Re Awc; Ex Parte Awc - [2009] WASAT 216

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: HUMAN RIGHTS

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION: RE AWC; EX PARTE AWC [2009] WASAT 216

MEMBER: MR J MANSVELD (MEMBER)
MS F CHILD (MEMBER)
MS H LESLIE (SENIOR SESSIONAL MEMBER)

HEARD: 12 MAY 2009 AND 2 SEPTEMBER 2009

DELIVERED : 2 NOVEMBER 2009

FILE NO/S: GAA 834 of 2009

EX PARTE
AWC
Represented Person

Catchwords:

Guardianship and administration Administration Review of administration order Mental disability Acquired brain injury Psychiatric assessment Neuropsychological assessment Ability to make reasonable judgments about all or any part of his estate Court action for personal injuries Conduct of court action Damages award Need for an administrator Administrator appointed

Legislation:

Guardianship and Administration Act 1990 (WA), s 3, s 4, s 4(2)(b)(iv), s 64(1), s 64(1)(a), s 90, Sch 1
Supreme Court Rules 1971 (WA), r 1, O 70

Result:

Category: B

Representation:

Counsel:

Represented Person : Mr AJ Klein

Solicitors:

Represented Person : Stephen Browne Personal Injury Lawyers

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

FS [2007] WASAT 202

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

The mother of a 45yearold man was appointed his administrator so that she could act as his next friend in an action in the District Court for a personal injury claim arising out of a motor vehicle accident. Amongst other things, the man had residual physical injuries and suffered severe expressive dysphasia; an inability to put thoughts into appropriate words.
Subsequent to the trial in the District Court but prior to the judgment of the Court, the mother, on the advice of the man's solicitor, sought a review of the administration order. An assessment had been made by a psychiatrist that the man was now capable of conducting the legal action in his own right and, moreover, could manage any award of damages that might be made.
The man's solicitor advised that the Court would not hand down its judgment until the review of the administration order had been determined by the Tribunal.
The evidence before the Tribunal for the review included an assessment by a clinical psychologist that differed from the opinion of the psychiatrist. That assessment found that some of the man's higher brain functioning was compromised, in particular, that he had a deficit in both his recall and his working memory which impaired his ability to keep in his mind and take into account all relevant information in consideration of an idea or proposition. The psychologist's conclusion was that the man remained very impaired in relation to the conduct of his personal and financial affairs.
The Tribunal preferred the assessment of the clinical psychologist which was based on neuropsychological testing and which was in part supported by the reported observations and experiences of the man's family.
The Tribunal decided to continue with the administration order that had been previously made because the complexity of the legal action in which the man was engaged meant that he needed an administrator to manage this aspect of his estate. The order was set for review in 12 months' time.

