PVS
[2012] WASAT 233
•26 NOVEMBER 2012
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: HUMAN RIGHTS
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: PVS [2012] WASAT 233
MEMBER: MR J MANSVELD (MEMBER)
MS D DEAN (SENIOR SESSIONAL MEMBER)
DR F NG (SENIOR SESSIONAL MEMBER)
HEARD: 30 JULY 2012
DELIVERED : 26 NOVEMBER 2012
FILE NO/S: GAA 433 of 2012
GAA 881 of 2012
BETWEEN :PVS
Represented Person
Catchwords:
Guardianship and administration Capacity Whether person in need of oversight Oversight means to supervise the person by providing watchful care or attention Scope of guardianship authority Parental responsibility Guardianship not just about authoritative decisionmaking Guardian may be appointed with particular functions even though ultimate authority lies in hands of another
Legislation:
Family Court Act 1975 (WA), s 61B
Family Court Act 1997 (WA)
Guardianship and Administration Act 1990 (WA), s 4, s 4(2), s 43, s 43(1)(b), s 43(1)(b)(iii), s 43(1)(c), s 44(5), s 45, s 90
Result:
Guardian reappointed
Summary of Tribunal's decision:
The Tribunal conducted a review of a guardianship order for a woman with post traumatic stress disorder.
The Public Advocate had been appointed the woman's guardian to make representations to and advocate generally on her behalf with relevant agencies in respect of court actions in which she was involved.
The order had been made for an initial period of about one month.
The Tribunal found that the woman continued to require the assistance of a guardian on the basis that she was in need of oversight of the court actions, because the symptoms of the post traumatic stress disorder made it impossible for her to adequately advocate in her own best interests.
The guardianship order was confirmed for a further 12 months.
The Tribunal also heard an adjourned application for an administration order for the woman. The application was dismissed because the Tribunal found that there was insufficient evidence that the woman could not manage her financial affairs.
Category: B
Representation:
Counsel:
Represented Person : N/A
Solicitors:
Represented Person : N/A
Case(s) referred to in decision(s):
LGW [2004] WAGAB 4
Public Advocate and CEF [2010] WASAT 54
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
On 12 March 2012, the Public Advocate was appointed the limited guardian for PVS, a 49yearold woman. The application had been made by PVS herself on 7 March 2012, together with an application for an administration order. In the application PVS submitted that a guardian ad litem should be appointed for her, the reason given was:
… I have severe [post traumatic stress disorder] and it is the belief both of my treating medics and of myself that my mind will splinter if forced to represent myself in immediate court cases, and further that there is likely to be a very unfavourable outcome if I attempted to do so.
The court cases to which PVS referred are criminal matters in the District Court (she has been charged with theft and fraud) and a matter concerning her children in the Children's Court (an action by her to have her children returned to her care).
A feature of the case made by PVS for the appointment of a guardian has been the filing of voluminous amounts of written material, including lengthy submissions and transcripts of court proceedings. This feature has persisted in the review of the order which is the subject of these reasons.
The guardianship order of 12 March 2012, made by a single member of the Tribunal, was in limited terms. The Public Advocate was given the following functions:
To the extent that the guardian considers it appropriate to do so:
(a)to enquire generally, and obtain information from any source, regarding the represented persons [PVS]' circumstances, including the circumstances of the criminal charges against her in the District Court and the proceedings in the Children's Court: and
(b)to make representations to, and advocate generally on behalf of the represented person with any governmental or nongovernmental agency in relation to those court proceedings, including with any agency that may be able to provide, or assist in providing, the represented person with legal representation.
The order was set for a review by the end of April 2012.
The hearing for the application for an administration order was adjourned.
Both the review of the guardianship order and the adjourned hearing for an administration order were heard by a three member panel of the Tribunal on 30 April 2012. PVS did not attend after giving notice to the Tribunal of her inability to do so. After hearing from the guardian, the hearing was adjourned.
The applications were heard on 30 July 2012 by the same constituted three member panel. The hearing was attended by PVS and the delegated guardian from the office of the Public Advocate (guardian). PVS called the psychologist, DB, to give evidence about her illness and the affect that it has on her functioning.
