S and SC
[2015] WASAT 138
•8 DECEMBER 2015
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: S and SC [2015] WASAT 138
MEMBER: MS H LESLIE (MEMBER)
HEARD: 20 AUGUST 2015
DELIVERED : 8 DECEMBER 2015
FILE NO/S: GAA 2061 of 2015
GAA 3549 of 2015
BETWEEN: S
Applicant
AND
SC
Represented Person
Catchwords:
Guardianship Administration Mental disability Alcoholism Substance addiction Cognitive impairment
Legislation:
Guardian and Administration Act 1990 (WA), s 3(1), s 4, s 4(2)(b), s 43(1), s 64(1), s 64(1)(a), s 65, Div 3 Pt 5
Result:
Public Trustee appointed Plenary Administrator.
The Public Advocate appointed Limited Guardian
Summary of Tribunal's decision:
The Tribunal ordered that the Public Trustee and the Public Advocate make decisions for a man with a serious alcohol addiction and some identified cognitive problems. Decisions were required to manage and utilise his pension and a lump sum of money that he was due, in his best interests and to sort out debt issues. The man was in temporary supportive accommodation but was without family or other supports. Determinations were also required in relation to his future accommodation and support, and medical oversight. The man was opposed to orders and had no desire to change his circumstances or his drinking behaviours.
The Tribunal determined that an alcoholism condition involving an addiction that involved an irresistible compulsion to drink to the point of intoxication every day constituted a 'mental disability' that could ground an administration order. The Tribunal found that the man met the criteria for both the making of administration and guardianship orders.
Category: B
Representation:
Counsel:
Applicant: N/A
Represented Person : N/A
Solicitors:
Applicant: N/A
Represented Person : N/A
Case(s) referred to in decision(s):
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
The applicant, S, is a caseworker at St Bartholomew's House (St Barts), an organisation that provides a variety of supports including accommodation to persons in need in the community. In mid-May 2015, at the time of the first application, the proposed represented person, SC, had been resident with St Barts for about eight months and S was his caseworker. A substantial amount of money (approximately $70,000) was discovered to be coming soon to SC from a firm of lawyers. Because of a level of concern about SC's capacity and memory problems, and his perceived fear, stress and requests for assistance, after consultation with the team at St Barts, S made an application for administration to protect that money (lump sum).
The Tribunal, on being satisfied that:
a)SC may be a person for whom an administration order could be made; and
b)it was necessary to make immediate provision for the protection of SC's estate,
made an ex parte order under s 65 of the Guardianship and Administration Act 1990 WA (GA Act) that the Public Trustee exercise the functions of a plenary administrator to protect and secure SC's bank account and the lump sum, along with other directions for a further hearing of the matter.
Given issues that had arisen as a consequence of the actions of the Public Trustee, the Tribunal, by further order made 30 June 2015, amended the s 65 order so that it operate only as a limited administration order for the securing and managing of the lump sum, to ensure payment out of SC's pension of his rent at St Barts so that his accommodation was secure, and otherwise authorising arrangements with Centrelink for the payment of the balance of SC's pension funds to him in weekly increments for his use. Directions were also made referring the matter to the Office of the Public Advocate (OPA) for consideration regarding administration and the need for a guardianship order.
S subsequently made an application for a guardianship order.
The hearings
The matters came on for hearing on 30 June 2015 and then subsequently on 20 August 2015. The first hearing was attended by SC, S and JH, who is the coordinator of the Crisis & Transition Program at St Barts. It was to have been attended by Dr W, SC's doctor, but he was taken ill on the morning of the first hearing. The second hearing was required in order to allow him to give evidence in the matter and to allow for investigation by OPA prior to the matter being determined. The second hearing was attended by SC, S and DD from OPA. Dr W gave evidence by telephone.
The decision was reserved at the conclusion of the hearing.
Background
SC was born in 1970. He is thus 45 years old. From his evidence it appears that he is from eastern Australia where his parents and siblings remain. He has no wife or children. His evidence is that he first came to Western Australia in about 1988 when he was 'in the forces'. He served in the Navy until 1996. He says that he moved back and forth to and from Western Australia truck driving for '15 years' and that he has had 'different jobs' around his truck driving. Examples given are lawn mowing and tree lopping. He says his last paid employment was as a tree lopper; that he lost that job; that he was unable to get other work and 'things went wrong' and that it is about five to six years since he has worked (it is noted that he advised DD from OPA that it was six to seven years since he has worked). Regarding alcohol use, he says he has 'always drunk'; that he has been 'a heavy drinker' and that he drinks every day. He said that he enjoys drinking, and regards himself as having been an alcoholic 'all of [my] life'. He has no plans to address his alcoholism or to plan for the future. His only plan relates to living in a campervan (as described later in these reasons) on his terms.
It appears from documents provided to the Tribunal that at some point earlier in his life (around 1995 according to SC), SC had purchased a residential strata townhouse and had obtained a bank mortgage. Once out of work, SC was unable to pay his bills, including his mortgage, and was ultimately evicted. It appears that in about 2013 after SC's eviction, the townhouse was the subject of a mortgagee sale. The settlement statement is dated 25 June 2013. It shows a mortgage repayment figure due to the bank of $158,977.73, with the balance of $73,967.18 (after payment of unpaid strata levies, unpaid water rates and unpaid shire rates, plus other charges and settlement costs and adjustments) to be held by the bank's lawyers on behalf of SC pending further instructions. It appears that for a considerable time SC could not be located – indeed, that the whole repossession and mortgagee sale process had been conducted without SC's participation, indeed without his knowledge. He acknowledges that he essentially walked away from the property once evicted, assuming that the bank would take everything. He stated he had not made any payments 'for a fair while'.