Background

These reasons relate to an application for review of an administration order of the estate of AWC (represented person).
The relevant legislation is the Guardianship and Administration Act 1990 (WA) (GA Act).
For the purposes of these reasons, the name of the applicant, the represented person and other parties will be anonymised consistent with the practice of the Tribunal in respect of applications made under the GA Act to avoid identification of parties to the proceedings: see [12(1)] of Sch 1 of the GA Act.
The represented person is a 45yearold man who suffered extensive injuries in a motor vehicle accident and a subsequent stroke in October 2002.
On 12 December 2002, the former Guardianship and Administration Board appointed the mother of the represented person (SC), and his sister (LAC), as the joint plenary administrators of his estate.
In January 2005, the Tribunal took over the functions of the Guardianship and Administration Board.
On 12 December 2007, upon application for a review of the order by SC, the Tribunal revoked the order of 12 December 2002 and made a new order appointing SC as the represented person's limited administrator, with the function to seek legal advice on his behalf and to bring and defend actions, suits and other legal proceedings in his name and, if appropriate, to settle the same.
At the time, the represented person, through SC (and LAC) as his next friend, had commenced proceedings in the District Court of Western Australia (Court) for a personal injuries claim (claim) arising from the 2002 motor vehicle accident.
On 30 March 2009, SC and LAC sought a further review of the administration order seeking revocation of the order. The application was made at the urging of the represented person's solicitor, who stated in a letter to SC dated 24 March 2009, that recent medical evidence was quite clearly to the effect that the represented person could give instructions as to the conduct of his claim and could manage his financial affairs, including management of any moneys he might be awarded in respect to the claim.
The medical evidence to which the solicitor referred was a report from the psychiatrist, Dr PM, dated 12 February 2009.
The solicitor also advised of his concern that if an administration order remained in place, the Court might order that any successful claim be paid to the Public Trustee to be held for the represented person's benefit. Such an outcome could give rise to a difficulty, in that the respondent to the claim would argue that it should not have to pay the Public Trustee's management fees.
The review of the administration order was first heard by a single member of the Tribunal on 12 May 2009. Evidence was given by the represented person, SC and Dr PM.
The hearing was adjourned to seek further information from the represented person's solicitor and the State Head Injury Unit (SHIU) from which the represented person had been receiving a service, and to enable the application to be considered by a three member panel of the Tribunal.
In response to questions from the Tribunal following the hearing on 12 May 2009, the represented person's solicitor advised that the represented person's action in the Court had to be conducted on his behalf by his next friend as he was subject to an administration order (O 70 r 1 of the Supreme Court Rules 1971 (WA) (Rules) defines that a person under a disability is a represented person and it also provides that a represented person means a represented person within the meaning of the GA Act).
The solicitor advised that the trial for the represented person's claim ended on 23 February 2009 and that the Court would not hand down a decision until the present application before the Tribunal had been determined. The solicitor advised that he was confident of success and that, if successful, although potentially discounted, the award would be a large one.
Further advice was given that Dr PM had given evidence at the trial and the Court had the benefit of his assessment that the represented person would likely not make reckless decisions if he were to receive a very large award of damages or be at risk of exploitation by others.
The solicitor also advised that other medical reports were available and the Tribunal sought and was given access to them, including the reports of Dr PM and Dr LH (clinical psychologist) to which we will later refer.
The Tribunal also put a number of questions to the SHIU which, together with the responses, are dealt with later in these reasons.
The application for review was heard by a three member panel of the Tribunal on 2 September 2009 and the decision reserved.
The represented person attended the hearing as did his solicitor and SC. Dr LH gave evidence.
At the request of the Tribunal following the 2 September 2009 hearing, the represented person's solicitor submitted the transcript of Dr PM's evidence given to the Court on 19 February 2009. The solicitor also advised that Dr PM, in preparing his report of 12 February 2009, did not have the assessment and report of Dr LH dated 4 February 2009.

Decision of the Tribunal

The Tribunal has decided to confirm the order under review. That means that SC remains the limited administrator of the estate of the represented person with the function to seek legal advice on behalf of the represented person and to bring and defend actions, suits and other legal proceedings in his name and, if appropriate, to settle the same.
The order is to be reviewed in 12 months.

Relevant legislation

Under s 90 of the GA Act, upon review of an administration order, the Tribunal may, as it considers necessary in the best interests of the represented person, confirm the order, amend the order or revoke the order and substitute another order for it.
Before it can make an administration order, the Tribunal must be satisfied that the person is unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all or any part of his estate and is in need of an administrator (s 64(1) of the GA Act).
Mental disability is defined to include dementia, acquired brain injury, psychiatric illness and intellectual disability (s 3 of the GA Act).
The determination of capacity and need is made subject to the principles of the GA Act as stated in s 4. They are, relevantly, that the primary concern of the Tribunal shall be the best interests of the person; that every person shall be presumed capable of making reasonable judgments in respect of matters relating to their estate until the contrary is proved to the satisfaction of the Tribunal; that an administration order shall not be made if the needs of the person can be met by other means less restrictive of the person's freedom of decision and action and, in considering any matter relating to the person, the Tribunal shall, as far as possible, seek to ascertain the view and wishes of the person.
If an administrator is to be appointed, the Tribunal needs to be satisfied that the proposed appointee will act in the best interests of the person and is otherwise suitable to act as administrator of the person's estate. In this determination, the Tribunal shall take into account, as far as possible, the compatibility of the proposed appointee with the person (and with the guardian of the person, if one is appointed), the wishes of the person and whether the proposed appointee will be able to perform the functions proposed to be vested in the administrator (s 68 of the GA Act).