The decision on both applications was reserved.
The relevant legislation is the Guardianship and Administration Act 1990 (WA) (GA Act).
The application for an administration order
We have decided to dismiss the application for an administration order. That application was made at a time when PVS was seeking assistance in respect to her court actions. The guardianship order in the terms made on 12 March 2012 dealt with the issue of that assistance. The court actions in which PVS is a party are not related to her estate and there is insufficient evidence to satisfy us that PVS cannot otherwise manage her financial affairs.
The Guardianship and Administration Act 1990 (WA)
Under s 90 of the GA Act, the Tribunal can, upon review of a guardianship order, confirm the order, amend the order, revoke the order or revoke the order and substitute another order for it.
The making of a guardianship order is governed by s 43 and s 4 of the GA Act.
Under s 43(1)(b) of the GA Act, before a guardianship order can be considered the Tribunal must first be satisfied, on all the evidence, that a person is either incapable of looking after their own health and safety; is unable to make reasonable judgments in respect of matters relating to their person or is in need of oversight, care or control in the interests of their own health and safety or for the protection of others.
The starting point is that a person is presumed capable of looking after their own health and safety or making reasonable judgments about their person until the contrary is proved to the satisfaction of the Tribunal (s 4(2)(b)(i) and s 4(2)(b)(iv) of the GA Act).
If it is determined that the presumption of capacity is displaced, then before an order can be made, the Tribunal must further find that the person is in need of a guardian and that their needs cannot be met in a manner less restrictive of their freedom of decision and action (s 43(1)(c) and s 4(2)(c) of the GA Act).
If it is determined that the person is in need of a guardian, a plenary appointment shall not be made if the appointment of a limited guardian is, in the opinion of the Tribunal, sufficient to meet the needs of the person (s 4(2)(d) of the GA Act).
The appointment of a limited guardian shall, in its terms, impose the least restrictions possible on the person's freedom of decision and action (s 4(2)(e) of the GA Act).
In considering any matter, the Tribunal shall, as far as possible, ascertain the views and wishes of the person to whom the application or order applies, however, the primary concern of the Tribunal shall be the best interests of the person (s 4(2)(f) and s 4(2)(a) of the GA Act).
Except where she is appointed to act jointly with another person or other persons, the Tribunal shall not appoint the Public Advocate as a guardian unless there is no other person who is suitable and willing to act (s 44(5) of the GA Act).
The capacity of PVS, evidence and submissions
It is the view of PVS that she is unable to deal with the court actions on her own because of the effects of her post traumatic stress disorder (PTSD) on her functioning. She includes symptoms that arise in stressful situations as an inability to make judgments, a tendency to react unreasonably if she feels that she is not being heard and behaviours that alienate those people who could assist her (T: 31: 32; 12.03.12).
There is no suggestion on her part that she is cognitively impaired.
PVS has filed a number of reports with the Tribunal from DB, her psychologist, and Dr KF, her psychiatrist, as evidence of her difficulties in advancing her best interests in the court actions. They are from DB, psychologist:
•4 March 2010;
•2 June 2010;
•9 May 2011;
•26 October 2011;
•3 February 2012; and
•12 July 2012.
From Dr KF, consultant psychiatrist:
•30 May 2010;
•14 June 2010;
•4 July 2010;
•17 August 2010; and
•30 April 2012
In his most recent report of 30 April 2012, Dr KF states that he first saw PVS in February 2010. His assessment is that she suffers from PTSD that has been present for a number of years and which appears not to have responded well to medications and psychotherapy. He states that there is strong evidence that PVS does not have a bipolar disorder, schizophrenia or any other kind of psychotic illness. Dr KF states that PVS is not cognitively impaired or incapable of managing her affairs 'in the broad sense in which this phrase is normally used'. He assesses her as being able to instruct a solicitor, although she would find it difficult to manage differences of opinion or strike compromises.
