Re JTF; - [2010] WASAT 14

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: HUMAN RIGHTS

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION: RE JTF; EX PARTE JTF [2010] WASAT 14

MEMBER: MS F CHILD (MEMBER)

HEARD: 25 MARCH 2009

DELIVERED : 1 FEBRUARY 2010

FILE NO/S: GAA 377 of 2009
EX PARTE
JTF
Applicant

Catchwords:

Guardianship and administration Review of administration order Diagnosis of mental illness and history of substance misuse Mental health currently stable Presumption of capacity not set aside

Legislation:

Guardianship and Administration Act 1990 (WA), s 4(2), s 64, s 86, s 90

Result:

Order appointing an administrator revoked

Category: B

Representation:

Counsel:

Applicant: Self-represented

Solicitors:

Applicant: Self-represented

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

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

A man with a diagnosis of mental illness and a history of substance misuse applied to the Tribunal for review of an administration order which appointed the Public Trustee as the plenary administrator of his estate.
Having considered the medical evidence from the man's treating doctor and his former psychiatrist, and the man's written and oral submissions, and from others at the hearing, the Tribunal revoked the order, as it was not satisfied that the presumption that the man was capable of managing his own affairs, set out in the Guardianship and Administration Act 1990 (WA), had been set aside by all the evidence. The current medical evidence was that the man's mental illness was stable, and he submitted that he was in a position to manage his own financial affairs and had family and other supports to assist him to do so if necessary. The Tribunal concluded, based on the medical and other evidence, that while the man had a diagnosed mental illness, there was insufficient evidence to support the finding that he was unable, by reason of that disability, to manage his own affairs.

Application

An application was made by the represented person seeking review of an order dated 23 August 2006, by which the appointment of the Public Trustee as plenary administrator of his estate was confirmed. The represented person is a man of 37 years of age. He lives in a country town in which his parents also live. His mother and a friend accompanied him to the review hearing. His application for review was heard in March 2009. Brief oral reasons were delivered at the conclusion of the hearing. Written reasons for the decision made by the Tribunal were requested in November 2009 by the Director of Legal Aid WA, through the regional office which had assisted the represented person in the preparation of his written submissions for the review. These submissions were of considerable assistance to the Tribunal in reviewing this matter.

History of orders

The original order, which appointed the Public Trustee as the administrator of the estate of the represented person, was made on 5 September 2005 and was reviewed a year later and the order confirmed. The original applicant for the appointment of an administrator for the estate of the represented person was the team manager for the Community Mental Health Service in the town in which the represented person lived. At the time of the original application, and now, the represented person's income is a Disability Support Pension. The application stated that the represented person had a long history of treatment for paranoid schizophrenia and that he was 'not able to grasp the concept of budgeting and gets into major debt which affects his mental health and has led to him being homeless in the past'. In his submission to the Tribunal for the review of the order, the represented person acknowledged this background, stating:
I was put under guardianship [sic] [it is presumed the represented person means administration] as I was suffering schizophrenia, and had a drug addiction. I had a number of debts and was unable to look after my financial affairs.