The represented person's capacity

The evidence of Dr PM, psychiatrist

The Tribunal had before it the reports of Dr PM dated 28 July 2005 and 12 February 2009. Dr PM also gave oral evidence on 12 May 2009. The Tribunal also had the transcript of Dr PM's oral evidence to the Court given on 19 February 2009.
It is useful to consider Dr PM's evidence in the order in which it was given.
Turning first to the report of 28 July 2005; in that report, Dr PM stated that, despite the represented person suffering a very significant neurological and neurovascular injury as a result of the motor vehicle accident, leading to numerous deficits (outlined in an earlier report not provided to the Tribunal), the represented person did have the capacity to conduct and settle the personal injury claim. He should, however, discuss such things with his legal advisor and supportive mother. Dr PM stated that the represented person was given to angry and impulsive behaviour and that he had more difficulty with expressing thoughts than with forming them. He was intelligent and usually rational depending on the circumstances.
In his report of 12 February 2009 (based on an assessment undertaken on 15 December 2008), Dr PM stated that the represented person had shown slow but not insignificant improvement since 2002 (at that time, Dr PM had diagnosed the represented person with an organic dementing process but had since changed his opinion).
Dr PM said that the improvement was not quite as much as the represented person liked to portray himself to others.
Dr PM stated that there had been some recovery of the represented person's higher functions, such as learning new information, organisation, judgment, cognitive skills and, to a lesser extent, mood. His shortterm and longterm memory and his general (rather than social or emotional) intelligence appeared to be adequate.
The report noted that the represented person continued to suffer from mood disturbance, in that he felt angry all the time and tended to be irritable and intolerant of frustration. He reported wanting to marry and have children but was lonely, socially isolated and was said to be chronically depressed.
According to Dr PM, the represented person's psychiatric diagnosis was that of personality change due to a vascular accident and associated head injury and a mood disorder with depressive features. He showed psychological rigidity and stubbornness.
Dr PM stated that the represented person had significant difficulty with verbal and, to a lesser extent, written expression. He continued to have significant problems with language and communication, word finding, reading and mathematics.
On examination, the represented person was oriented in time, place and person; his registration, attention and calculation were adequate, as was his recall and spatial construction abilities. His insight was good.
Dr PM stated that some of the represented person's symptoms may reflect frontal lobe deficits, particularly of some of the higher function skills such as social judgment, empathy and general social skills.
Dr PM was of the view that although theoretically the represented person could probably work part-time in a sheltered workshop, he doubted that his personality and some of his higher function losses would really allow the represented person to perform such work for any length of time. Despite this, Dr PM considered that the represented person had improved enough to properly manage his personal, financial and administrative affairs.
Dr PM characterised the represented person as not a reckless or unintelligent man and said that, if the represented person were to receive a very large award of damages, he would not expect him to make reckless decisions about how he would spend the money he acquired. Dr PM did not consider the represented person to be any more vulnerable than any other lonely 45yearold single man.
In his evidence to the Court on 19 February 2009, Dr PM expanded on the represented person's higher functioning deficits. These deficits, he said, were reflected in the subtle ways in which people interact, such as the social nuances, the politeness, as well as the judgment and perspective of the circumstances in which the represented person might find himself. Dr PM stated that a lot of the represented person's abstract functioning and social judgments were likely to be compromised.
Dr PM was of the view that the extent to which the represented person's deficits could be overcome would depend on the extent they were attributable to the brain damage (permanent condition) or the depressive disorder which might respond to medication.
Dr PM stated that the represented person would be difficult to treat because of his irritability, his problem denial and his stubbornness, which may have an organic component. He did not consider the represented person to be an unintelligent man ' … but there is something wrong with his computer. He does not function as well as his intelligence would suggest he should.' (T:184)
Dr PM stated that he would describe the represented person:
… more as having what used to be called frontal lobe problems, personality difficulties, as well as probably mood ability. Not too much problems with memory or intelligence native intelligence; he can calculate. It's the more sophisticated use of his intellect or his cognitive function, I would say. Cognitive pace, persistence, judgment, appropriateness. (T:200)
Despite the ongoing higher functioning deficits, Dr PM considered that the represented person had improved sufficiently such that he functioned fairly well in all ordinary daytoday matters (except to the extent of his social problems).
In his evidence to the Tribunal on 19 May 2009, Dr PM reiterated his view that the represented person had improved considerably, particularly since 2004. He found that the represented person could now discuss the more subtle aspects of quite a number of things and used the examples of choosing a store to go to, the quality of food and price. It appeared to Dr PM that the represented person had no difficulty understanding what he was saying to him.
Dr PM considered that currently the represented person was not suffering from depression.
Dr PM said he relied upon information from SC and LAC to assist him coming to a view that the represented person had deficits in social judgments (he was reported to say inappropriate and cruel things to his family) but that he did not seem to have many other significant deficits. Dr PM could not find much in the way of memory problems and said that the main functional deficit was the represented person's speech and his resultant frustration.
As regards the frontal lobe (higher functioning) deficits, Dr PM said he doubted that it was very significant in the case of the represented person because the main injury appeared to have been the stroke rather than the head injury. Dr PM said this was based on radiological and objective testing and the fact that the represented person's postaccident behaviour and personality were not unlike his behaviour and personality before the accident (although to an extent exacerbated). Later in his evidence, Dr PM said that the represented person may have subtle frontal lobe deficits:
I can't exclude those. All I can say is that they're not actually detectable. They don't seem to have any practical manifestations. I can't say it's simply language function, but it seems to be mainly that. (T:17)
When asked whether his assessment of the represented person's capacity would be enhanced by further neuropsychological testing, Dr PM stated:
If I'm presented with radically different information, then I would have to at least reconsider my assessment. Quite apart from the significance of the person doing the neuropsychological testing, neuropsychological (sic) would or it may miss the things we are concerned with; that is, the more subtle things, the judgment, what will he be like in six months with whatever and that's - and if you want to learn about that, you look at how he's seen to behave over a longitudinal period of time by those who know him…So neuropsychological testing is likely to come back and say he's pretty good. He still may have deficits and serious deficits in his judgment that would not be apparent in neuropsychological testing, but if you thought neuropsychological testing from an objective experienced qualified practitioner raised doubts, I would have to review things, including an examination, but I don't think that's likely, because I see a lot of neuropsychological testing…And when done by objective people, they tend to miss some of the subtle things and that's going to be picked up by these people who have known him for several decades. (T:23)
Dr PM said that if the represented person did have frontal lobe damage, his judgment could be impaired; however, he did not believe that the represented person would squander any large damages settlement he might receive because 'his personality isn't quite like that'. (T:19). Dr PM went on to say that the represented person was an ungenerous, selfinterested person who would likely be 'mean' as to the spending of his money and that he would ' … keep a close eye on his own interests'. (T:19:25)