It appears that, after his eviction, SC was essentially homeless and that he spent time living on streets, in hostels and shelter accommodation and at one point in an abandoned shed. Eventually SC was located at a hostel by the lawyers acting for the mortgagee. The $73,987.18 is the source of the lump sum that is now held for SC by the Public Trustee.
It is unclear how SC came to be living at St Barts, but it appears that he has been there some eight months, since late 2014. He has a Centrelink income (Newstart benefit) and the lump sum, but no other assets other than some modest personal items. He has debts of $23,000, mostly for ambulance callouts, according to the Public Trustee, but also including some fines, according to S and SC. He has no savings and spends all his income. His motor driver's license (MDL) has expired and may also be under suspension due to unpaid fines.
He states that he was unable to afford to register or park or garage his car and had no option but to sell it, which he did at substantially under its value, to a person at the shelter where he was living. It was a fiveyearold Echo model that SC says he had purchased new - according to him a 'nice little car' though with 'some work to be done on it' - and he sold it, he says, 'for a few hundred dollars' … 'because [he] had no choice'.
The law regarding guardianship – the criteria
The GA Act provides in s 4(2)(b) that a person is to be presumed capable of managing his or her own affairs and making reasonable judgments in respect of matters relating to his or her estate until the contrary is proved to the satisfaction of the Tribunal
The GA Act provides in s 43(1) that, to make a guardianship order, the Tribunal must be satisfied that the person:
(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
(c)is in need of a guardian.
The law regarding administration – the criteria
As with guardianship, the GA Act provides in s 4(2)(b) that a person is to be presumed capable of managing his or her own affairs and making reasonable judgements in respect of matters relating to his or her estate until the contrary is proved to the satisfaction of the Tribunal.
Further, the GA Act provides in s 64(1) that, to make an administration order, the Tribunal must be satisfied that the person:
(a)is unable, by reason of a mental disability, to make reasonable judgements in respect of matters relating to all or any part of his estate; and
(b)is in need of an administrator of his estate.
The law regarding administration – mental disability
A 'mental disability' is defined in s 3(1) of the GA Act as follows:
mental disability includes an intellectual disability, a psychiatric condition, an acquired brain injury and dementia[.]
It is to be noted that this is an inclusive definition rather than an exhaustive definition. It is therefore instructive to look further at the meaning of the words 'mental disability' in considering what else might be included in the definition. In accordance with the principles of statutory interpretation, the ordinary meaning of the words is relevant.
The Australian Oxford Dictionary (2nd ed, 2004) (Moore ed.) (The AOD) defines 'mental' as 'of or in the mind'. Similar definitions are contained in The Macquarie Dictionary (6th ed, 2013) (The MD) and Taber's Cyclopaedic Medical Dictionary (1989) (Taber's).
The AOD defines 'disability' as 'a lack of some asset, quality or attribute that prevents someone's doing something', and defines 'disable' as 'to render unable to function; or to deprive of ability'.
The MD defines 'disability' as 'a lack of competent power, strength or physical or mental ability' or as 'a particular physical or mental weakness or incapacity'.
Taber's defines 'disability' as meaning 'any restriction or lack of ability to perform an activity in the manner and within the range considered normal for a human being'.
This is to be compared with Taber's definition of 'mental disorder' which is 'an imprecise and general term that may be described as a clinically significant behaviour or psychological syndrome or pattern typically associated with a distressing symptom or impairment of function'.
Black's Law Dictionary (10th ed, 2009) (Garner ed.) defines 'disability' as 'an inability to perform some function' and, secondly, as 'an objectively measurable condition of impairment physical or mental that prevents a person from engaging'. Butterworth's Australian Legal Dictionary (1997) defines 'disability' as 'the total or partial loss of a person's mental or bodily functions' and as including 'a disorder that results in a person learning differently to a person without the disorder and a disorder that affects a person's thought processes, perceptions of reality, emotions or judgments or that results in disturbed behaviour'.
The capacity issue
In this case, there is little dispute that SC is an alcoholic. He describes himself as such, as do the St Barts workers and his doctor. The evidence, which will be further expanded upon later in these reasons, is that he also suffers from cognitive problems, particularly memory problems. The significance of these is variously described. SC minimises these.
The American Psychiatric Association Diagnostic and Statistical Manual of Mental Disorders (ed.4, 2000) (DSM IV) and its new edition, the DSM5 (2013) (DSM-5), is the respected manual developed over many years into a diagnostic classification system for psychiatrists, other physicians and other mental health practitioners that describes the essential features of the full range of mental disorders and provides guidelines for diagnoses. Although its essential purpose is to inform treatment and management decisions, it is a useful reference regarding the central issues in this case.
The preface pages to DSM5 contain a definition of 'mental disorder' as follows:
A mental disorder is a syndrome characterized by clinically significant disturbance in an individual's cognition, emotion regulation, or behaviour that reflects a dysfunction in the psychological, biological, or developmental processes underlying mental functioning. Mental disorders are usually associated with significant distress or disability in social, occupational, or other important activities[.]
As is appropriately pointed out in the 'Cautionary Statement' included in the preface pages of DSM5, it is clear that the clinical diagnosis of a DSM5 mental disorder does not imply that an individual with such a condition meets legal criteria for a specified legal standard, for example, competence or disability. For the latter, additional information is usually required about the individual's functional impairments and how these impairments affect the particular abilities in question. Even when diminished control over one's behaviour is a feature of the disorder, having the diagnosis, in itself, does not demonstrate that a particular individual is (or was) unable to control his or her behaviour at a particular time.