Legislation

Orders made for the appointment of an administrator under the Guardianship and Administration Act 1990 (WA) (GAA Act) are not permanent. The legislation requires that they be reviewed periodically. This occurred in this case in 2006. This application was made pursuant to s 86 of the GAA Act, by which the represented person sought review of the order.
On review of an order, the Tribunal may confirm, amend, substitute a new order or revoke an order (s 90 of the GAA Act).
In any proceedings brought under the GAA Act, the Tribunal is required to observe the principles set out in s 4(2) of the GAA Act. Those principles provide that the primary concern of the Tribunal must be in the best interests of the represented person, that every person shall be presumed to be capable of looking after their own health and safety and making reasonable judgments in matters relating to their person, managing their own affairs and making reasonable judgments in matters relating to their estate until the contrary is proved to the satisfaction of the Tribunal. The principles also include that orders should not be made if the needs of the person could, in the opinion of the Tribunal, be met by means less restrictive of that person's freedom of decision and action. Any order made should be in terms that impose the least restrictions possible in the circumstances on the person's freedom of decision and action. In considering any matter, the Tribunal is bound to attempt to ascertain the wishes of the person as expressed or gathered from that person's previous actions.
To make an administration order originally or on review, the Tribunal must be satisfied that the person in question is a person for whom an order can be made, that there is a need for the order and that there are no less restrictive means by which the person's needs can be met. Firstly, the Tribunal must be satisfied that the person concerned is unable, by reason of a mental disability, to make reasonable judgments in respect to matters relating to all or any of his estate (s 64 of the GAA Act).
In support of his application for review, the represented person submitted:
I have been under the care of the [P]ublic [T]rustee for the past [three and a half] years[.]
I was put under guardianship as I was suffering schizophrenia, and had a drug addition. I had a number of debts and was unable to look after my financial affairs.
I have been free of drugs for approximately 5 years now. My debts have been paid by the public trustee. I was previously under the care of the Mental Health Team at [ ] Regional Hospital. However, I was discharged from [the] Mental Health program in July 2008 to the care of my General Practitioner, Dr [S].
In terms of my medication, I attend the [ ] Medical Practice fortnightly where I receive a slow release depot injection by the nurse for my schizophrenia. I have been compliant with this course of treatment since discharge. Dr [S] monitors me and advises me on appropriate medication, dosage and treatment.
In terms of my social wellbeing, I attend Lotteries House where the Outreach Support Services [sic] put on programs for people with similar mental health problems as me. The Outreach Support Service takes us out for activities and encourages us to get physically and mentally active. I also attend Fellowship House, which is a place where I can socialise with people with common problems. We attend social events such as barbeques, perform activities such as creating art, and go out for coffee etc.
I enjoy attending Lotteries House and Fellowship House and I do this regularly. I have made friends there and intend to continue to participate in activities and social events with my friends.
…
I feel that I am now in a position to look after my own financial affairs. This is important for my independence and my self-esteem. I have been working very hard to gain control of my life and I believe I now have done this. I am managing my mental illness with the help of medical professionals, and also social workers. I live on my own and am independent. The Mental Health Team deemed it appropriate to discharge me over 6 months ago.
The medical practitioner who currently is responsible for monitoring my mental wellbeing and appropriate dosages of my medication is Dr [S]. Dr [S] advises in his letter dated 1 October 2008 that I receive regular treatment and review[,] and my health is such that he feels I would be in the position of managing my own financial affairs. I agree with Dr [S].
If successful in this application, I plan to use Centrepay to pay my rent, electricity, telephone bills, and finance. I believe I am capable of paying my own bills, and utilising Centrepay where possible.
I am making this application because it is important to me that I have control over my financial affairs. It is important for my self-esteem and to regain my independence. I feel that I am now able to prioritise and manage my finances capably, and make responsible financial decisions without the involvement of the public trustee.
On review, the Tribunal considered written evidence from Dr S and Dr M.
Dr S is a general practitioner and provided a brief report stating:
It is my opinion [the represented person], age 36 yrs, receives regular medical treatment and review[,] and his health is such that I feel he should bre [sic] in the position of managing his own financial affairs.
Another letter, dated 3 September 2008, addressed to the represented person from Dr M, a consultant psychiatrist, was submitted. The letter states:
I am writing in response to your letter about taking control of your finances.
You were discharged to the care of Dr [S] as you had been settled, but this does not mean that you do not need ongoing support. You have continued to experience at least some psychotic symptoms while I was seeing you in clinic. You have a schizophrenic illness and you need to continue your medication and follow up with Dr [S]. You may also need further input from mental health services in future.
I note that the referral for support was made to the Public Trustee in 2005. At the time[,] you were unwell and struggling with your finances. You were in debt and this debt had been handed over to the debt collectors. The notes also indicate that you have become homeless in the past due to difficulties managing your money.
I think that it is good that you have been compliant with your depot medication and follow up, but it [is] important that you recognise that your illness puts you a [sic] risk of relapses in future and that this may be accompanied by difficulties managing your money. Housing is becoming very hard to find and even the patients on priority listing may wait months to years to get appropriate housing.
My advice would be that you continue to allow the Public Trustee to manage your money.
In a standardised report dated 12 September 2009 completed at the request of the Tribunal, Dr S confirms that he is a general practitioner who has known the represented person for 10 years and is his regular medical attendant. He states that the represented person's diagnosis is schizophrenia and he notes that the represented person 'attends regularly for ongoing injections. Mental function is stable'. In respect to the question as to whether the represented person can make reasonable decisions now, in relation to his financial affairs, Dr S's opinion is that the represented person is capable of making such decisions and of giving an enduring power of attorney. Dr S refers to reports from the Community Mental Health Team and psychiatrist, Dr M.
In addition to the represented person's submissions and medical reports, a letter from the friend of the represented person is also before the Tribunal. The friend says he has known the represented person for 20 years, has seen a decline in his mental health in early 2000 but, more recently, has seen him make substantial progress in his ability to manage his mental illness through the assistance of the Mental Health Unit at the [ ] Regional Hospital. The friend notes that there have been issues with accrued debt, some debt extending back to a period when the represented person was mentally ill, including entering into mobile phone contracts. The friend asserts that the represented person accumulated large bills trying to reconnect with friends he had lost contact with during his illness. The friend notes that, for the past three years, he has been living back in the town in which the represented person lives and has noted a significant improvement in the represented person's ability to 'selfmanage'. He notes that the represented person regularly receives 'medicinal support that best suits his mental illness and has been formally discharged from the Community Mental Health Team'. He states that the represented person:
demonstrates an ability to engage in rational and logical conversation … and has a significantly increased ability to better manage his financial affairs, demonstrated by borrowing money from me and consistently meeting the commitment to repay the temporary loan.
In the course of the hearing, the Tribunal heard from the represented person, his mother and the friend. When asked, the represented person's mother expressed concerns and supported the view of Dr M. She said this was because she had been told that the represented person was still in debt. The mother agreed that she was not told a great deal by her son, but it was noted in a report from the Public Trustee that most of the debts of the represented person had either been written off or had been paid. There was one remaining debt for a dental account of $440. The debts which had been settled by the Public Trustee during the course of the administration included accounts from telephone service providers. One had been 'written off' and, in one case, the creditor accepted less than half of the amount owing in full payment of the debt. The represented person's mother believed that when the Public Trustee was handling her son's finances, he was less anxious and angry. She was concerned that he had become frustrated because he had a lot of bills to pay, and he would not let the family help him and believed he could manage it himself. She said she had not appreciated that the debts had been largely settled. She said that her son had never been able to manage his money and that the family was not now in a position to help him financially because they were retired. She believed that he was still vulnerable because he had the potential to borrow money and may not be able to repay it. She remained concerned about the ability of her son to manage his finances.

