SAS

[2016] WASAT 97

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION:   SAS [2016] WASAT 97

MEMBER:   JUSTICE J C CURTHOYS (PRESIDENT)

MR D MACLEAN (MEMBER)
MS C WALLACE (MEMBER)

HEARD:   DETERMINED ON THE DOCUMENTS

DELIVERED          :   12 AUGUST 2016

FILE NO/S:   GAA 2333 of 2016

BETWEEN:   SAS

Represented Person

Catchwords:

Lacking in substance - Multiple applications dismissed

Legislation:

Guardianship and Administrtion Act 1990 (WA), s 17A, s 17A(1), s 86(1)
State Administrative Tribunal Act 2004(WA), s 47

Result:

Application dismissed

Summary of Tribunal's decision:

SAS was a passenger involved in a motor vehicle accident in 1973.  As a result of the accident, he suffered damage to the left side of his brain.  Following the accident, he had lived with and been cared for primarily by his father on the family orchard.  He completed school in year 10 and left to work on the family orchard.  An administration order was sought following the death of his father.

The evidence set out below establishes that the condition that led the Tribunal to make the administration order set out below is permanent and will not improve.  Despite numerous applications, SAS has not led any substantive evidence that his condition has improved.

Section 47 of the State Administrative Tribunal Act 2004 (WA) permits the Tribunal to dismiss an application when it is lacking in substance. In the absence of any evidence that his condition has changed, SAS's application is lacking in substance. Accordingly SAS's application is dismissed under s 47 of the State Administrative Tribunal Act 2004 (WA).

Category:    B

Representation:

Counsel:

Represented Person       :     N/A

Solicitors:

Represented Person       :     N/A

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

Nil

REASONS FOR DECISION OF THE TRIBUNAL:   

Introduction

1. SAS was a passenger involved in a motor vehicle accident in 1973.  As a result of the accident, he suffered damage to the left side of his brain.  Following the accident, he had lived with and been cared for primarily by his father on the family orchard.  He completed school in year 10 and left to work on the family orchard.  An administration order was sought following the death of his father.

2. The evidence set out below establishes that the condition that led the Tribunal to make the administration order set out below is permanent and will not improve.  Despite numerous applications, SAS has not led any substantive evidence that his condition has improved.

3. Section 47 of the State Administrative Tribunal Act 2004 (WA) (SAT Act) permits the Tribunal to dismiss an application when it is lacking in substance. In the absence of any evidence that his condition has changed, SAS's application is lacking in substance. Accordingly SAS's application is dismissed under s 47 of the SAT Act.

The original application and administration orders

1. This matter had a long procedural history.

2. On 8 October 2004, an application for an administration order for SAS was made.  That application was made to the predecessor of this Tribunal, the Guardianship and Administration Board.

3. A report dated 6 December 2004 prepared by a Neurological Nurse Specialist included a score for SAS of 15.1/70 following an ADAS Cognitive Subscale Assessment conducted on 3 December 2004.  The report stated that this indicated mild to moderate cognitive deficits.  The report concluded that SAS would not be able to manage financial responsibilities or make any major decisions on his own.

4. On 15 March 2005, the Tribunal made an administration order (the First Administration Order) under the Guardianship and Administration Act 1990 (WA) (GA Act) in the following terms:

   Upon an application dated 8 October 2004 by the applicant in respect of the represented person and upon the State Administrative Tribunal (the Tribunal) being satisfied that the represented person -

   (a)is unable, by reason of a mental disability to make reasonable judgments in respect of matter relating to all of his estate; and

   (b)is in need of an administrator of his estate; and

   (c)cannot have such need met by other means less restrictive of his freedom of decision and action.

   IT IS ORDERED THAT:

   1.[MB] [of address] and [JC] [of address] BE APPOINTED JOINT PLENARY ADMINISTRATORS of the estate of the represented person with all the powers and duties conferred by the Act.

   2.This order be reviewed by 15 March 2010.

Further applications

1. On 20 May 2005, SAS filed an application under s 86(1) of the GA Act seeking a review of the First Administration Order.  On 26 July 2005, the application was dismissed.

