Re: SD - [2007] WASAT 229

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: HUMAN RIGHTS

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION: RE: SD [2007] WASAT 229

MEMBER: MS H LESLIE (SENIOR SESSIONAL MEMBER)

HEARD: 19 FEBRUARY 2006

DELIVERED : 4 SEPTEMBER 2007

FILE NO/S: GAA 1904 of 2006

BETWEEN: RE: SD
Represented Person

Catchwords:

Guardianship - Administration - Capacity

Legislation:

Guardianship and Administration Act 1990 (WA), s 4, s 4(2)(a), s 4(2)(c), s 4(2)(d), s 4(2)(f), s 43(1)(c), s 64(1)

Result:

The administration order appointing the Public Trustee as Administrator is confirmed and is to be reviewed on 4 September 2012

Category: B

Representation:

Counsel:

Represented Person : Selfrepresented

Solicitors:

Represented Person : Self-represented

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

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

Upon a periodic review of the order appointing the Public Trustee as her plenary administrator, SD sought revocation of the order on the basis that she was well enough to manage her own financial affairs. Upon a consideration of the medical evidence (current and past), and upon hearing from SD and her mother, and principle support, MM, the Tribunal did not accept that this was so, found SD to be lacking in capacity and in need of an administrator and reappointed the Public Trustee as plenary administrator with a direction that the administrator liaise with MM.

Applications

The application before the Tribunal for determination is an application for the review of the order for administration made 23 November 2001 (the order).

Previous orders

The order appoints the Public Trustee as plenary administrator for SD for five years and directs the administrator to consult with SD's mother MM in relation to the administration of SD's estate.

Background

The 2001 application that resulted in the order being made, was made by a social worker at the hospital where SD was being treated for a paranoid psychosis. She was, at the time, noted to also have a mild intellectual disability and to have a substance abuse (drug) problem. She was said to have a cognitive impairment which interfered with her capacity to make reasonable decisions or judgements in relation to her personal health care, her living situation and her financial affairs. She was said to be insightless into her illness and need for treatment, to be unable to maintain accommodation or live independently and to be unable to budget for herself, spending her disability support pension in one day. She was also said to be incapable of executing an enduring power of attorney. Her doctor also referred to her fluctuating condition and poor prognosis without "ongoing treatment and supervision". Evidence in the form of discharge summaries from previous hospitalisations in 1994 and 1999 revealed the longstanding nature and severity of her problems. The social work report prepared for the 2001 hearing referred to the "decline in [SD's] psycho‑social functioning" as a consequence on inadequate treatment in the past, her disorganised, unpredictable and aggressive behaviour and the difficulties that this places on her relationship with MM who is her main support. It referred also to SD's vulnerability to exploitation and extortion and her budgeting difficulties.
The Public Advocate was involved in the hearing process and supported the making of the order in SD's best interests.
When the matter came on for review (as was required after five years) (the first hearing), the hearing was attended by SD and MM. (SD sought revocation of the order, claiming that she was well and could now manage her affairs.) Both gave some evidence to the Tribunal and then the matter was adjourned for further medical opinion. Upon reconvening on 16 January 2007 (the second hearing), the matter was further adjourned as the further reports had not been able to be obtained. No‑one attended that hearing. A further hearing was convened on 16 February 2007 (the third hearing), attended by MM (SD was with her) by telephone link. At that time the Tribunal reserved its decision.

Capacity

The review process requires the Tribunal to again consider the issue of capacity as a precursor to the consideration of application for review of the order.
Section 4 of the Guardianship and Administration Act 1990 (WA) (GA 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 64(1) of the GA 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 ... [and] ... is in need of an administrator of his estate".