In the part of the DSM5 that refers to substance related and addictive disorders, under 'AlcoholRelated Disorders', there are two that may be said to be relevant for an alcoholic who compulsively drinks to the point of complete intoxication every day – 'Alcohol Use Disorder' (in DSM IV referred to as Alcohol Dependence) and 'Alcohol Intoxication' (in DSM IV referred to as Alcohol Abuse).
'Alcohol Use Disorder'
The diagnostic features of Alcohol Use Disorder are defined in DSM5 by reference to a cluster of behavioural and physical symptoms which can include withdrawal, tolerance and craving. Craving is said to be indicated by a strong desire to drink that makes it difficult to think of anything else. Alcohol withdrawal is said to be characterised by withdrawal symptoms that develop '412 hours after the reduction of intake following prolonged, heavy alcohol ingestion'. Because withdrawal can be unpleasant and intense, individuals may continue to consume alcohol despite adverse consequences, often to avoid or relieve withdrawal symptoms. Once a pattern of repetitive and intense use develops, individuals with alcohol use disorder may devote substantial periods of time to obtaining and consuming alcohol.
The key elements of alcohol use disorder are said in DSM5 to be the use of heavy doses of alcohol with resulting repeated and significant distress or impaired functioning. This is to be distinguished from non-pathological use of alcohol. Drinking, even daily, in low doses, and occasional intoxication do not, by themselves, make this diagnosis.
The diagnostic criteria for Alcohol Use Disorder are described in DSM5 as:
A.A problematic pattern of alcohol use leading to clinically significant impairment or distress, as manifested by at least two of the following, occurring within a 12month period:
1.Alcohol is often taken in larger amounts or over a longer period than was intended.
2.There is a persistent desire or unsuccessful efforts to cut down or control alcohol use.
3.A great deal of time is spent in activities necessary to obtain alcohol, use alcohol, or recover from its effects.
4.Craving, or a strong desire or urge to use alcohol.
5.Recurrent alcohol use resulting in a failure to fulfil major role obligations at work, school, or home.
6.Continued alcohol use despite having persistent or recurrent social or interpersonal problems caused or exacerbated by the effects of alcohol.
7.Important social, occupational, or recreational activities are given up or reduced because of alcohol use.
8.Recurrent alcohol use in situations in which it is physically hazardous.
9.Alcohol use is continued despite knowledge of having a persistent or recurrent physical or psychological problem that is likely to have been caused or exacerbated by alcohol.
10.Tolerance, as defined …
11.Withdrawal[.]
The severity of the disorder may then be measured as mild, moderate or severe depending on the number of these symptoms present, with 23 being mild, 45 being moderate, and 6 or more being severe.
'Alcohol Intoxication'
The essential feature of Alcohol Intoxication is said in DSM5 to be the presence of significant problematic behaviour or psychological changes that develop during or shortly after alcohol ingestion. These changes are accompanied by evidence of impaired functioning and judgment.
The diagnostic criteria of Alcohol Intoxication are described in DSM5 as:
A.Recent ingestion of alcohol.
B.Clinically significant problematic behaviour or psychological changes (e.g., inappropriate sexual or aggressive behaviour, mood lability, impaired judgment) that developed during, or shortly after, alcohol ingestion.
C.One (or more) of the following signs or symptoms developing during, or shortly after, alcohol use:
1.Slurred speech.
2.Incoordination.
3.Unsteady gait.
4.Nystagmus.
5.Impairment in attention or memory.
6.Stupor or coma.
…
The first issue is whether the cognitive problems that have been identified constitute a mental disability and whether, either on their own or in combination with the addiction/compulsion that is said to be part of SC's alcoholism, they:
1)render him unable to make reasonable decisions relating to his estate or part of it; and/or
2)make him a person for whom a guardianship order could or should be made.
The second issue is whether the addiction/compulsion that is said to be part of his alcoholism is itself a mental disability and whether it, either on its own or in combination with the cognitive and memory problems identified:
1)renders SC unable to make reasonable decisions relating to his estate or part of it; and/or
2)makes him a person for whom a guardianship order could or should be made.
The nature of addiction/alcoholism
Dorland's Medical Dictionary (30th ed, 2003) (Dorlands) defines 'addiction' as:
1. the state of being given up to some habit or compulsion. 2. strong physiological and psychological dependence on a drug or other psychoactive substance[.]
As part of that definition, the authors reference 'alcoholism, particularly that in which physiological dependence is present'.
Dorlands defines 'alcoholism' as:
[A] disorder characterised by a pathological pattern of alcohol use that causes a serious impairment in social or occupational functioning. In DSM IV it is covered by alcohol abuse and alcohol dependence.
Butterworths Medico-Legal Dictionary defines 'alcoholism' as:
… excessive drinking by persons who have become so psychologically dependent on alcohol that it interferes with their health, social functioning and interpersonal relationships. There may be an element of addiction in some cases which is exemplified by withdrawal symptoms and signs, some of which may be serious and distressing (see 'Delirium tremens').
The authors go on to note that 'there are wide variations available within [the] definition'.
The documentary evidence
The applicant's application:
In her application, S says that she has known SC for about six months and is his caseworker. She says:
Due to [SC]'s excessive alcohol use, I have concerns about his ability to manage his finances.
[SC] has stated on several occasions that he is unable to manage his finances …
[SC] is a chronic alcohol user; he drinks daily and as a result suffers from cognitive impairment.
I believe that [SC] is a [vulnerable] individual who is at risk within the community.
[SC] is dependant [sic] on alcohol and suffers from pysical [sic] withdrawal. [She requested that SC] be [allocated] a morning [hearing] as he would struggle to abstain from drinking throughout the day.
[SC] is about to receive a lump sum payment of about $73000[;] as a result he has increased his drinking and has stated this is due to the stress of not being able to manage his finances. I have observed [SC]'s alcohol consumption increasing and when under the influence is presenting more and more incoherent. [SC] is very close to receiving photo ID which will allow him to access this money.
