or for any other reason a review should be held, grant, either unconditionally or subject to any condition, leave to the person to apply for the review.
Under s 4(2) of the GA Act, the 'primary concern' of the Full Tribunal in these proceedings is 'the best interests' of TG. The determination of what is in the best interests of TG involves an objective assessment of the facts and circumstances of the case while taking into consideration TG's views and wishes.
PB is a friend of TG. At the hearing on 12 March 2021, TG (who attended by telephone) said 'I love you [PB]' and 'I need you and you need me'. TG indicated she would like to take care of PB, who is aged 80, in the house at the property and that he can also take care of her there. Although the property was declared unfit for human habitation almost seven years ago, TG said that 'everything is alright with the house'.
In his written submissions dated 3 March 2021 and his oral submissions made at the hearing on 12 March 2021, PB seeks leave to apply for the review of the guardianship and administration orders on five principal grounds.
First, 'My issue is to get [TG] a mental capacity test which has constantly been denied'.[11]
[11] Written submission dated 3 March 2021 (written submissions) page 2 (Exhibit 2).
Secondly, 'Me [sic] next point is get [TG's] Public [T]rustee [a]ccount audited unless they have things to hide'.[12]
[12] Written submissions page 2.
Thirdly, PB wishes to 'get visits & phone calls re established [sic] as care & support' for TG while she is under the inpatient treatment order at Graylands Hospital.[13] In his oral submissions, PB said that he and AS have been 'denied access' to TG while she has been in the locked ward.
[13] Written submissions page 2.
Fourthly, PB wishes to 'get some of [TG's] 90k [$90,000] grant spent on her house' so that she can live in it.[14] PB indicated that he has previously renovated houses and wishes to be involved in repairing the house at the property.
[14] Written submissions page 2.
Finally, PB says that the Public Trustee 'gave [TG] $5 a day to live on then had her arrested for begging'.[15]
[15] Written submissions page 2.
Insofar as PB's grounds for seeking leave to apply for the review of the guardianship and administration orders allege, as he said at the hearing on 12 March 2021, that TG 'has been denied a lot of rights under the Mental Health Act', in particular the alleged failure to provide her with a capacity test (ground 1) and to allow visits and phone calls (from PB and AS) (ground 3), these grounds are misconceived. The Tribunal has no jurisdiction or power under the GA Act to make any decision under the MH Act, including requiring a capacity assessment or additional visits and phone calls. Furthermore, as the delegated guardian DM explained, TG has had a number of hearings before the Mental Health Tribunal, most recently in February 2021. DM said that TG is assisted by a mental health advocate at hearings before the Mental Health Tribunal and that she (DM) has participated in a number of the hearings. On each occasion, the Mental Health Tribunal has confirmed TG's status as an involuntary patient under an involuntary treatment order. As the member said in his reasons for the determination that PB seeks review of by the Full Tribunal, it is 'not in the jurisdiction [or power] of this [T]ribunal'[16] under the GA Act to review decisions of the Mental Health Tribunal, including a decision to confirm an inpatient treatment order.
[16] ts 33, 14 October 2020.
PB's wish to 'get some of [TG's] 90k [$90,000] grant' to spend on the house (ground 4) is also misconceived. Although in a report to the Tribunal dated 5 January 2021 the Public Trustee's delegated trust manager states that '[t]he property needs approximately $90,000 to $100,000 in repairs to make it safe and habitable',[17] the trust manager also states that TG has 'limited financial ability to carry out the necessary maintenance and repairs'.[18] As at 5 January 2021, TG had a closing balance of $5,493.36 held by the Public Trustee.
[17] Exhibit 1 page 35.
[18] Exhibit 1 page 36.
Furthermore, and in any case, it is not within the jurisdiction or power of the Tribunal to give PB money that TG may have to spend on the house. The Tribunal's jurisdiction and power in a review of an administration order under s 86(1) of the GA Act, for which PB seeks leave under s 87 of the GA Act in relation to TG's financial affairs, is to consider whether the presumption of capacity is displaced on the evidence and whether there is a need for an administrator of TG's estate and, if so, to determine what functions should be vested in the administrator, who should be appointed as the administrator and when the administration order should be reviewed. It is for the administrator not the Tribunal to make financial decisions in the best interests of the represented person. As TG's plenary administrator, the Public Trustee has decided that '[d]ue to the condition of [TG's] property and her limited financial ability to carry out the necessary maintenance and repairs … it would be in [TG's] best financial interest for the property to be sold'.[19] As indicated earlier, the Public Trustee, as plenary administrator of the estate of TG, applied for and obtained a declaration from the Supreme Court under s 58 of the PT Act that it is justified in selling the property.
[19] Exhibit 1 page 36.
PB's remaining grounds on which he seeks leave to apply for the review of the guardianship and administration orders, namely that he wishes to have TG's account with the Public Trustee 'audited' (ground 2) and his allegation that the Public Trustee 'gave [TG] $5 a day to live on and then had her arrested for begging' (ground 5) are not misconceived insofar as they suggest that the plenary administrator has not acted in TG's best interests. However, these grounds are without substance and without merit.
There is no evidence raising any concern about whether the actions of the plenary administrator on behalf of TG have not been in her best interests. Similarly, there is no substance or merit in PB's submission at the hearing on 12 March 2021 that the Public Trustee has been 'negligent' by allowing the property to fall into disrepair. As indicated earlier, the property was declared unfit for human habitation almost seven years ago and TG does not have the financial ability to carry out the necessary maintenance and repairs.
In relation to the allegation that the Public Trustee has given PB '$5 a day to live on', the evidence indicates that the Public Trustee has been giving TG an allowance of $300 a fortnight (approximately $21 a day) through the Graylands cashier. Obviously TG has no living expenses while she is under an inpatient treatment order. Furthermore, the decision to give TG $300 a fortnight as an allowance is an outcome of the Public Trustee's budgeting of TG's disability support pension of $944.30 per fortnight. TG has a number of known debts for rates, utilities and other living expenses, which add up to about double the balance of her funds held by the Public Trustee as at 5 January 2021. In the report to the Tribunal, the trust manager states that the balance of funds 'are available to be applied for [TG's] benefit upon request'.[20]
[20] Exhibit 1 page 36.
We are not satisfied that there has been any relevant change in circumstances since the Tribunal made guardianship and administration orders for TG on 22 May 2020. We are also not satisfied that there is any reason why a review of the guardianship and administration orders should be held. PB's grounds for seeking leave to apply for the review of the guardianship and administration orders are misconceived or lacking in substance and without merit.

Conclusion

It follows that the application for leave to apply for the review of the guardianship and administration orders made by the Tribunal for TG on 22 May 2020 should be dismissed. We therefore make the following order:
Pursuant to s 87 of the Guardianship and Administration Act 1990 (WA) the request for leave to apply for the review of guardianship and administration orders made for the represented person is refused.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
JUDGE D R PARRY, DEPUTY PRESIDENT
19 MARCH 2021