The evidence of Dr LH, clinical psychologist

The Tribunal had before it the reports of Dr LH dated 28 January 2005 and 4 February 2009. Dr LH also gave oral evidence on 2 September 2009. The Tribunal was advised by the represented person's solicitor that Dr LH did not give evidence at the Court hearing, her reports of 12 January 2005 and 4 February 2009 having been accepted into the evidence by consent.
In her report of 12 January 2005, Dr LH outlined assessments carried out in 2003 and 2004 by a rehabilitation specialist and a clinical psychologist, and a neuropsychological assessment conducted on 24 June 2003. The latter assessment found, amongst other things, that the represented person had significant difficulty expressing the meanings of words and also identifying abstract relationships between words; that he had significant difficulties with mental arithmetic; that he had compromise in the area of his executive function, and that his performance on a number of tasks suggested that he was unable to retain and integrate instructions over a relatively short period.
Dr LH stated that in her testing of the represented person, she attempted to administer a full battery of tests in the areas of general intellectual functioning, memory and new learning, executive function and psychological assessment.
Dr LH stated that during the testing, the represented person could become very frustrated because of his language difficulties and, whilst he would persist in trying to give an answer, he could become quite perseverative, repeating the mistake over and over again.
The results of the testing were that the represented person functioned in the low average range of intellectual function, his processing speed was slowed and he had difficulties with working memory. The represented person understood more than he was able to adequately indicate and his expressive language difficulties would have operated to reduce his scores in this area.
Dr LH stated that tests of the represented person's executive functioning revealed difficulty with planning and reasoning, and that his difficulties with verbal expression did not entirely account for these problems. Although the represented person appeared to have improved from previous assessments, he continued to have significant expressive language and possible receptive language problems, and difficulties with memory and executive function, in particular, planning and higher level reasoning with verbal material.
At the time of the assessment, the represented person's psychological state was found to have deteriorated somewhat and he was reporting more depressive symptoms than previously.
In her report of 4 February 2009, Dr LH referred to the results of her 2004 testing of the represented person contained in her report of 12 January 2005. She briefly reviewed the represented person on 2 February 2009 with SC present.
The following was noted by Dr LH in the interview with the represented person and SC:
•The represented person was able to provide some information but continued to have difficulty expressing himself, becoming significantly frustrated when trying to find words. SC would sometimes provide information for him.
•The represented person reported (confirmed by SC) that he managed selfcare tasks and was able to drive. He managed his tight budget well, although found managing on a low income difficult.
•The represented person continued to feel lonely and despaired of ever having a relationship.
•The represented person knew what he wanted to say but getting out the words and putting a sentence together was difficult for him. With reading, he had difficulty understanding text longer than a paragraph. SC also noted that the represented person had difficulty coping with groups and keeping track of conversations.
•SC indicated that the represented person's longterm memory was intact but his new memories were not. She reported that it was much harder for the represented person to learn verbal material than nonverbal material. She informed Dr LH that the problems were not severe but the represented person could remember things incorrectly and be sure his recall was accurate. This would cause arguments.
•Both the represented person and SC reported that he continued to have problems keeping too much material in mind at once and as a result could become quite muddled up.
Dr LH did not conduct the full battery of testing that was undertaken in late 2004; however, even with limited testing, she was of the opinion that her assessment in 2004 remained unchanged.
As in 2004, the represented person would become frustrated with his language difficulties, and his persistence in trying to give an answer led to him repeating mistakes over and over. Dr LH said that the represented person's working memory remained significantly compromised for auditory/verbal material. He continued to reveal poor recall when he only heard material once, with some ability to benefit from repetition and better performance when cued.
The testing supported SC's observation about the represented person's memory. Dr LH stated:
… his recall contains errors and these are most probably related to difficulty with retrieving precisely what had been said, it also revealed that his errors can be persistent and he will be certain that the errors in his recall are correct. (page 4 of her report)
The testing by Dr LH also showed that the represented person appeared to lose track of what he was doing if he had to plan too many steps ahead.
Psychological testing revealed mild levels of depressive symptoms, somewhat reduced from Dr LH's 2004 assessment.
In her oral evidence, Dr LH stated that the represented person would have a reasonable idea about what he wanted to achieve but, because of the effects of the brain injury from the motor vehicle accident, he would not necessarily consider all relevant things in getting there. She gave the following example:
… say, for instance, someone offered [the represented person] a business opportunity, he may well not be able to keep in mind and take into consideration all relevant information that's needed to reach a reasonable decision. In fact, he's likely to lose at least some of it. That's the basis on which we make decisions, is by keeping a whole bunch of information in mind while we reach a conclusion. (T:17)
Dr LH said that she believed the represented person was capable of deciding, for example, that he wanted to purchase a property in which to live or a piece of equipment but, even in those situations, he was vulnerable to exploitation if befriended by unscrupulous people. In this respect, she disagreed with the view of Dr PM that, although the represented person was not a reckless person by nature, he was not in the same situation as other lonely young men. She said he had a physical disability and a significant communication problem and as a consequence might not see the potential adverse agendas of other people in his search for a relationship.
In response to the opinion of Dr PM that, although the represented person might have subtle frontal lobe deficits, they did not seem to have any practical manifestations, Dr LH stated:
I did give [the represented person] some reasoning tests that have been designed to look at executive functions or, using the same language as Dr [PM], frontal lobe functions that actually allow for a nonverbal response, and he still had problems. I think those problems are because he can't keep all the information together. (T:18)
… executive functions are a lot of things. They're a bit like the manager of a huge business. Executive functions, for instance, are involved in when you need to retrieve some material from memory in, you know, the seek and search part of it.
When some of the the connections between the frontal lobes, or problems in the frontal lobes and other parts of the brain are disrupted, what will happen is, the person will go in and retrieve the wrong piece of information. It might be something similar.
Then what paradoxically happens in that process is that then becomes, in their mind, as reality; that that information is how it is. It's quite common after a head injury for this type of thing to happen, that people have difficulty accurately retrieving material and that errors can become part of the memory and, from their point of view, true what actually happened or what they actually were told, whatever the case might be. (T:21)
Dr LH said that, given the considerable time that had elapsed since the accident in 2002, she did not expect the represented person's deficits to disappear or possibly change very much; however, it was important for him to have as much say as possible in how his funds would be expended but with protection in the making of large expenditures.
Dr LH said she was of the view that the represented person continued to need assistance to instruct his legal representative in the ongoing conduct of his claim.

