Re: AC
[2005] WASAT 139
•15 JUNE 2005
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: HUMAN RIGHTS
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: RE: AC [2005] WASAT 139
MEMBER: MS H LESLIE (SENIOR SESSIONAL MEMBER)
HEARD: 4 APRIL 2005
DELIVERED : 15 JUNE 2005
FILE NO/S: GAA 480 of 2005
GAA 482 of 2005
BETWEEN: RE: AC
Represented Person
Catchwords:
Guardianship - Capacity - Need - Passport retention - Travel restriction
Legislation:
Guardianship and Administration Act 1990 (WA)
Result:
The appointment of the Public Trustee as plenary administrator for AC be confirmed for a further five years.
The Public Advocate be appointed as limited guardian for AC with authority to decide when and upon what conditions AC shall travel outside of Australia and, to this end, to hold his passport.
Category: B
Representation:
Counsel:
Represented Person : Self-represented
Solicitors:
Represented Person : Self-represented
Case(s) referred to in decision(s):
Nil
Case(s) also cited:
Nil
MS H LESLIE (SENIOR SESSIONAL MEMBER):
REASONS FOR DECISION
Application and other orders
The Public Trustee was appointed as plenary administrator for Mr AC (hereafter AC) on 5 August 1998 for a period of two years (the order). At this time an application for a guardianship order ("to protect [the] RP from acting on his delusions and travelling to China") was dismissed. It appears that, at that time, AC's passport was in the safe custody of Graylands Hospital and was not being actively sought by AC. It appears to have been concluded that, at that time, there was no need for a guardianship order and the application for the same was dismissed. it appears to have been understood that the passport would be handed to the administrator along with other papers for safekeeping.
On 28 January 2000, the order was confirmed for a further five years.
On 28 June 2004, the order was again confirmed for five years. At that time, the Application before the then Guardianship and Administration Board (GAB) was an application lodged on behalf of AC. It was prepared with the assistance of one Terry Larson, social worker, and appeared to have been completed in part by AC and in part by Mr Larson who signed the application. In substance it stated (apparently on AC's behalf):
"…I request permission to visit Beijing, the capital of China. In the past I have been well received in Beijing. I require my money and passport from the Public Trustee … I sincerely prefer to be in Beijing before June 2004 … I have no kin in Australia … "
The application was treated as an application for a review of the order. The administration order (for management of AC's estate) was continued on a plenary basis. The GAB had confirmation at the time that the Public Trustee held AC's passport. AC requested the return of the passport. He was advised that the GAB did not hold his passport and that he should direct his request to his administrator.
As the GAB had inadequate information before it at the time as to the basis upon which the passport continued to be held and as the Public Trustee was not in attendance at the hearing, correspondence was entered into with the Public Trustee subsequent to the hearing. Ultimately, the matter was referred to the Office of the Public Advocate (OPA) for investigation as to:
1.whether an application for guardianship should be made;
2.whether AC was a person for whom such an order could be made;
3.whether he was in need of a guardian and whom it should be,
4.whether there was any less restrictive alternative to the making of a guardianship order to hold the passport of AC to achieve the stated intent of protection of the wellbeing of AC by the restriction of overseas travel; and
5.any other matter OPA considered relevant.
Following its investigation of the matter, OPA made application on 3 December 2004 to the GAB for a review of administration only, but stating:
" ... the application is lodged to allow all parties to put their views as to whether the passport should be held by a third party and if so who that party should be …"
No application for guardianship was lodged at the time.
The matter then proceeded to a hearing before the State Administrative Tribunal (SAT), the jurisdiction of the GAB having been assumed by SAT.
During the course of the SAT hearing, an application for guardianship was made by OPA, firstly orally and then, following a break in proceedings, in written form. That application sought the appointment of the Public Advocate as limited guardian to hold [AC's] passport and contact the Australian Federal Police to put in place a procedure that prevents [AC] leaving Western Australia internationally.