As to the effects that PTSD can have on a person. Dr KF states:
People with PTSD often have a heightened sense of being in personal danger or feel themselves under personal threat, and will often have a diminished capacity to deal with daytoday stresses. Being under pressure generally will tend to exacerbate PTSD (this is the case for any anxiety disorder) as will specific 'triggers' that might be emotionally or psychologically meaningful with regard to the trauma that precipitated the PTSD initially. In these situations people with PTSD will tend to become very anxious and angry and respond or behave in less than rational ways. Sometimes, the triggers can be quite subtle. Increased anxiety will also affect concentration and have an impact on decisionmaking, especially about more complex matters. In response to a pervasive sense of danger people with PTSD will generally want a greater sense of control over their environment than might otherwise be the case, in order to feel more secure.
Dr KF agrees with the opinion of DB (see below) that attempts by PVS to represent herself in the court actions will increase her levels of stress, as a consequence of which 'she will be less than optimally able to function in court'; although he cannot say by how much, suggesting that a predictor might be how she has coped in the past.
In his most recent report of 12 July 2012, DB states that PVS was referred to him in January 2010. He has seen her regularly since then.
DB also assesses PVS as having PTSD. He describes a set of symptoms from his report of 2 June 2010 which, he says, continue to impact on the ability of PVS to work collaboratively with others. The symptoms are:
•impaired memory, particularly short term memory;
•poor concentration;
•irrational or impulsive behaviour;
•nervousness;
•anxiety;
•sudden angry outbursts;
•irritability;
•overwhelming sense of injustice;
•feelings of detachment and emotional numbness;
•social isolation; and
•hypervigilance and impaired ability to monitor and regulate tone and volume of speech.
In his oral evidence, DB states that PTSD can be understood as a person being in a state of 'fight or flight', such that there is no 'middle ground' when the person is presented with a particular problem for resolution. In the case of PVS, although DB is of the view that she remains capable of making decisions in respect to her welfare, it is in the execution of those decisions that, he says, difficulties will arise. It is the view of DB that PVS is not able to advocate in her own best interests and that in stressful situations she may become 'her own worst enemy'.
DB states that appointing a guardian with decisionmaking authority would likely exacerbate the situation if the guardian made a decision that PVS felt was contrary to her best interests. It is the view of DB that an advocate would be of assistance to PVS; one with an understanding that she might take a 'fight or flight' stance on matters put to her and would therefore be prepared to maintain a strong position on an issue in the advocacy role. DB opines that the success of the advocate would ultimately depend on the extent to which PVS would be prepared to work with that person.
The guardian questions whether PVS is a person who lacks 'decisionmaking capacity'. The guardian states that he recently witnessed PVS' appearance by telephone in the Children's Court and, in his view, she was able to effectively represent herself and gain concessions from the court about listing dates. PVS disputes the assessment of the guardian, stating that she was not dealing with the substantive action but rather with procedural matters before a Magistrate well known to her.
The decision of the Tribunal on the capacity of PVS
We accept that PVS has PTSD. We further find on the uncontested evidence of Dr KF and DB that the symptoms of the PTSD have a negative effect on her functioning, such that when she is placed under stress, as with the ongoing court actions, she is severely compromised in her ability to proceed in a way which serves her best interests. Her 'fight or flight' response leads her into antagonistic relationships, even with those who are in a position to assist her.
This has an ongoing impact on PVS' health.
PVS has insight into her circumstances and accepts the assessments of Dr KF and DB. The problem she encounters is that in stressful situations, she is unable to adequately modify her behaviour to enable an orderly resolution of the problems with which she is confronted.
There is no evidence before the Tribunal that PVS is cognitively impaired.
The question before the Tribunal is whether she satisfies the provisions of s 43(1)(b) of the GA Act (see above).
The circumstances of PVS are analogous to those found in Public Advocate and CEF [2010] WASAT 54 (CEF), a decision in which the President of the Tribunal presided.