The reports of the SHIU

At the review of the order for administration held on 12 December 2007, the Tribunal had before it a report of the SHIU dated 8 November 2007. That report referred to the neuropsychological assessment conducted in December 2004 (likely the assessment of Dr LH).
The conclusion of the SHIU at the time was that, because of the represented person's moderate to severe expressive dysphasia and a mild receptive dysphasia, he experienced difficulty in understanding complex or lengthy verbal and written communication. As a consequence, he could not reliably make informed financial decisions and would always require assistance with the interpretation of financial documents that would require him to interpret written information. The represented person would not be able to consistently articulate his intentions in a clear and understandable manner.
The SHIU provided a further report to the Tribunal dated 22 June 2009. The report stated that the represented person had recently initiated contact with the SHIU with respect to some correspondence he had received:
He required assistance with interpretation of the letter (he had misunderstood aspects of its content), developing an action plan to deal with the matter raised and to then undertake the necessary communication with a range of agencies to address the problem. I think that this incident provides a good illustration of how [the represented person]'s difficulties are likely to impact on his capacity to comprehend financial documents, form a plan based on an accurate understanding of the documents and to clearly communicate his plan and intentions to others.

Other evidence and submissions

The represented person attended both hearings of the Tribunal on 12 May 2009 and 2 September 2009. Due, no doubt, to his communication problems and reported difficulties, he did not participate extensively in the proceedings, relying mainly on SC and LAC (at the hearing of 12 May 2009) to provide information about his daily living and wishes.
At the hearing of 12 May 2009, SC informed the Tribunal that the represented person had given evidence in Court for his claim. His father had attended with him. SC said it was reported that he coped well 'so he did manage, but you have to go very slow and repeat sometimes'. (T:6)
SC said that the represented person was managing his pension income effectively.
As to the possibility of the represented person receiving a large sum from the claim, SC said that she did not think he would spend the money unwisely and that if he needed help, he would always ask, 'that is when he's not having a fallout with you or having a disagreement with you and that can be difficult'. (T:23 and T:24).
SC said that the represented person was 45 years old and had to be able to try and manage. The family would always be there for him but if he did not want assistance, that wish would be respected:
he is a grown person and I believe he has to do what he feels is right for himself. (T:24)
LAC, sister of the represented person, put it this way:
…if he got a fair amount of money, we would make sure that he got a financial adviser and we would make sure we got a good one for him. [The represented person] with money I might sit and talk about what I do with my money and what we're doing on our house. I know he's sensible, because sometimes he looks at me and goes he looks as if to say, 'What on earth are you spending all that money on that for?' So to me, he knows what money is about and what it buys and that. 'What on earth are you spending all that money on that for, [LAC]?' Well, I feel that he does understand and he would only buy what he needs for what he wants and I think the main thing is you put it with somebody that will guide him along, but he has the authority to do what he wants to do[,] with the guidance of the financial adviser. (T:24)
… And I think he would understand all that. At the end of that, he still does come to us for advice and I just honestly feel he can do it himself. (T:24)
… If he went through something else, we would end up with the backlash, because we'll be the ones saying no and I just don't think it's fair. He knows what he wants in his life. He is careful with money. He wouldn't just throw it away on a holiday or build this or you know, he would spend it on smaller items. (T:24; T:25)
At the hearing on 2 September 2009, SC agreed with the assessment of Dr LH that the represented person could not retain all of the information that was given to him and that he recalled incorrect memories but would insist they were accurate. Despite this, it was the view of SC that the represented person did manage well and that, on a onetoone basis when putting things to him very slowly, he did understand the things that were put to him. The represented person would seek the assistance of his family when he felt the need to do so.
The represented person was able to communicate to the Tribunal, with the assistance of SC, that he managed his pension income and would pay his bills at the post office by withdrawing the necessary cash from his bank account. SC said that the family helped the represented person by perusing the written correspondence he received, by writing things down, and writing letters for him. Even if there had been a falling out, the represented person would ultimately still seek assistance from the family.
SC said that the family, with the agreement of the represented person, had decided upon a financial plan should he receive a large sum of money from his claim. The plan was that the represented person and LAC would be required to jointly approve all large expenditure such as a holiday or a motor vehicle. The plan would be for the represented person's protection, and by that SC meant:
When [the Tribunal member]'s saying 'protection' … what she means is in case say you meet and we've talked about that if you meet a girl and the girl is saying, 'Look, can you lend me a hundred thousand?' That's what I'm saying. We've talked about that, haven't we? (T:45)
In respect to contact with the represented person's legal representative, SC said she would be present but that the lawyer would always discuss the case with the represented person. If the represented person experienced difficulties, she would assist.
SC said that, as next friend, she had decided that the represented person's claim should go to trial because the matter was taking too long to finalise.
The represented person's solicitor, who attended the hearing on 2 September 2009, said he was of the view that he could take instructions from the represented person if a next friend was not in place. He had formed this view on the basis of the assessment of the represented person by Dr PM, in particular, the assessment in late 2008 detailed in the report of 12 February 2009 (see above).
SC said that the represented person was fiercely independent and should be allowed to do what he wished to do. If this did not happen, it would lead to more problems. She framed her opinion in the context of 'I have to go with what I feel is right for [the represented person], I really do', and further, 'I think for him, he needs to continue with his independence'. (T:41:45)
If an order for administration was to remain in place, SC said that she would continue to consent to her appointment.

The wishes of the represented person

As already mentioned in these reasons, the represented person did not participate significantly in the proceedings due to his communication difficulties. However, through SC's evidence in particular, and the represented person's own remarks at the hearings on 12 May 2009 and 2 September 2009, it was clear to us that it was the wish of the represented person to be free of any administration order. It was also apparent to us that the represented person would generally consult his family, particularly SC and LAC, as the principle source of assistance in the conduct of his legal action and in the carrying out of his daily life.