On the basis that, by reason of the history of the matter and the administration application that was on foot, all relevant parties had appropriate notice of the substantive issue for determination and adequate opportunity to be heard, the Tribunal gave leave to the Public Advocate to apply and ordered that the application for guardianship proceed forthwith. It ordered under section 41(3)(a) of the Guardianship & Administration Act 1990 (WA) ("the Act") that time for service of notice of the guardianship application on OPA and AC be shortened to the time of the hearing and, under s 41(3)(b), that service of notice on all other parties be dispensed with. The Tribunal was satisfied that the circumstances were exceptional and that the said orders were required in AC's best interests.
Subject to one qualification, the attitude of all other interested parties, in summary, is that the compulsory holding of the passport by an appropriately authorised person to prevent overseas travel by AC is supported.
The issues for determination by the Tribunal are therefore those of capacity and need.
Background
It appears from the evidence that AC is a permanent resident of Australia. He was born in the United Kingdom in 1943 and came to Australia as a child in 1954. He attended university. He married and has six children. He separated from his wife in 1982. His wife has since remarried. She and his children all still live in the eastern states of Australia.
The evidence is that AC suffers from chronic schizophrenia. He was hospitalised in South Australia in Glenside in 1990 (and possibly once before that). There is also reference to a possibly hospitalisation in Hobart in 1974. He was hospitalised in Graylands Hospital in 1998. He has for some years lived in a psychiatric hostel, at times being treated compulsorily under the Mental Health Act 1996 (WA). He attends a day centre most days.
He has fixed paranoid delusions. He holds longstanding delusional beliefs that he was simultaneously born in Xinjiang, China, and in Manchester, UK. He talks of having a wife and children in a remote province in northwest China. He has made numerous plans through travel agents and airlines to travel to China. His persistence has caused problems with Qantas.
Inquiries at a less formal level with the Federal Police and the Department of Immigration and Multicultural Affairs have not been productive of a solution for managing the situation.
Attempts using AC's sister in South Australia as an intermediary to confirm to him the identity of his ex‑wife and children in Australia have not been helpful. AC believes those relatives living in the eastern states are impostors. This now includes his sister. He plans to travel to China. Those charged with his care are concerned about the risk this poses to him financially and that he will place himself in danger and at risk in a foreign country; also of the grave risk to his mental health and physical wellbeing (as he also suffers from Type 2 diabetes) if he travels overseas.
Capacity
The Tribunal must consider the issue of capacity as a precursor to the consideration of application for orders relating to an adult person.
Section 4 of the Act states:
"(1)In dealing with proceedings commenced under this Act, the Tribunal shall observe the principles set out in subsection (2).
(2)...
(b)Every person shall be presumed to be capable of –
(i)looking after his own health and safety;
(ii)making reasonable judgments in respect of matters relating to his person;
(iii)managing his own affairs; and
(iv)making reasonable judgments in respect of matters relating to his estate,
until the contrary is proved to the satisfaction of the [SAT]."
Section 43 of the Act states:
"(1)Subject to section 4, where the [SAT] is satisfied that a person in respect of whom an application for a guardianship order is made under section 40
(a)has attained the age of 18 years
(b)is –
(i)incapable of looking after his own health and safety;
(ii)unable to make reasonable judgments in respect of matters relating to his person; or
(iii)in need of oversight, care or control in the interests of his own health and safety or for the protection of others;
and
(a)is in need of a guardian
the Tribunal may by order declare the person to be in need of a guardian, and if it does so shall appoint –
(b)a person to be a plenary guardian or a limited guardian and, if it is expedient, a person to be an alternate guardian; or
(c)persons to be joint plenary guardians or joint limited guardians,
as the case may require, of the person in respect of whom the application is made."
Section 64(1)(a) of the Act states that before making an administration order the Tribunal must be satisfied that a proposed represented person:
" ... is unable, by reason of mental disorder, intellectual handicap, or other mental disability to make reasonable judgments in respect of matters relating to all or any part of his estate ... "
Evidence
The Tribunal received the following evidence in relation to capacity.