CEF concerned a person who was faced with a large amount of litigation and who was susceptible to severe anxiety and panic attacks when required to deal with the litigation, either in representing herself or in communication with others. The Tribunal did not find that CEF was unable to make reasonable judgments in respect of matters relating to her person, or that she was generally incapable of looking after her own health and safety (CEF at [32] [35]), however, it did find in the circumstances that:
… left entirely to herself to deal with her litigation, CEF would be unable to cope and it is likely that her health would be adversely affected. Accordingly, she has, in our view, demonstrated a need for oversight, care and control in relation to the litigation in which she is involved. That need arises in the interests of her health (CEF at 37).
We find, on the evidence, that PVS is a person in need of oversight in the complex and stressful litigation with which she is currently involved (s 43(1)(b)(iii) of the GA Act). Oversight in this sense means to supervise by providing watchful care or attention (Macquarie Dictionary: 5th ed, page 1192).
The need for a guardianship order, evidence and submissions
The guardian states that, in effect, he has done all that he can reasonably do under the order of 12 March 2012. He sought grants of aid from Legal Aid and was successful in obtaining assistance for the criminal matter but not the Children's Court matter.
The guardian states, and this is confirmed by PVS, that in respect of the criminal matter, there is a warrant for her arrest for failing to attend court.
The guardian states that the basis upon which the lawyer would act in the criminal matter was that he was prepared to work only through the guardian. This was said to have been undermined by PVS because she continued to make direct contact with him. The lawyer ultimately sought to be relieved of his brief, and this has been reluctantly accepted by the guardian. At the date of the hearing before the Tribunal, the guardian states that the grant of Legal Aid is to be terminated on the basis that PVS has not given instructions in a suitable manner and is not following reasonable legal advice. The guardian states further:
In his email to the commission and the guardian on 17 July 2012, [the lawyer] requested that he be relieved of his obligations to act for the time being. This indicates that when required [the lawyer] remains willing to represent her. To date his stated position has been that he will require a guardian to act as an intermediary. This position is also consistent with that of the [L]egal [A]id Commission. (T:86, 30.07.12)
The guardian submits that PVS does not need assistance in the Children's Court matter because she has successfully represented herself in a recent procedural hearing in the court and has demonstrated that she has the ability to act on her own behalf.
The guardian states that PVS is also involved in an action to have a violence restraining order from 2011 lifted which currently prevents her from having access to her children unless approval is granted by the Department of Child Protection. The guardian submits that he will not be able to assist PVS in that matter.
The guardian states that he has exhausted available options to provide PVS with legal representation and general advocacy. He says that she has consistently thwarted his efforts and the efforts of the lawyer to address her legal actions. The guardian submits that the guardianship order no longer provides any benefit to PVS and should be revoked. He says that PVS has, in an ongoing way, tried to direct the guardian, which is contrary to the scope of the order of 12 March 2012. This has made it very difficult for him to establish an effective working relationship with PVS.
The guardian submits that, whilst PVS is a person with particular needs, the appointment of a guardian, as distinct from that of an advocate, is not the best way to meet those needs.
It is the view and wish of PVS that the guardianship order remains in place. She questions, however, the ability of the current guardian to perform the functions given to him, and submits that the guardian does not have a good understanding of working with a person who suffers from PTSD.
PVS submits that the need for a guardian is established because she is in need of an advocate. She states:
However, if one had an advocate that is used to dealing with posttraumatic stress, they can assist[,] particularly in applications to various organisations, not just legal, for assistance in this matter, which is a matter of a grave injustice when one is mislabelled with mental illness and you lose your children and so on, so representing you personally, understanding that, particularly when you [are] disbelieved or perceived to be not believed and that [is] when the posttraumatic stress kicks in.
There [is] a number of meetings I've been to with, say, DPP, the RSL [and] other organisations where somebody with you understands posttraumatic stress or understands how you behave, given a courtroom situation [and] is able both to counsel you and to represent you know counsel you to sit down, be quiet, do whatever, and to represent you to the people perhaps in a more even tone of voice or with more clarity …
There [is] also the matter of my ability to compose documents. Whereas I used to be a project manager and it certainly counts against me, my level of education. I have four degrees. I [am] welleducated. I [am] welltravelled. So it looks as if I [am] completely competent and know what I [am] doing, but in the courtroom now with posttraumatic stress, that competency disintegrates, so an advocate can put to the people who quite disbelievingly think, 'this woman is perfectly capable' quite why you need representation in the courtroom is also, one would have hoped, able to examine one's documents to see if they set an appropriate tone in whatever it is you[are] applying for in terms of legal assistance, whether one is feeling, say (indistinct) I [am] talking about an advocate now rather than what the guardian can do, but whether one's documents are not perhaps perceived as aggressive or misstated. Quite often they [are] very longwinded and inaccurate now, as you [will] see before you; certainly not the quality of document you would have been given a couple of years ago.