The question of the represented person's capacity and the need for the appointment of an administrator

To decide if the represented person is in ongoing need of an administrator, we must first decide whether he is unable, by reason of a mental disability, to make reasonable judgments in respect to matters relating to all or any part of his estate. (s 64(1)(a) of the GA Act)
A person is presumed to be capable of making reasonable judgments in respect of matters relating to his or her estate until the contrary is proved to the satisfaction of the Tribunal (s 4(2)(b)(iv) of the GA Act).
The resolution of the question of capacity involves finding the presence of a mental disability and deciding to what extent that disability impacts on the ability of the person to make 'reasonable judgments' about his or her estate. The test is set against that person's particular estate: see FS [2007] WASAT 202 (FS) at [103] [106].
The cognitive task in the making of a 'reasonable judgment' is the outcome of mental process that involves knowledge, understanding and evaluation (FS at [108] and [109]).
It is common ground that the represented person has a mental disability as defined in s 3 of the GA Act (see above). He has an acquired brain injury resulting from the motor vehicle accident and stroke in 2002 and, according to the diagnosis of Dr PM, a psychiatric condition arising from the head injury and stroke.
The question for us is the extent to which the mental disability affects the represented person's ability to make reasonable judgments about all or any part of his estate.
We have before us specialist opinion which is in some conflict. The psychiatrist, Dr PM, considers the represented person is able to manage his current financial and legal affairs and, if it comes to pass, to manage a large damages claim. Dr LH, clinical psychologist, is, on the other hand, of the view that the represented person's deficits render him unable to conduct his claim or manage a large sum of money which might be awarded to him.
In large measure, the difference in the specialist opinion centres on the extent to which the represented person's higher brain functioning (frontal lobe or executive functioning) is impaired as a result of the brain injury he has suffered.
There is common ground that the represented person suffers from severe expressive dysphasia, that is, the inability to put thoughts into appropriate words. The evidence of SC (supported by the assessment of Dr PM) is that, if sufficient time is spent explaining things to the represented person, then he is able to understand what is put to him and provide a suitable response.
We do not, on all the evidence, accept this is always the case and find that it is more likely that, in the words of the SHIU assessment, the represented person is unable to consistently articulate his intentions in a clear and understandable manner. We find in this way not only because of his communication problems but also because, in our view, the evidence shows that he has a problem with his memory which can affect his evaluation of ideas and questions that are put to him.