The doctor's guides - Dr W dated 20.04.15 (Guide 1) and 17.08.15 (Guide 2)
Dr W reports that he has known SC for about one year. (The guides are completed roughly four months apart.)
In relation to whether SC has any impairment to his cognitive ability or mental function, Dr W reports that in his opinion SC does have such an impairment.
In Guide 1, Dr W describes the impairment as 'cognitive impairment secondary to chronic alcohol abuse', first recognised by him on 15 September 2014 and which he described in the guide as 'static'. In Guide 2, he describes the impairment as 'mild memory impairment due to alcohol abuse' which he described as 'fluctuating'.
In Guide 1 under 'prognosis', Dr W states 'irreversible cognitive impairment from chronic high level alcohol abuse'. In Guide 2 under 'prognosis', he states 'memory impairment fluctuates depending on level of alcohol abuse. Has improved significantly now that he is taking regular Thiamine'.
In answering the questions about SC's 'capacity to make reasonable decisions now' in relation to personal health care, living situation and financial affairs, in both guides, Dr W says that SC can make decisions in relation to his personal health care. In relation to SC's his decisions about his living situation, in Guide 1, Dr W marks 'not sure' and in Guide 2, he marks 'capable'. In relation to decisions about SC's financial affairs, Dr W marks 'incapable' in Guide 1 and 'not sure' in Guide 2. As to whether SC has the capacity to execute an enduring power of attorney, Dr W marks 'not sure' in Guide 1 and 'capable' in Guide 2. In Guide 2, under 'any other observations or comments about capacity', Dr W notes 'significant memory impairment'. As to SC's ability to contribute to a hearing, in Guide 1, Dr W marks 'limited contribution' and in Guide 2, 'significant contribution'.
In his evidence to the Tribunal referred to later in these reasons, Dr W sought to explain the variances between the two guides.
TN (nurse practitioner with the REACH program)
According to the applicant, TN works with SC out of St Barts. TN completed the Primary Carer Social Work Guide (Guide) that accompanied the application. In the Guide concerning SC, TN set out 'cognitive impairment secondary to chronic alcohol use' as the diagnosis. He stated with respect to SC:
Impaired judgment due to a strong drive to use alcohol.
[SC]'s main activity appears to be finding ways to get money and buy alcohol and drink until he is totally intoxicated.
Under questions about SC's mental state, TN set out:
Alert and orientated when sober. [SC] finds great difficulty coping with life and making key decisions due to his drive to drink alcohol.
In his assessment of SC's ability to manage, TN set out:
[SC] has shown that he is not able to budget, save or appropriately use any money. He spends all financial resources on buying alcohol.
In his professional recommendation, TN states:
[SC] would be safer if his finances were controlled by an external [authority]. The Public Trustee would be ideal for this.
In relation to questions about SC's social supports, TN states:
Although [SC] has family, he appears to have exhausted them. I have been told that his family are not able to control [SC's] behaviour.
The Public Trustee
In the initial report to the Tribunal from the Public Trustee, it is reported by the trust manager that SC is in receipt of a Newstart pension but that he has a work exception (in other words, that he is not required to meet the designated benchmarks in efforts to gain employment in order to continue to qualify for Newstart) and that this exemption is due to his 'cognitive impairment and stress'.
The oral evidence
The first hearing
S, the applicant, gave evidence that SC forgets appointments and that he has shortterm memory problems although his longterm memory seems to be alright. She referred to his 'forgetfulness' and how the St Barts team thought it appropriate to refer him to Dr W to investigate the memory issues, particularly given SC's articulated concerns and fears about money management and his requests for help. She confirmed that a full suite of physical tests were done, including a liver function test and a CT scan, at the beginning of 2015. Only a Vitamin B deficiency was identified.
JH, the program coordinator, gave evidence that she met with Dr D (Dr W's practice colleague). He had reviewed the medical records. He reported that no concerns were picked up on the CT scan or arising from the tests. All had come back clear 'much to everyone's surprise'. Early onset or alcoholic dementia was not established. JH stated that there had been no further deterioration in the memory issues since SC had started taking supplements but that there had been no improvement with the memory issues either.
In relation to his alcoholism and drinking behaviours, JH gave evidence that SC drinks every day until intoxicated; that fixed appointments for SC with workers are arranged to be at the same time (9 am) on the same day each week, otherwise he forgets; that they are always at 9 am as he will be intoxicated by the time of a later appointment; and that anything arranged with him by the time he is intoxicated he will forget. JH stated that for the entire time (eight to nine months) he has been with St Barts, on non-appointment days, by 9 am when staff get to work he will either already be drinking and already be intoxicated or will be on his way out to drink; that at the end of appointments, he will talk about going out to drink; that in the early times when the appointment pattern had not been established and he had appointments later in the morning, he would be shaking (from alcohol withdrawal) by the end of those (later) appointments; that his shaking would be 'quite predominant' if he had not been able to drink for a couple of hours because of the appointment arrangements; and that he would talk about going straight off to have a drink. JH also stated that SC has had no periods of abstinence in all the time he has been at St Barts.
[JH] stated that since the lump sum issue has been known about, SC's drinking has increased. Her view is that fear is the cause of this and bases this on comments made by him. She claims he will acknowledge his emotions when he is intoxicated and says that he feels scared because he does not trust himself with the money. He is quite open about this when he is intoxicated, she stated.