2. On 30 September 2005, SAS made another application under s 86(1) of the GA Act for a review of the First Administration Order.  On 8 November 2005, the application was dismissed.

3. On 25 November 2005, SAS made another application under s 86(1) of the GA Act for a review of the First Administration Order.  On 24 March 2006, the application was dismissed.

4. On 7 April 2006, SAS made an application under s 17A of the GA Act for a review of the order of 24 March 2006.

5. On 19 June 2006, a report dated 12 June 2006 was received by the Tribunal from Dr B, a Consultant Psychiatrist.  Dr B concluded that:

   All things considered, based on my assessments and collateral information that I have obtained, I would be reluctant to suggest that [SAS] has the capacity to manage his own financial affairs.

6. On 3 August 2006, the Full Tribunal appointed a new co­administrator but otherwise confirmed the First Administration Order, and dismissed the application dated 7 April 2006.

7. On 14 September 2006, SAS made a further application for review of the administration order under s 86(1) of the GA Act.

8. A Doctor's Guide Report from Dr L dated 10 October 2006 concluded that SAS was incapable of managing his financial affairs.  It noted that SAS regularly asked the same questions and that he had impaired short­term memory.  Dr L also noted that SAS had no insight into the fact that he had a disability.

9. On 11 October 2006, the application dated 14 September 2006 was dismissed.

10. On 13 September 2010, the Tribunal commenced a review of the First Administration Order under the GA Act. 

11. In the course of the Tribunal's review, a report dated 12 June 2009 from Ms Z, a Clinical Neuropsychologist, was provided to the Tribunal.  The report stated:

    …

    The referral indicates that [SAS] had a severe head injury two decades ago with subsequent neurosurgical intervention.  Clinically he displays significant frontal lobe symptoms including emotional instability, perseveration, viscosity of thought and questionable social judgement.  …

    …

    Attention and Working Memory

    [SAS's] basic auditory attention span ranged from Borderline to Low Average and whilst reduced was adequate.  His working memory (the ability to hold in mind and manipulate several items of information at once) was poorer ranging from Extremely Low to Borderline.

    Speed of Processing

    [SAS's] performance on speeded tasks ranged from Extremely Low to Average.  His higher scores tended to occur on the easiest tasks and collectively there was felt to be mild to moderate slowing.

    …

    Memory

    [SAS] was generally orientated, though was uncertain of the name of the Neurosciences Unit.

    [SAS's] performances on both visual and verbal memory tasks at various delay periods were variable ranging from Extremely Low to Average.  Collectively, his results show an adequate ability to learn and remember information, but with the quality of his encoding and recall being negatively impacted by his higher level cognitive compromise.  Specifically, he showed poor planning and organisation of material, little use of strategy, produced numerous repetitions and intrusions (recall of material not presented) and on occasion bizarre responses.  His unusual responses occurred when asked to reproduce a complex geometric design and were felt to reflect his disorganised approach to his initial copy.  In general, his recall was aided by the provision of cues and recognition formats. 

    Executive Functions

    Executive functions include a number of high­level cognitive abilities that help guide and control behaviour, such as planning , mental flexibility, inhibition of inappropriate responses, and generation of novel responses and ideas.  [SAS] performed poorly across all measures of higher level cognition.  On testing, he showed poor ability to switch flexibility between sets of information, was disinhibited, showed poor monitoring, made excessive errors and rule breaks and performed poorly on a complex planning task.  Qualitatively, he was verbose, tangential, showed poor organisation and limited use of strategy.  He also lacked insight into his difficulties.

    When asked a number of basic practical problems and a series of questions pertaining to independent functioning his responses were often broadly appropriate, but were frequently superficial solutions (e.g. placing a bandaid on a badly cut hand that would not stop bleeding) or out of keeping with seriousness of the problem (such as calling the SEC if the lights and television were off). Many of his other responses were irrelevant or simply tangential and did not address the question.

    …

    Capacity to Manage Finances

    Consistent with his existing administration order, the results raise concern about [SAS's] ability to manage his own finances.  In particular, he has extremely poor numeracy, generalised executive dysfunction and no insight into his difficulties. … It is felt that he does not have the capacity to manage his finances and that an administration order continues to be necessary.