We accept the evidence of Dr PM that the represented person is impaired in his social functioning and that, in a social setting, he will tend to misinterpret the situation in which he finds himself as well as the nuances of the social interaction. This view is supported by the evidence of SC.
We do not, however, accept Dr PM's assessment that, in all other respects, should the represented person have other higher functioning deficits, that those deficits are not detectible or do not seem to have any practical manifestations. In coming to this view, we note an apparent inconsistency in the tenor of Dr PM's evidence to the Court as against his evidence to the Tribunal. The former represents a less optimistic view of the represented person's abilities than the latter and the former is more consistent with the assessment of Dr LH and the SHIU.
Dr PM's evidence is qualified by the comment that should neuropsychological testing raise doubts about his assessment of the represented person (which he thought unlikely), then he would need to reconsider his opinion. Unfortunately, Dr PM did not have the benefit of Dr LH's report when he conducted his own interview with the represented person. Some of the observations of Dr PM are consistent with Dr LH's assessment and SC's reported observations. For example, Dr PM refers to 'psychological rigidity' and 'problem denial' by the represented person. This is not consistent with the statement that the represented person's insight is good, and is more consistent with the assessment of Dr LH. The observations of Dr PM given in the Court and in the Tribunal confirm that the represented person's impairments are significant. We do not accept the conclusion Dr PM reaches as to the capacity of the represented person following these observations. In this regard, we prefer the evidence of Dr LH following her formal testing of and consequent evaluation of the represented person's impairments. To the extent that the opinions of Dr PM and Dr LH differ, we prefer the opinion of Dr LH.
What Dr LH found through neuropsychological testing, and we accept, is that the represented person's working memory is significantly compromised and his recall contains errors that he does not recognise. This impairs his ability to keep in his mind and take into account all relevant information in consideration of an idea or proposition. Contrary to what Dr PM assesses, this particular deficit is detectable as attested by the evidence of SC (she says that the deficit leads to arguments with the represented person). This deficit also clearly has practical implications because, as Dr LH states, were, for example, a business opportunity to be put to the represented person, his evaluation of that opportunity would likely be based on faulty, internally generated information.
What increases the represented person's vulnerability is the fact that, in his frustration at not being able to adequately express himself, Dr LH has found that he will persist with a response even if it is mistaken or incorrect. His reliance on others for explanation and clarification of information, as acknowledged by Dr PM and Dr LH and confirmed by SC and LAC, is also relevant to his vulnerability.
The opinion of Dr LH that the represented person can decide, for example, that if he received a large sum of money he should purchase property in which to live, is not inconsistent, in our view, with her other findings. The purchase of a residence in the circumstances of receipt of significant funds would be an appropriate decision, but at the level of decisionmaking which requires an evaluation of what would be the best purchase and negotiating a contract, the represented person would, because of his particular deficits, be found wanting.
The generally optimistic outlook of the represented person's abilities held by SC and LAC is, in our view, based in part on an understandable wish and hope that he be afforded the greatest possible independence in his life, as well as an understandable concern at the impact that his intense frustration will have on the relationships with his family if he is not given that independence. LAC here speaks of a 'backlash' and SC, in the context of the represented person's reported fierce independence, says that she must go with what she sees is right for him.
In light of what we have found to be the represented person's deficits, we must further decide how they impact on his ability to make reasonable judgments about his estate and whether that leads to an ongoing need for an administration order. The estate in question can be said to comprise the represented person's social security pension and the expenditure of that pension for his daily needs; the conduct of his claim in the Court; the possible damages award, and the costs of the Court action.