Evidence

At the first hearing, SD indicated that she wished to have the control of her financial affairs returned to her, stating that she "is reliable" and no longer ill or involved in drug abuse. SD stated that she wanted to feel normal and have her independence; that she didn't want the order to continue as she felt it took away her dignity. She stated that she had "learned her lesson", was no longer so trusting of other people and that she no longer used drugs or associated with drug users or criminals.
She and her mother spoke a little of their domestic circumstances and some of the pressures, of SD having to be hospitalised at Sir Charles Gairdner Hospital twice in 2006 and of her having had a number of what MM describes as "little strokes" requiring treatment on at least some occasions at Joondalup Hospital.
There was no attendance at the second hearing.
At the third hearing, MM gave evidence by phone. In describing the way that things work regarding SD's finances, MM stated that SD did not go out much, that she (MM) did the shopping etc for SD, spending most of SD's allowance on cigarettes at SD's request and that save for periodic advances from the Public Trustee, MM supported SD in most respects. MM expressed the candid view that SD was "not going that well", that she could not manage her money herself and that she was still very vulnerable to any associates from the "drug culture". She indicated that SD spoke of using her money to go and live in Sydney. MM confirmed that SD had not been in hospital since the first hearing, that she had been seeing the doctor as required, save for two missed appointments, that "the doctor says she is doing well" and that SD appears not to have taken drugs for many months. She stated that SD did no want to engage with other services or supports. MM also confirmed that the hospitalisations in mid‑2006 had been after drug use and that SD had only stayed one day on each occasion.
SD was present with MM during her evidence by telephone, but became upset with what MM said, and could be heard by the Tribunal crying and shouting in the background. She did not wish to give evidence or to speak on the phone with the Tribunal despite the encouragement of MM.
The Tribunal had before it medical and other reports from the previous hearing as outlined above. The Tribunal also had a report in the form of the Tribunal's Doctor's Guide from Dr I, dated 4 November 2006, (Report 1) together with a more detailed report, dated 22 November 2006, (Report 2) signed by Dr I and Dr W. A report was also received from Dr C concerning the circumstances of two admissions of SD to hospital in June 2006 (Report 3). Despite enquiry, no other medical evidence was available.
In report 1, Dr I stated that she had only met SD once. She stated that SD's capacity to make reasonable decisions in relation to the specified areas was "Not Fully Assessed". She went on to speak in general terms about the nature of the type of illness that SD has, which she described as "fluctuating" as follows: "Schizophrenia is a chronic illness with relapses and remissions with improvement in social and operational functioning and cognitive impairment which tends to be progressive over time. [SD's] illness stability is compromised by a longstanding problem with illicit substance abuse." She further expressed the view "I believe [SD's] capacity would be compromised by her illness fluctuations and intermittent drug use leading to poor choices". She expressed the view that SD would be capable of executing an Enduring Power of Attorney and making "a significant contribution" to the hearing.
Reports 2 and 3 were written in response to a request sent from the Tribunal for further information. In Report 2, Dr I provided further information and opinion stating
" … Thank you for your letter dated 15 November 2006 requesting further information for consideration in the matter of the administration order, which [SD] is challenging.
[SD] is a 31 year old single woman who lives with her mother and is on a disability support pension. I have reviewed her on one occasion at the Clinic and on another occasion at her family home. She has had a long history of contact with psychiatric services with admissions to Sir Charles Gardner Hospital, Graylands Hospital and Royal Perth Hospital Psychiatric Units since 1994. Her diagnoses include Schizophrenia, Borderline Personality Disorder and Polysubstance abuse and dependence. [SD] has also had a previous admission to the Frankland Unit for assaultive behaviour.
From a medical perspective [SD] has had a previous Cerebrovascular accident in 2004 following shooting up a medication called Buprenorphine. This apparently has left her with some residual right sided numbness but I am not aware of any specific cognitive deficits as a result from this.
In the past [SD] has led a chaotic lifestyle being itinerant with extensive poly drug use and prostitution in the past. She has made previous suicide attempts although states that the last of this was several years ago.
Her current medications are, Risperidone 4 mg twice a day, Quetiapine 400 mg at night, Diazepam 10 mg twice a day and Nitrazepam 10 mg at night. [SD] picks up these medications on a daily basis due to her previous overuse of some of these medications.
With respect to her treatment this year, I am aware of one admission to Sir Charles Gardner Hospital, which was for a day in June 2006. On this occasion [SD] presented to the Emergency Department with psychotic symptoms but stayed on the ward for less than 24 hours and left the ward without leave apparently in the company of another patient. I believe that she had a subsequent admission to Royal Perth Hospital although I have not been able to gain any information about this admission. Following this admission she was discharged into her mothers care and the follow up at the Osborne Psychiatric Clinic.
As I noted earlier she has attended one formal appointment with myself at the Clinic and has not attended at the Clinic subsequent to this despite being offered appointments. At our first meeting [SD] presented quite bright and with no features of psychosis or depression. Significantly she denied any ongoing use of illicit substances. On the visit to her home with a Community Nurse she was more agitated and distressed due to some ongoing stresses but still denied any ongoing psychotic symptoms. I changed her medication at this time and have offered her a further appointment to come to the Clinic and we have referred her to the Ruah support agency.
I note the longstanding history of impairment in judgement with regards to her lifestyle, drug use, accommodation needs and attending to her medical and psychiatric needs. I believe the insight into her psychiatric illness is also poor, which would effect her judgement with regards to choices about medication and psychiatric management particularly at times of exacerbations in her illness and this limits her capacity to manage her own affairs.
Please contact me at the Clinic if you require any further information ..."
The report was signed by Dr I, psychiatric registrar and counter‑signed by Dr W, consultant psychiatrist.
Report 3 stated:
"I refer to your letter/request to [Dr B] dated 12 December 2006.
[SD] had 2 admissions to Ward D20 – Psychiatric Ward at Sir Charles Gairdner Hospital in 2006.
1st admission: 7 June 2006,
The above named patient left the ward without informing staff on 8 June 2006.
2nd Admission: 24th June 2006
The above named patient left the ward without informing staff on 29 June 2006.
Circumstances of the Admissions:
1st Admission:
Patient self presented to the Emergency Department after becoming intoxicated and arguing with her mother on the background of a deteriorating mental state.
2nd Admission:
Patient self presented in crises following loss of accommodation after her partner of seven years ended their relationship ‑ she was asked to leave the home. There was a history of amphetamine use two days prior to admission.
Presentations on Admission (s):
1st Admission:
Patient was alert, orientated and co‑operative. She was seen as possibly intoxicated, had good eye contact and was dishevelled in her appearance. Speech was spontaneous, dysarthric with good prosody.
She reported her mood as depressed but was objectively dysphoric.
Her affect was inappropriate, teary at times.
There were no delusional context to her thoughts, no thought disorder and no auditory hallucinations.
The patient had described chronic auditory hallucinations, as well as anhedonia thoughts of hopelessness and worthlessness. She had reported an increase in appetite and weight gain. She had told ambulance officers she would jump in front of a train prior to admission.
2nd Admission:
Patient was alert, co‑operative.
She appeared dishevelled.
She complained of auditory hallucinations.
She reported suicidal ideation, but guaranteed her safety on the ward.
At her first medical review on Ward D20 she reported her mood as being "low" – objectively she was euthymic to dysphoric.
Her affect was appropriate and reactive. No psychotic phenomena was observed.
Her insight was seen as partial. Her judgement was described as sound.
Capacity to handle own financial affairs:
An opinion regarding her ability cannot be expressed due to the limited contact we have had with the patient.
From the file, I note that the patient has had an admission to the Emergency Department of Sir Charles Gairdner Hospital from 30 June 2006 and was discharged on 3 July 2006."
The report was signed by Dr C, consultant psychiatrist.
In summary, the professional evidence is that SD suffers from chronic schizophrenia and may also have borderline personality disorder and an intellectual disability all of which impair her judgement and ability to manage her financial affairs; that her insight is poor and that her level of wellness fluctuates; that the picture is complicated by her substance abuse which, though denied presently by SD, seems to have re‑emerged a number of times in the last year.
It is to be noted that no alternative expert evidence as to capacity was presented to the Tribunal by SD and that the views expressed by Dr I and Dr W appear to coincide with the opinions of others doctors previously involved in her care over a long period.