Reasons

In his submissions to the Tribunal, the represented person acknowledged that he has a mental illness and is receiving treatment for that illness. He has been discharged from the mental health service, and his health care is now managed in the community by his general practitioner. The reports of Dr S and Dr M both support this. The letter from his friend notes that he is receiving assistance for his mental illness. The letter of Dr M, the consultant psychiatrist, notes that he may need further input from mental health services in the future, and this is possible.
The mental illness with which the represented person has been diagnosed is a mental disability within the meaning of the GAA Act, but the existence of a mental disability does not, of itself, mean that an administration order can be made. There must be evidence of an incapacity of the represented person to make reasonable judgments about his estate by reason of that disability (s 64 of the GAA Act).
The represented person's own submission is that he acknowledges that he has in the past had a drug addiction together with his mental illness, and that he accrued debts at that time. He now states that he is able to manage his finances, and plans to use Centrepay to assist him. This is challenged to some degree by his mother, who states that she considers that he remains vulnerable and is unable to manage his money. This view is countered by his friend, who states that money loaned by him to the represented person has been repaid.
The income of the represented person is very limited. Any person on such an income will likely experience considerable difficulty in 'budgeting'. Added to this, the represented person has not had complete control of his financial affairs because of the operation of the administration order for the past five years. The effect of this is that evidence of the represented person's money management is limited. What evidence there is - his repayment of loans to his friend and his proposal to use Centrepay to assist him to manage his limited income suggests appropriate planning and capacity rather than the reverse.
The real question is whether the represented person remains a person for whom an administration order can be made. To make such an order, the incapacity of a person to make reasonable judgments must be proved to the satisfaction of the Tribunal. The evidence from Dr S, although he is not a psychiatrist, is the most recent. He is the current treating doctor of the represented person. Dr S's opinion is that the represented person is capable of making reasonable judgments about his financial affairs and that he is capable of giving an enduring power of attorney. The discharge of the represented person to the care of his general practitioner indicates an improvement in his mental health.
There is concern expressed by the represented person's mother, and in the letter from Dr M, which advises the represented person to 'continue to allow' the Public Trustee to manage his finances. It is understood that these views are based on the known history of difficulty the represented person has experienced, but they are not evidence of incapacity on the part of the represented person to manage his own finances now.
The totality of evidence does not support the continuation of the administration order, because the evidence does not rebut the presumption that the represented person is capable of managing his own finances.

Wishes

The Tribunal is bound to ascertain the wishes and views of the represented person by his application and, in the hearing, the represented person asked that he manage his own affairs, and he notes in his submission that this is important for his independence and selfesteem.

Conclusion

Having considered all the material before me, including the submission of the represented person and the reports of Dr S and Dr M, the evidence does not persuade me that the represented person is a person for whom an order may be made. Therefore, the order is revoked.

Order

The Tribunal makes the following order:
On review, the administration order is revoked.

I certify that this and the preceding [25] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS F CHILD, MEMBER