    …

    Other Issues

    During the time spent with [SAS], he also stated that he felt his sister and nephew were inappropriately involved in many aspects of his life.  He reported that they have a key to his house and do not seek permission to enter the premises.  He stated that they undertook other activities such as supermarket shopping without input from him.  He further commented that they have contacted potential employers asking them not to employ [SAS].

    It is likely that much of what [SAS] considers to be 'interference and intrusion' is actually much needed support.

    …

12. Ms Z and Mr C, a Clinical Psychologist, had a therapeutic relationship with SAS from 2009.  Both maintained contact with SAS as a client.

13. Ms Z and Mr C completed a further report dated 28 October 2010 and concluded:

    …

    In relation to the impending review of his administration order, I continue to be of the opinion that [SAS] requires plenary administration.  Given the [SAS's] cognitive dysfunction relates to his traumatic brain injury sustained in 1973, his capacity to manage his finances would not be expected to improve in the future.

    …

14. On 21 December 2010, the order appointing the plenary administrators was confirmed and the administration order was ordered to be reviewed by 21 December 2015 (the Extended Administration Order).

15. On 15 November 2013, SAS made an application for review of the Extended Administration Order under s 86(1) of the Act.

16. A Doctor's Guide dated 18 February 2013 was prepared by Ms Z.   Her diagnosis was traumatic brain injury.  She concluded that SAS had significant executive dysfunction.  She concluded that SAS's cognitive impairment was static.  She recommended that SAS's administration order be continued.

17. On 20 December 2013, the Tribunal confirmed the Extended Administration Order and made an order that it be reviewed by 20 December 2018.

18. On 31 January 2013, SAS made a further application for a review of the Extended Administration Order under s 86(1) of the GA Act.  An order of the Tribunal made on 26 February 2013 gave SAS leave to withdraw the application and the application was withdrawn.

19. On 8 February 2016, SAS made a further application for a review of the Extended Administration Order under s 86(1) of the GA Act.  On 23 May 2016, an order was made confirming the joint plenary administrators and ordering that it be reviewed by 23 May 2021.

The latest application

1. On 17 March 2016, an application was made by SAS for a review of the order of 23 May 2016 under s 17A(1) of the GA Act.

2. The issue that now arises is whether the application of 17 March 2016 should be dismissed under s 47 of the State Administrative Tribunal Act 2004 (WA) (SAT Act).

3. Section 47 of SAT Act provides:

   (1)This section applies if the Tribunal believes that a proceeding ­

   (a)is frivolous, vexatious, misconceived or lacking in substance; or

   (b)is being used for an improper purpose; or

   (c)is otherwise an abuse of process.

   (2)If this section applies, the Tribunal may order that the proceeding be dismissed or struck out and make any appropriate orders.

   …

4. SAS has made repeated applications to have the First Administration Order and the Extended Administration Order reviewed.  None of these have been successful.

5. The contents of the applications made by SAS evidence that he is not satisfied with the orders.  However, the evidence, particularly that of Ms Z, establishes the need for an administration order.  SAS's condition is static and there is no evidence that it is likely to improve.

6. The Tribunal is sympathetic to the position SAS finds himself in, in that he is not able to comprehend the need for an administration order.

7. The resources of the Tribunal are not unlimited.  The Tribunal has a responsibility not only to SAS but to the wider community, to use those resources wisely.

8. SAS's present application is lacking in substance in that there is no evidence that his condition has improved so as to provide a basis for the order to be reviewed.

9. Even allowing for the fact that SAS is unrepresented and has an ongoing mental disability, the point has been reached when his application should be dismissed under s 47 of the SAT Act.

Orders

1.[SAS]'s application under s 17A of the Guardianship and Administration Act 1990 (WA) is dismissed pursuant to s 47(1)(a) of the State Administrative Tribunal Act 2004 (WA).

I certify that this and the preceding [35] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________

JUSTICE J C CURTHOYS, PRESIDENT