AC has been declared incapable of managing his financial affairs on now three occasions consecutively since 1998.
The Tribunal had before it reports from Terry Larson, social worker at Avro Mental Health Clinic (of 20 May 2004) and from Dr Bruce Cheffins, psychiatrist (of 29 April 2004). The Tribunal also had the benefit of evidence from Mr Graham Cake, another of the social workers in the clinic team responsible for AC's follow-up and of reports filed in the earlier proceedings before the GAB.
There was some uncertainly about AC's status under the Mental Health Act 1996 (WA). AC seemed to think he was an involuntary patient. He stated he was required at the hostel to take a tablet of antipsychotic medication twice a day that he is opposed to taking. He stated that he doesn't believe that the medicine is what it is said to be anyway. He seemed content to live at the hostel whilst in Perth but wishes to travel to China. He receives visits from the clinic team at the hostel.
Mr Cake stated that he understood that AC was not an involuntary patient under a Community Treatment order. Mr Cake did not describe the situation by reference to the concept of treatment in the community as a voluntary patient but rather described AC as " ... not strictly speaking a patient of [the] mental health section ... just a resident of a psychiatric hostel where members of the Health Department visit and he has accepted our attention and assistance ... ". What appears clear is that he is receiving treatment and follow-up for his illness.
Mr Cake referred to the clinical notes from a team meeting concerning AC held on 21October 2004 attended by a Dr Brooks and a mental health nurse and reported a notation of continuing "fixed delusional system re China and his need to get back to his wife ant family there" and to other comments regarding the presence of "thought disorder with illogicality" and "fixed delusional thought content".
These symptoms were obvious to the Tribunal in AC's presentation at the hearing.
Findings
Having considered all of the evidence in this matter, the Tribunal makes the following findings.
AC suffers from a delusional condition which renders him incapable of making reasoned decisions regarding travel overseas and arrangements for his personal welfare whilst overseas.
He continues to be incapable of making reasoned decisions concerning the use of his finances.
The Tribunal is satisfied on the balance of probabilities that the requirements of the Act have been satisfied and that AC is a person for whom both a guardianship and an administration order could be made.
Need
The Tribunal is required to take into account the provisions of s 4(2)(c) of the Act which provides that:
"[An] order shall not be made if the needs of the person in respect of whom an application … is made could, in the opinion of the [SAT], be met by other means less restrictive of the person's freedom of decision and action …
And, pursuant to s 43(1)(c) and s 64(1)(b), the Tribunal may only make an order if it is satisfied that there is a need.
Evidence
The Tribunal received the following evidence in relation to the question of need.
It is uncontested that AC wishes to travel to China and that he would utilise his financial resources in pursuit of this end if given the opportunity. He is now actively seeking the return of his passport. It is the view of the treating team that he is at risk of acting on this wish in pursuit of his delusions.
It is the view of all involved in AC's care and of the Public Advocate that such travel would be a significant detriment to AC and therefore against his best interests financially and personally.
AC holds a valid British passport currently held "in safekeeping" by his administrator. The circumstances by which the passport came to be so held appear to be that when AC was in Graylands Hospital, the passport and other papers came into the hospital's possession and were placed in safe custody and, after the Public Trustee was appointed Plenary Administrator, the documents were forwarded to the Public Trustee. The Public Trustee has continued to hold the passport "in safe keeping" given the continued concern of the treating team regarding AC's desire to travel driven by his delusional beliefs.
AC has now requested in no uncertain terms the return of his passport. Given the protective function of the jurisdiction, in all the circumstances, it is entirely proper that the concerns and issues thrown up by this request be ventilated in the proper forum before the passport is released back to AC.
Other less formal mechanisms to prevent travel by negotiation have apparently failed, as have efforts to lessen the intensity of AC's delusions by treatment.