A public advocate, as it were sorry, an advocate[,] could help keep things on track and check up to see that the things that need to be done are being done because obviously there [are] periods of depression, but also one would hope that an advocate in a situation, for instance, like the bail thing, would take it upon themselves to actually find out who because I get quite upset at this point, as I think we all get upset when we have a government institution who [is] consistently denying that it [is] their job to do somebody else's, an advocate, one would hope, particularly in the legal matters to which he [is] appointed to assist with one would hope that he [would] be able to follow up and actually find out who [is] responsible for these applications and then come back to me and say, 'we need these papers'.
The way it has unfortunately happened is [the guardian] has wanted the papers before he [will] make the applications and then won't copy to me his covering letter and it would really need to work in reverse and understand … that it [is] persistence and support. There are a number of advocacy and other organisations that could help me, but I need advocacy in approaching those organisations.
For example, [the guardian] was asked not to approach the RSL until I had particular paperwork available to me... The RSL had agreed to help but not through the normal front open channels. They said, 'if you made an order they would certainly consider it', and I had asked [the guardian] to support my application with the right papers in that manner to the RSL.
It is certainly the situation that Legal Aid and Law Access and the Bar Association have made clear statements because they believe that I have multiple mental illnesses that they do not wish to deal with me directly, if I have an advocate who is able to genuinely advocate on my behalf. Unfortunately, with the lack of workable communications with [the guardian], it [has] actually created walls that I run into everywhere, whereas one would hope that I could do the documents, I know what [is] needed. He could review them and make suggestions and then put a covering letter in saying, 'this is an application for X, Y or Z'.
Really, to assist in the many forums that I now have to, as it were, perform in before Christmas, if again, I [am] not talking about the guardians, but I would hope also to be looking at the probability of reasonable employment and to if not able to advocate in that manner, to assist in finding advocates, of which there [are] very few in Perth, who might be willing to take on somebody that has quite severe posttraumatic stress. (T:104, 105, 106, 30.07.12)
PVS submits that the role of the guardian should be expanded as follows:
I still see a very strong need for a role such as [the guardian] was appointed for, perhaps slightly widened … to also include approaching the witnesses and members that are needed for the court case in a persuasive manner on my behalf where I would naturally alienate them, to bring them on board … and would include that if you had it in mind to appoint somebody to assist me that you included some of those points somehow in the order, too, because I really believe that a well informed advocate that is willing to speak to my witnesses and read my papers I really believe that we could as I summarise in my letter to you today, I think there [is] so much help that such a person could assist me with and together if they [are] willing to understand that I [am] quite competent in many areas, but not all areas, there [is] a very powerful possible partnership there and could simply wrap most of these matters up very quickly indeed with two or three months' cooperation.
It [is] a really significant role that an advocate could play that I know that my approaches to these organisations are going to be rejected, both because of my past record and because of my current behaviour and demeanour.
I know where I will fall down. I really do think there [is] a role for somebody such as [the guardian] to have an understanding of PTSD and also does [not] resent the fact that his client has a reasonable degree of intelligence. (T:119, 30.07.12)
The decision of the Tribunal on the need for a guardianship order
The Tribunal accepts that PVS has significant needs in respect to the legal actions in which she is currently involved. The actions are serious and will likely impact on her freedom and the access she wishes to have with her children.
The Tribunal also accepts that it has been very difficult to give practical effect to the guardianship order for the reasons put by the guardian in his evidence.