Findings

Having considered all of the evidence in this matter, the Tribunal makes the following findings.
The Tribunal accepts the professional evidence, written and oral, concerning SD's current level of incapacity, particularly that of SD's current treating doctors. That evidence is consistent with the Tribunal's own conclusions having observed SD's demeanour in the hearing and having listened to her remarks, and with the views expressed by MM who is SD's main support and with whom she lives. The Tribunal accepts that she continues to suffer the effects of her illness and that her decision‑making and judgment remains impaired.
In the view of the Tribunal, SD continues to be incapable of making reasonable decisions concerning all aspects of her financial and legal affairs.
The Tribunal is satisfied on the balance of probabilities that the requirements of the GA Act have been satisfied and that SD is a person for whom an administration order could be made.

Need

The Tribunal is required to take into account the provisions of s 4(2)(c) of the GA 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) of the GA Act, the Tribunal may only make an order if it is satisfied that there is a need.

Evidence

The Public Trustee's report indicates that SD's main resource is her disability support pension. Tribunal of $100 per week and a personal allowance of $110 per week are paid from this to MM for SD. The remaining funds (balance E$1800) plus a separate court trust (balance E$4700) from a damages claim are drawn on for other items from time to time.
MM gave evidence as to the way things work at home and the use made of SD's allowance and how this is done in practice.

Findings

Having considered all of the evidence in this matter, the Tribunal makes the following findings in relation to need.
The Tribunal is satisfied that SD has need of an administrator to manage all aspects of her affairs at the present time. Even with an administration order in place, SD needs and receives significant support from her mother in general and in relation to the management of her allowance in particular. Without that support, it is the view of the Tribunal that SD would not be able to properly manage even the amount of her allowance.

Wishes of the proposed represented person

Section 4(2)(f) of the GA 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 ..."
Notwithstanding the views expressed by SD that she would like to have control of her own affairs, the Tribunal takes the view that an order for administration ought be made in her best interests and, as will be seen, that the Public Trustee continue as her administrator.

Suitability of nominee

Before the Tribunal can appoint an administrator, it must be satisfied that the appointee is a fit and proper person and that it is in the best interests of SD for that person to be appointed.
The Public Trustee has been SD's administrator for a number of years. There is no other candidate for the position.

Findings

The Tribunal is satisfied that The Public Trustee has acted appropriately in the management of SD's affairs. Although there appear to have been some difficulties in the relationship between SD and MM and the Public Trustee in the past, in all the circumstances, the Tribunal takes the view that SD's interest would be best served by the reappointment of the Public Trustee.

Plenary or limited order

Section 4(2)(d) of the GA 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 GA 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 the plenary order should continue.

Conclusion

In relation to all applications, the Tribunal is required by s 4(2)(a) of the GA Act to consider the best interests of the proposed represented person.
In all the circumstances, despite SD's stated position, the Tribunal considers that the making of the order set out hereunder is in SD's best interests.

Orders

The Tribunal, having considered all the evidence both written and given at this hearing, orders:
1.The administration order appointing the Public Trustee as administrator is confirmed and is to be reviewed on 4 September 2012.

I certify that this and the preceding [43] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS H LESLIE, SENIOR SESSIONAL MEMBER