JH gave evidence about SC's financial decisionmaking. She said that when he first came into the program, automatic payment of rent through Centrepay was not a condition of being in the program (as it is now), and SC was expected to pay his rent himself. In the beginning, he missed his payments a few times and then St Bart's persuaded him to voluntarily go with Centrepay and he agreed. This arrangement means that Centrelink deducts SC's rent from his pension and pays it electronically to St Bart's, depositing only the remaining balance of the pension into the bank account for SC to use. JH indicated that there has been no issue since then regarding rent payment.
JH gave evidence that the whole of the pension money available to SC in his bank account is now spent by him on alcohol. Prior to the involvement of the Public Trustee, it was almost all spent this way, but not quite. Back then, the balance of his money after payment of his rent would go into his account from Centrelink late on a Friday so it would be there on a Saturday morning. With support, he would do a little shopping a few basic items such as washing powder and perhaps some food items, but most of the money was 'divvied up' by SC for drinking though the week, and that when SC ate, he mostly ate from free food options in parks, soup kitchens, street vans, et cetera. She stated that since the Public Trustee first took over under the s 65 order and set up a daily allowance, the pattern has changed - all of the money is now going on alcohol and no shopping is being done by SC for basic necessaries or food.
JH gave evidence that SC has been returned in an intoxicated state by the police to St Barts quite a few times and sometimes by paramedics when (apparently) a member of the public telephones the ambulance, worried about him asleep/passed out in bushes or in carparks. She said that sometimes they ring St Barts and the staff go and get him. She expressed the view that SC is very vulnerable when he drinks.
In relation to SC's future, JH gave evidence that St Barts accommodation is not available to SC longterm and that one of the difficulties is that the lump sum will prevent him from qualifying for many housing and other supports available for homeless people. She advised that the team had being trying to work with SC on accommodation options. She stated that SC wanted to invest the lump sum in a secondhand 'Winnebago' style mobile home so that he could travel around but would have accommodation. The team were presently trying to counsel SC to look at using the money for something like a static caravan or 'park home', given their concerns about his alcoholism and the potential risks of him driving. The status of his MDL is unclear.
SC gave evidence at the first hearing, which occurred between 10 am and 11 am. He appeared to be sober, was quiet but well spoken, polite and coherent, and behaved entirely appropriately and respectfully during the hearing despite his disagreement with much of what was said.
SC stated that he did not want his finances managed. He disagreed with the view that he cannot manage his finances. He agreed he needs advice sometimes but does not need his money controlled and 'doled out'. He spoke of his plan to use the lump sum to buy a mobile home (the van) and live in 'one of the parks'. He had talked to DD about perhaps travelling to see friends in Whyalla in South Australia or perhaps to another friend's farm in Geraldton. When asked if he felt he could manage all the practical arrangements regarding selection, purchase, arrangements for the van's placement and connection to services et cetera, his response was 'I don't see a problem with [managing this for himself]'.
SC disagreed that any cognitive impairment or his level of regular intoxication would prevent this.
SC disputed the existence of an uncontrollable 'drive to drink', responding 'if I have responsibilities, I won't drink'; 'if I don't want to, I won't drink'; 'I am not impelled [sic] to drink'; 'I don't get the shakes if I am not drinking'. He admitted to considering himself an alcoholic and said he had been all his life - 'I like drinking but if I know I can't have a drink, I won't'. In relation to his ability to abstain from drinking, he claimed that he had 'done it previously' and he denied that there had been no periods of abstinence in the time that he had been at St Barts, and claimed to have gone '3 or 4 days without a drink' in the period just before the Public Trustee took over initially.
SC claimed to see Dr W very rarely. He was unclear when he last saw him or how he comes to see him or where, although he was sure he had not been to a surgery. He claimed that Dr W had told him his memory issues are because of Vitamin B deficiency. He confirmed that he is now taking tablets for this, one per day.
In relation to the brain scan, SC claimed to have had a head injury from an accident in 1990 that had caused some brain damage 'in a part of my brain that I don't use'. He did not disagree that he had been scared about the lump sum coming 'It's a lot of money. I am scared I'll stuff it up' - but he claimed to have only asked for the Public Trustee to help when he was intoxicated. He said that he believed that he did not need it now.
The second hearing
In the second hearing, Dr W gave evidence by telephone. He stated that he had seen SC eight times since September 2014, each time by appointment at St Barts. At about half of these SC was accompanied by a carer. In terms of cognitive functioning, Dr W emphasised his concerns starting from January 2015 in relation to SC's shortterm memory and his ability to form new memories. He described SC as 'really struggling' in this regard. He referred to SC missing appointments because he could not remember them. He referred to an occasion when, having undertaken a Mini Mental State Examination (MMSE) capacity assessment test administered by Dr W, although scoring well on the test (29/30), SC could not remember having taken the test of capacity just five minutes after taking it. Dr W described being 'quite concerned' by this. Dr W confirmed further tests were then undertaken as described in the evidence of JH. Dr W indicated that he had commenced SC on a Thiamine supplement and thereafter, on the one time that he has seen SC since the commencement of the Thiamine supplement, he had noticed a little improvement in SC, not in that his cognition had improved - that is, no clinical change - but rather that SC had begun to 'adapt to the memory problems' and to adopt some strategies to help him try to manage the deficits, for example, taking notes of things. Dr W described this as his 'impression' from SC's presentation during that one further appointment.
In relation to the alcohol issues, Dr W indicated that it was difficult for him to comment directly about impaired judgment due to the effects of alcohol or alcoholic drive; that he usually saw SC at his best in 9 am appointments; and that he had never seen him intoxicated or in acute withdrawal. He did however refer to the experience of the member of the team involved in SC's care and to TN in particular. He indicated that he had nothing upon which to refute the evidence they gave; indeed, that he would take on board their observations and input in his clinical practice and assessments and management of patients; that it was 'useful and trustworthy'; that the Tribunal could 'absolutely' rely on what they said, given their experience with clients such as SC. Dr W also confirmed that SC had admitted to him that he drinks a lot and that he drinks every day, and that he, Dr W, had received collaborative information from the St Barts' team members that SC's drinking was 'a real, real problem' for him.