We note here that the Court proceedings have been adjourned until finalisation of the Tribunal's review of the administration order. In this circumstance, it is a practical possibility that the represented person may be awarded a sum in respect of his claim. Clearly, at the time of the review, the outcome of the proceedings is unknown. The conduct of the claim is, however, ongoing and requires consideration of the judgment of the Court and a further evaluation of legal advice in the process of deciding what to do next.
Because of his deficits in the process of evaluation and in his working memory (higher brain functioning), we find that the represented person remains unable to make reasonable judgments in the ongoing conduct of his claim. The claim has been conducted through his next friend since it was first made and, since the administration order is confirmed, the proceedings will continue to be conducted, as we understand it, according to the provisions of O 70 of the Rules, that is, by next friend, as the represented person is under disability. We note the 2005 opinion of Dr PM that the represented person was then capable of conducting and settling the personal injury claim, but we give it little weight given the assessment of Dr LH based, as hers is, on formal neuropsychological testing, and the fact that no action was taken to seek review of the administration order made in 2002 at the time Dr PM expressed his opinion.
We are satisfied that at the level of managing his pension income, the represented person can make reasonable judgments about the expenditure for his daily needs. If we are wrong about this, he has the informal support from his family in this regard and this is a less restrictive means by which this need can be met. Consequently, we will not include the pension income in the administration order. We note, however, that the represented person must still rely upon others to interpret written material given his tendency to misunderstand the content of the written word (as his recent contact with the SHIU demonstrates).
Although we have said that we should not structure the administration order on the basis of an assumption of the outcome of the represented person's claim, we can say that, had we been faced with a large award of damages which, if paid directly to him would form part of the represented person's estate, we would have included the protection and management of the award in the authority of the appointed administrator. We would have done so on the finding of the represented person's higher functioning deficits that we have made, which are supported by the concerns that his family has of his vulnerability, as evidenced by the proposed arrangement that certain expenditure not be made by him alone.
We are not satisfied that the represented person's higher functioning deficits would, as in the opinion of Dr PM, be compensated by his personality type, meaning that he would be careful with his money. We accept the assessment of Dr LH that the represented person is a highly vulnerable individual open to the exploitation of others because of his cognitive deficits, his reliance on others to assist his communication, his social isolation and his loneliness.
The order that we make deals with the situation as it currently is for the represented person. The scope of the order will therefore be the same as the order made in 2007, that an administrator be appointed with the function to seek legal advice on the represented person's behalf and to bring and defend actions, suits and other legal proceedings in his name, and if appropriate, to settle the same.
We acknowledge that the order is contrary to the wishes of the represented person; however, we are of the view that it is in his best interests that the protection provided by the order should continue.
As to who should be appointed administrator, SC continues to give her consent to her appointment despite her submission that the order should be revoked. There is no opposition to her ongoing appointment and the Tribunal is satisfied she continues to meet the requirements of s 68 of the GA Act (see above) in respect of the current scope of this order. Depending on the terms of the judgment of the Court, there may be a need for the order to continue or to be recast in different terms. In our view therefore, the order should be reviewed again in the short term. We think 12 months is the appropriate time.

Order

The order of 12 December 2007 is confirmed that:
1.[SC] is appointed the represented person's limited administrator with the following function:
•To seek legal advice on the represented person's behalf and to bring and defend actions, suits and other legal proceedings in his name, and if appropriate, to settle the same.
2.The order is set for review in 12 months.

I certify that this and the preceding [122] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR J MANSVELD, MEMBER