Findings
Having considered all of the evidence in this matter, the Tribunal makes the following findings.
It is against AC's best interests to travel to China at this time in the current circumstances.
There is a high probability that with access to his funds and passport, AC would endeavour to do so.
Holding a document "in safekeeping" carries with it notions of the security of the document from loss or from misuse by other persons. It does not encompass the retention of the document to prevent legitimate use by the owner of the document.
Having been asked for its return to facilitate travel, it is no longer possible for the administrator to say that the passport is being held "in safekeeping". The effect of its retention is then to prevent travel. The authorising of travel for a person (outside of the meeting of the costs and associated paperwork) is not an authority properly vested in the administrator (being responsible as she is only for " ... matters relating to ... his estate ... ") but is one correctly vested in a guardian appointed for that purpose (being a decision " ... relating to [the free movement of] his person ... " and a decision in these circumstances connected to the need for " ... oversight, care or control in the interests of [AC's] health and safety ... ".
The holding of the document by the administrator pursuant to the existing order does not constitute a legitimate less restrictive alternative to a guardianship order.
The suggestion that AC might need to obtain a visa and would in the view of some perhaps struggle to qualify for this does not provide a reliable brake on AC's travel plans. The information before the Tribunal as to the visa requirements, if any, was speculative and was admitted to be inexpert and hearsay.
The Tribunal is satisfied that there is a need for a limited guardian to be appointed to make decisions to control AC's travel overseas and for the appointment of the Public Trustee as plenary administrator of AC's affairs to be continued and that AC's needs cannot be met in a less restrictive way.
Wishes of the proposed represented person
Section 4(2)(f) of the Act requires that the Tribunal:
"[A]s far as possible, seek to ascertain the views and wishes of the [proposed represented person] as expressed, in whatever manner, at the time, or as gathered from the person's previous action ... "
In this case the Tribunal interpolated from AC's comments that he would oppose any order that had the effect of preventing him acting on his wish to travel to China. He clearly stated his wish to take control of his finances to this end. Notwithstanding these views, the Tribunal takes the view that orders for both guardianship and administration ought be made in his best interests.
Office of the Public Advocate (OPA)
In this case, the OPA representative sought to explore other less restrictive alternatives to prevent travel overseas by AC and initially expressed some reservation as to whether or not there was a need for a guardianship order to achieve this end. He ultimately expressed the view that, provided that the Tribunal was satisfied that there was no less restrictive option, then a limited guardianship order should be made appointing the Public Advocate. He expressed some concern that an authority limited to the holding a passport only might not be sufficient to prevent travel overseas and that any guardian would need to have clear authority to prevent international travel in order to have the cooperation of the authorities in preventing travel.
Plenary or limited order
Section 4(2)(d) of the Act constrains the Tribunal to appoint only a limited guardian, rather than a plenary guardian, if such an appointment would be sufficient in the view of the Tribunal to meet the needs of the person in respect of whom the application is made.
The underlying philosophy of the Act is that the Tribunal act in a way that imposes the least restriction possible on the proposed represented person's freedom of decision and action.
In the circumstances of this case, the Tribunal takes the view that a limited appointment is appropriate in view of the scope of the decisions that require to be made on behalf of AC.
Conclusion
In relation to all applications, the Tribunal is required by s 4(2)(a) of the Act to consider the best interests of the proposed represented person.
In all the circumstances, the Tribunal considers that the making of the orders set out hereunder is in AC's best interests.
Orders
The Tribunal, having considered all the evidence both written and given at this hearing, orders:
1.the appointment of the Public Trustee as plenary administrator for AC be confirmed for a further five years; and
2.the Public Advocate be appointed as limited guardian for AC with authority to decide when and upon what conditions AC shall travel outside of Australia and, to this end, to hold his passport.
I certify that this and the preceding 11 pages comprise the reasons for decision of the member who heard this matter.
_______________________________
H Leslie, Senior Sessional Member
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