In relation to SC's diagnosis and in particular his alcoholism, Dr W confirmed that SC is 'an alcoholic' and that he meets the criteria for 'alcohol dependence' under DSM IV (referred to as 'Alcohol Use Disorder' in the later edition DSH5).
Dr W gave evidence that he knew of SC's previous significant head injury and that SC had previously suffered post traumatic seizures that were poorly controlled but that these were not recent and that he was receiving no treatment for seizures at the moment. He confirmed that he had no detail of any symptoms attributable to the head injury and that nothing showed on the scans he had seen, noting also that scans would only have shown a gross structural brain injury. He had seen no psychiatric reports or assessments of other problems from the head injury.
Dr W confirmed that his concerns were twofold the issues to do with SC's alcoholism and the incremental cognitive changes principally to do with memory. In relation to the differences in his two reports, Dr W stated that what he was trying to convey was the difference that the Thiamine supplements were making; that SC seemed 'a fair bit better'; and that he seemed to be 'sharper' and 'taking more on board' after its introduction. He conceded that Thiamine can help to diminish memory problems but that it was not a clinical difference to do with improved cognition that he was trying to illustrate in the way he worded the reports, but rather, SC's improved presentation. His view was that it was likely the Thiamine but he volunteered that 'there were lots of confounding factors'; that for example, it might have been something as simple as that SC had had less to drink the night before. In clinical terms, his view was that SC was largely similar at both appointments.
In relation to the cognitive changes, Dr W confirmed his description of them as static and irreversible and confirmed his view that SC would never get back to a 'normal' memory, even if he stops drinking now, and even taking the Thiamine ongoing.
When asked to comment on the significance of SC's conduct and apparent lack of appreciation of the circumstances surrounding his house repossession and the financial consequences of this, Dr W stated that it was not possible for him to comment about those past events; that it may have been to do with SC's 'perpetual intoxication' and related problems, or it may have been that the house and financial issues were 'lost to him and far from his mind' entirely due to SC's crisis situation at the time. He 'could not confidently comment on the significance of [SC's response to those events]'.
Dr W confirmed the description of SC as an alcoholic and expressed the view that SC should not be driving given his alcoholism. He stated that he would not clear SC to drive if medical clearance was required to reinstate his MDL. He described SC's articulated plan to purchase a mobile home as 'exceedingly unrealistic', in fact, that it 'is ridiculous' given his health circumstances. In terms of the risks to SC's health and safety, Dr W confirmed that SC is at risk generally when he is intoxicated and because he drinks to pass out; that he is often not in a safe place; and that he becomes unconscious and vulnerable. Dr W confirmed in answer to a question from DD that, subject to the memory issues, in the mornings when sober, SC's judgment is much more reasonable and that from his observations of SC, at that time and in that state, he could make decisions for the future.
Dr W confirmed that he had supported the application initially at the time when SC was asking for assistance 'because [SC] was worried about being taken advantage of' in his situation but that SC had now changed his mind. Dr W had attended to give evidence as requested by the Tribunal but confirmed that he was 'less comfortable' to be seen to be supporting the making of orders against the wishes of SC. He was, quite reasonably, concerned about the effect of the proceedings on his therapeutic relationship with SC.
S gave evidence at the second hearing that little had changed in SC's presentation since the previous hearing and that the issues remained as previously articulated in that hearing and in the papers; and also that his drinking behaviours were essentially unchanged. She confirmed that the ongoing Tribunal proceedings has caused some stress and anxiety for SC.
At the second hearing, SC confirmed his opposition to the orders. He confirmed that he sometimes needed advice and support but did not need someone to make decisions for him. He appeared to acknowledge Dr W's expertise but continued to express his disagreement with the conclusions about cognitive impairment and the drive to drink. He admitted that he is 'a heavy drinker' and that he drinks every day. He said that he enjoyed drinking, that he does not break the law, and that he is happy as he is. He confirmed that if he has to do something, he is able to not drink.
The Public Advocate's position
DD prepared a report for the Tribunal and also made submissions orally at the second hearing.
His view on the evidence was that it is unclear whether SC meets the criteria for the making of orders, and further, that it has not been established whether there is a need for orders.
His submission was that the DSM IV substance dependence disorder is a 'mental disability' that in appropriate circumstances can ground an order for administration under the GA Act. He referred to existing precedent examples of administration orders being made for persons with alcoholism.
Although not challenging that irreversible cognitive impairment secondary to chronic alcohol abuse is a mental disability that can ground an order, DD's view was that the degree of cognitive impairment identified by Dr W was insufficient on its own to justify the making of an order; that is, that it did not, on its own, displace the presumption of capacity. He referred to the good MMSE result, to Dr W's opinion that in the mornings when sober SC could make decisions, and to the strategies SC talked about using to help with his deficits.
In relation to guardianship, DD referred to the fact that SC is reported to be intoxicated most of the time and to be vulnerable and at risk because of this, and that he could benefit from a guardian working with him to look at the options available to him for the future and to negotiate with any appointed administrator if the Tribunal did make an administration order.
DD acknowledged that, though it might be challenging for a guardian to achieve positive outcomes for SC, particularly given his opposition to the order and his fixed views about his lifestyle, but that this was not a reason not to try.