The scope of guardianship authority resides in the notion of 'parental responsibility' found in parenting orders under the Family Court Act 1997 (WA) (s 45 of the GA Act and s 61B of the Family Court Act 1975 (WA)).
What is encompassed in 'parental responsibility' was considered by the Full Board of the former Guardianship and Administration Board in LGW [2004] WAGAB 4 (LGW) at [34] [35].
In this regard, amicus pointed the Board to Dickey, Family Law (1997 Third Edition) which states that parental responsibility involves the power to determine such matters as the form of education that a child is to receive, the religion that the child is to be brought up in, the name by which a child is to be known, the place where the child is to reside, the diet the child is to receive and the persons with whom the child may associate. Dickey also specifically acknowledges that parental responsibility includes the power to make representations on behalf of the child. In the context of adult guardianship, this might take the form for example of making enquires, obtaining information, seeking assistance, marshalling services or making submissions on behalf of the represented person as well as being the 'voice' with legal standing to assert the best interests of the represented person. Dickey also notes that even under the narrowest view of guardianship, the concept signifies duties to the child ab extra, that is, a warding off, the defence, protection and guarding of the child, or his property from danger, harm or loss that may enure from without, as opposed to custody which essentially concerns the control, care and responsibility for a child in regard to his daytoday needs, food, clothing, instruction and the like [citing Wedd v Wedd [1948] SASR 104 at [106107]. On this view, the description in s 45(1) encompasses not only 'authoritative' decisionmaking but all the other duties, powers and responsibilities that a parent may exercise in relation to a child.
… In the end, we are driven back to the text of the legislation. It appears to us that the description of the functions in s 45(1) is clear in its terms. The references to the provisions of the Family Court Act in our view describe a bundle of responsibilities that often include decisionmaking but may also cover a range of other functions, duties and powers that attach whenever one has the equivalent of parental responsibility for the longterm and daytoday care, welfare and development of a represented person. This includes acting to assert and protect the rights and interests of the child against third parties and making representations on behalf of a person.
The Full Board decided that a guardian may be appointed with particular functions even though the ultimate authority lies in the hands of another (LGW at [40]).
We adopt the reasoning in LGW.
We find that there is no less restrictive alternative to the ongoing appointment of a guardian for PVS. She is isolated from supports both legal and general that may assist her. We accept this is largely the result of her behaviours that arise from her PTSD. The evidence of the guardian is that he too has not been able to establish an effective working relationship with PVS. However, unlike those agencies or persons who have no statutory obligation to assist PVS, the force of a guardianship order means that the appointed guardian is obliged to persist in the attempt to engage with her and to try and assist her.
The seriousness of the situation is such that, in our view, despite the difficulties she presents, it is in the current best interests of PVS that a guardian be reappointed.
PVS supports the reappointment.
We find that the order made on 12 March 2012 continues to correctly indentify the areas in which PVS needs ongoing assistance and that it should be confirmed. The order acknowledges the circumstances in which the guardian must perform the given functions by allowing the guardian to determine the extent to which the functions should operate. The order does not allow PVS to direct what the guardian does, it is the guardian who must decide, within the confines of the order, what is in the best interests of PVS.
We confirm the order made on the 12 March 2012 for a further 12 months.
Orders
Guardianship
1.The Public Advocate of level 1, Hyatt Centre, 30 Terrace Road, East Perth, Western Australia be appointed limited guardian of the represented person with the following functions:
(a)to the extent that the guardian considers appropriate to do so:
(i)to enquire generally and obtain information from any source regarding the represented person's circumstances, including the circumstances of the criminal charges against her in the District Court and the proceedings in the Children's Court; and
(ii)to make representations to, and advocate generally on behalf of, the represented person with any governmental or nongovernmental agency in relation to those court proceedings, including with any agency that may be able to provide, or assist in providing, the represented person with legal representation.
2.The Tribunal approves delegation by the Public Advocate of her functions as guardian of the represented person to an officer or employee employed in the Office of the Public Advocate.
3.This order is to be reviewed by 23 November 2013.
Administration
1.The application for an administration order is dismissed.
I certify that this and the preceding [59] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR J MANSVELD, MEMBER
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