Findings of fact capacity
I find that SC is an alcoholic who compulsively drinks to a point of complete intoxication every day. I find that he suffers from a recognised mental disorder referred to in DSM5 as 'Alcohol Use Disorder' (and in DSM IV, to which Dr W referred, as 'Alcohol Dependence'). I find that he is unable to resist or control the compulsion (described as 'the drive to drink') that comes with his addiction to alcohol and that this compulsion renders his judgment impaired to a significant degree. I find that with support and assistance he may be able to resist the compulsion for a short period of perhaps several hours first thing in the morning - for example, for an appointment - but that anything longer results in him suffering serious withdrawal symptoms that he then manages by drinking alcohol. I find that he always returns to drinking after any such short period of abstinence by reason of the ongoing compulsion.
Clearly, once SC is significantly intoxicated, which I find he is for much of most days, his judgment is further impaired by his intoxication.
Further, I find that SC has significant memory deficits that are irreversible as a result of chronic alcohol abuse over time and that these memory deficits render his judgment impaired even during the limited times when he is sober.
I accept the evidence of Dr W as to diagnosis. To the extent that the evidence differs from that of SC, I prefer the evidence of Dr W which I find more credible. I accept that he has SC's interests at heart and would have no reason to be other than frank and truthful with the Tribunal and to express his professional opinion as honestly as he can.
On the basis of the concessions of SC, I find that SC enjoys drinking, is 'a heavy drinker' and that he drinks every day; that he regards himself as having been an alcoholic much of his adult life; and that he has no plans to address his alcoholism.
On the basis of the evidence of TN, I find that:
1)SC suffers from cognitive impairment secondary to chronic alcohol abuse;
2)SC's judgment is impaired due to his strong drive to use alcohol;
3)SC's main activity is finding ways to get money and buy alcohol and drink until he is totally intoxicated;
4)due to his drive to drink alcohol, SC finds great difficulty with life and making key decisions;
5)SC is not able to budget, save or appropriately use money; and
6)he spends all the financial resources available to him directly on buying alcohol. I accept that SC has at a time when he was sober been able to agree to the payment of his rent by Centrepay but I find that he was required to agree to this in order to keep his accommodation place at St Barts and that he was assisted to put the arrangement in place. I accept that he has not made the decision to attempt to cancel this arrangement. But I also find that when the rent payment was within his personal control, he sometimes did not pay his rent, thereby putting his accommodation at risk.
To the extent that the evidence of TN differs from that of SC, I prefer the evidence of TN which I find more credible. I accept that he has SC's interests at heart and would have no reason to be other than frank and truthful with the Tribunal. I accept Dr W's comments about TN's professionalism and expertise with clients such as SC.
On the basis of the evidence of JH and S, I find that:
1)SC is a chronic alcohol user and that he drinks daily to excess, usually until completely intoxicated;
2)any appointments needed with SC are made at 9 am to give him the best chance of still being sober for them;
3)SC is dependent upon alcohol and suffers from physical withdrawal when not drinking, and that these symptoms are quite predominant if he is not able to drink for a couple of hours;
4)SC struggles to be able to abstain from drinking on any one day;
5)SC has had no days of abstinence in the eight to nine months he has been at St Barts;
6)as a result of his chronic alcohol use, SC suffers from discernible cognitive impairment, particularly memory impairment;
7)SC has admitted to St Barts' workers that he is unable to manage his money;
8)SC has requested help with money issues and feels scared because he does not trust himself to manage the lump sum;
9)SC is forgetful, especially with appointments, and
10)the whole of SC's accessible money is used by him on alcohol.
Conclusions
I am satisfied that SC is a person for whom a guardianship order could be made. His addiction and his drinking behaviours in combination with his memory problems cause him to be unable to look after his own health and safety without support and assistance. In my view, he is also unable to make reasonable judgments in relation to matters relating to his person. He is vulnerable and at risk physically in the community almost every day by reason of the circumstances into which his intoxicated and sometimes unconscious state gets him. His future accommodation options are unclear. He is unable to formulate and execute a sensible plan as to the appropriate use of the lump sum to meet his future accommodation needs. He has no plan beyond one (the van plan) that is clearly inappropriate in his circumstances. He has no insight into the issues that his alcoholism gives rise to regarding driving. He has no desire to address his drinking and has no insight into his vulnerability when intoxicated in the community or into the health issues that his level of alcohol use raises. It is true that so far, other than a vitamin deficiency, he has passed all physical health tests but it is clear that his chronic alcohol use is beginning to impact upon his cognition and his memory. There can be little question that eventually his physical health will begin to deteriorate if he continues to drink at the current rate.
Some might say that there are many in the community that are in exactly the same position that SC is in and that they do not have guardians. That may well be true, but that is not a reason for SC not to have a guardian appointed if he meets the statutory criteria and if there is a demonstrated need for a guardian to assist in the areas of future accommodation, support services and medical oversight.
I am satisfied that there is. SC has no family or close support services. He only qualifies for continued accommodation and assistance from St Barts for a few more months. The lump sum disqualifies him from many services available to people in need. It appears that he has only accessed medical services in recent years from Dr W with the assistance of the St Barts' people. I am satisfied that he is in need of a guardian and that the appointment of one will be in his best interests - at least to plan, set up supports and oversee his situation during the period of transition out of St Barts into the next accommodation situation that can be found for him. In my view, a limited order covering these areas should be made for 12 months to that end. It will be reviewed at that time to see whether it is achieving any improvement in SC's situation and is operating in SC's best interests.
I am satisfied that SC is a person for whom an administration order can be made. In my view, he is unable by reason of mental disability – namely, cognitive impairment, particularly memory impairment, secondary to chronic alcohol use - to consistently make reasonable judgments in relation to the management of his finances. His shortterm memory is very much compromised even when he is sober. He is unable to independently remember appointments. He was unable to remember the participation in a capacity test with Dr W within five minutes of having undertaken it. He had very unclear recollections of the circumstances of his various contacts with Dr W.
I am further satisfied that he is unable by reason of a mental disability – namely, alcohol dependence/alcohol use disorder - to make reasonable judgments in respect of matters relating to all or any part of his estate. In my view, the addiction to alcohol which comes with alcohol dependence/alcohol use disorder and which may give rise to the uncontrollable compulsion or 'drive to drink' may, in itself, be regarded as a mental disability upon which, in cases where the 'drive' and compulsion are strong enough, an administration order may be grounded.
I accept the evidence that SC has an addiction that he is unable to control and that this addiction leads him to crave alcohol and to direct most of his efforts and all of his money towards the obtaining and consuming of alcohol to a point where he is totally intoxicated. I accept that, by reason of this addiction, he is unable to budget his money to meet even his basic personal needs without external support and oversight, and that without that external oversight and support those basic personal needs would not be met.
Not all heavy drinkers are persons for whom orders could or should be made, even drinkers who spend a lot of their time intoxicated. Not all persons who live a lifestyle such as that that SC has lived, should, or need to, have their affairs managed. It is not for the Tribunal to impose its or anyone else's subjective standards on a person who comes before it. All persons are presumed to be competent to manage their own financial and personal decisions until the contrary is established (s 4 of the GA Act). There is obviously a grey area between the life choices and lifestyle of persons who are at the fringe edge of capacity and who appear to be making choices (where there is choice, and it has to be said that often there is no real choice) to live in a way that is, in the view of others who care about the wellbeing of those persons, not in their best interests financially and/or personally. It will be a question of fact in each case.
However, in cases where there is reliable and credible evidence that a person does not have choice or personal agency by reason of a serious and uncontrollable addiction, that person cannot be said to have capacity to make decisions, even during brief times of sobriety, because of the control that their addiction has on every aspect of their lives. The function of the human mind that is involved in exercising a free choice is 'disabled' by the addiction. This is the essence of the 'mental disability' I find exists in this situation. I am satisfied that this is the case for SC and that he meets the criteria for an administration order, and that there is a need for an order to assist in meeting his daily needs and expenses from his pension and in managing the lump sum in his best interests.
The evidence is that SC is intoxicated much of the time. It is not the direct and immediate effects of the alcohol intoxication upon which I rely as creating a mental disability in this case (in the way envisaged in the DSM disorder known as 'Alcoholic Intoxication'/'Alcohol Abuse'), although it seems to me that it remains an open question, in an appropriate case, whether a person who is persistently intoxicated could, without more, be said to suffer from a mental disability.
I am further of the view that the combination of SC's three 'problems' - that is, the cognitive issues in combination with the addiction in combination with the daily intoxication - could be seen as rendering SC a person for whom an order could be made without any one of the three 'problems' individually being enough on its own. It seems to me that the emphasis in the definitions of 'disability' is on the notion that something is 'disabling' or 'incapacitating', rather than as necessarily attaching to a particular recognised condition. The corollary of this is that mental disability could be seen as some set of circumstances for a person that is 'mentally disabling', rather than that it fit within a particular diagnostic category. I am not persuaded that the use of the grammatical article 'a' immediately before the words 'mental disability' in s 64(1)(a) of the GA Act necessarily counters this view. The idea that by reason of a combination of memory problems, addiction issues and frequent intoxication, SC is unable to make reasonable decisions in relation to his estate seems to be logically acceptable to me and that could be seen as 'mental disability' without offending the principles of statutory interpretation.
The notion that mental disorders (such as in the DSM) all fall within the scope of 'mental disability', that is, that 'mental disability' is wider than 'mental disorder' appeals to me. It also fits with the inclusive approach to the definition contained in s 3(1) of the GA Act.
In my view, the capacity situation is unlikely to change and an order may well be needed ongoing. However, in view of the review that I feel should occur in relation to guardianship, in my opinion, it is appropriate for the administration order to be reviewed at the same time to see whether it is achieving any improvement in SC's situation and is operating in SC's best interests.
Orders
Accordingly I make the following orders:
In relation to matter GAA 2061 of 2015, which relates to administration, the Tribunal makes the following order:
The Tribunal declares that the represented person;
(a)is unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all of his estate; and
(b)is in need of an administrator of his estate.
and the Tribunal orders on 14 October 2015 that:
1.The Public Trustee of 553 Hay Street, Perth, Western Australia is appointed plenary administrator of the estate of the represented person with all the powers and duties conferred by the Act.
2.Order 3 of orders made 30 June 2015 is revoked.
3. This order is to be reviewed by 14 October 2016.
In relation to matter GAA 3549 of 2015, which relates to guardianship, the Tribunal makes the following order:
The Tribunal declares that the represented person;
(a)is incapable of looking after his own health and safety;
(b)is unable to make reasonable judgments in respect of matters relating to his person;
(c)is in need of oversight, care or control in the interests of his own health and safety; and
(d)is in need of a guardian,
and the Tribunal on 14 October 2015 orders that:
1.The Public Advocate of Level 2, International House, 26 St Georges Terrace, Perth, Western Australia be appointed limited guardian of the represented person with the following functions:
(a)To decide where the represented person is to live, whether permanently or temporarily;
(b)To decide with whom the represented person is to live;
(c)Subject to Division 3 of Part 5 of the Guardianship and Administration Act 1990 (WA), to make treatment decisions for the represented person;
(d)To determine the services to which the represented person should have access;
2.The Tribunal approves delegation by the Public Advocate of her functions as guardian of the represented person to an officer or employee employed in the Office of the Public Advocate.
3.This order is to be reviewed by 14 October 2016.
I certify that this and the preceding [102] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS H LESLIE, MEMBER