SG
[2011] WASAT 81
•30 MAY 2011
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: HUMAN RIGHTS
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: SG [2011] WASAT 81
MEMBER: JUSTICE J A CHANEY (PRESIDENT)
MS D TAYLOR (SENIOR MEMBER)
DR A MCCUTCHEON (SENIOR SESSIONAL MEMBER)
HEARD: 23 MAY 2011
DELIVERED : 30 MAY 2011
FILE NO/S: GAA 903 of 2011
BETWEEN: SG
Applicant
Catchwords:
Guardianship and administration - Review of appointment of Public Trustee as plenary adminstrator - Turns on own facts
Legislation:
Guardianship and Administration Act 1990 (WA), s 17A, s 86(1)
Result:
Administration order confirmed
Category: B
Representation:
Counsel:
Applicant: Self-represented
Solicitors:
Applicant: N/A
Case(s) referred to in decision(s):
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
SG sought a review of a decision of a single member of the Tribunal which confirmed the earlier appointment of the Public Trustee as plenary administrator of SG's estate. SG contended that, although he had originally initiated the application for the appointment of the Public Trustee, he did so under a misunderstanding as to benefits which would flow to him, and he no longer wished the appointment to be maintained. He contended that he did not suffer from the mental illness which formed the basis of the order, and that he had the capacity to adequately manage his finances. That view conflicted sharply with the assessment of SG's treating psychiatrist who considered that the maintenance of the administration order was very much in SG's interests.
The Tribunal assessed SG's submissions against his mental health history, and his treating psychiatrist's opinion. It concluded that SG lacked insight as to his capacity to manage his affairs and was unable, by reason of his mental disability, to make reasonable judgments in respect to his estate, and that he continued to be in need of an administrator of his estate. It therefore confirmed the order previously made.
Background
On 26 March 2010, the Tribunal made an order appointing the Public Trustee as plenary administrator of the estate of the applicant, SG. The order was to be reviewed by 26 March 2015. That order was made on the application of a social worker at Graylands Hospital. SG had been a patient at Graylands Hospital, although he had been discharged prior to the hearing on 26 March 2010. SG did, however, support the appointment of the Public Trustee as his administrator, and in fact appears to have initiated the application himself.
In April 2010, SG applied for a review pursuant to s 86(1) of the Guardianship and Administration Act 1990 (WA) (GA Act) to have the administration order discharged. However, before that matter was to be heard, a letter, apparently signed by SG, was received at the Tribunal advising that he no longer wished to 'get off the Public Trustee' and that letter was treated as a withdrawal of the application.
On 6 August 2010, a further application for a review under s 86(1) of the GA Act was made by SG, again seeking, in effect, to have the Public Trustee removed as administrator. That matter came before the Tribunal and was heard on 1 October 2010, at which time the order was confirmed.
A further application was made on 18 January 2011 by SG to have the order discharged. That application was dealt with on 11 March 2011 and, although the Tribunal confirmed the appointment of the Public Trustee as plenary administrator, it varied the review date of the appointment to a period of one year from that date, so that it was to be reviewed by 11 March 2012 (although the order actually issued referred to a review by 11 March 2013 - apparently a typographical error).
SG then sought a review pursuant to s 17A of the GA Act of the order made on 11 March 2011.
SG's contentions
SG explained to the Tribunal that the only reason he caused the application for appointment of the Public Trustee to be made initially was that he had been misled by patients at Graylands Hospital. He said that he had heard patients at the hospital saying that if a person was 'on the Public Trustee' they would be provided with a free car. He now realizes that that is not correct and thus his motivation for wishing to be 'on the Public Trustee' no longer exists.
Since the order was made in October 2010, SG has resided in hostel accommodation. The charges made for that accommodation cover the costs of his meals. From his disability pension of $820 per fortnight, the Public Trustee pays to the hostel the sum of $685 per fortnight. SG has a significant criminal history which has led to a large amount being due for unpaid fines and criminal injuries compensation. The Public Trustee has made arrangements with the Fines Enforcement Authority for the gradual reduction of the outstanding amount by fortnightly payments from the disability pension. That results in SG receiving $45 a fortnight for himself. He is frustrated by having insufficient funds to pay for cigarettes, transport and entertainment. SG says that his lack of access to money has caused him to engage in criminal activity to supplement his income. He contends that he would not have to engage in such activity if he had control of his own finances. SG told the Tribunal that he simply wants a fair go like all other people who get to control their own income, and that every day he thinks about the Public Trustee controlling his finances and restricting his freedom.
SG denied that he suffered from any mental illness, other than fluctuating moods and depression. He explained his 33 admissions to mental health facilities as being a result of his pretence to be mentally ill. He said that he pretended to demonstrate symptoms of mental illness because he enjoyed the company of other patients and liked to go into hospital to have fun. He denied that he used illicit drugs and said that admission records which stated that he was affected by drugs were based on what he told the hospitals to support his wish to be admitted.
SG said that, if he were to resume control of his finances, he would propose to stay at the hostel where he presently lives for the next six to 12 months. When it was pointed out that would mean that he would not have any greater amount of money available to him if he were to stay at that hostel, he accepted that fact but said that psychologically he would like to have the independence to know that he could alter his arrangements if he wished. When asked what he would spend his money on if he had access to it, he listed off various expenses for cigarettes, entertainment and transport which he calculated to amount to $80 to $90 per week. Clearly he would not be able to spend that amount if he were to remain at his present accommodation.
SG said that, if he had control of his funds he would, after a while, travel to Sydney to see his uncle, and then to his country of origin to visit his mother's memorial.
The treating psychiatrist's evidence
SG's treating psychiatrist told the Tribunal that SG had had 33 admissions to hospital, and that his case notes occupied nine volumes. He described SG as having a schizoaffective disorder and that remission was unlikely. The doctor acknowledged that SG had periods of being well, but at times was delusional and suffered from disordered mood states. He described SG's condition as having a characteristic that his mental state fluctuated from week to week if not day to day. He acknowledged that since October last year, when SG's residence at the hostel had been constant, he had been clinically much better and 'recently had been unprecedently good'.
The psychiatrist was doubtful that SG would ever have the capacity to manage his financial affairs. He said that he has antisocial personality traits and lacks insight into his situation. That lack of insight, he said, was illustrated by SG's aspirations as to what he might do with his funds given that, if he were to pay a realistic rent and realistic costs for food, he would be unlikely to have sufficient funds available to him to spend in the way he wished.
The psychiatrist considered that SG was vulnerable to exploitation by others.
Should the order be maintained?
It is quite apparent that, in the period leading up to the making of the first order in March 2010, SG's life had been in some degree of turmoil. He had spent periods on the street and in mental health hospitals. It was said by his treating psychiatrist, and we accept, that the period of stability that has existed since SG returned to the hostel, and his compliance with medication over that period, has greatly improved his mental health, although it has not eradicated his antisocial behaviour. We accept that SG suffers from a mental illness which impacts upon his judgment and insight into his decisionmaking. SG's denial that he suffers any mental illness illustrates that lack of insight. We do not accept SG's evidence that he tricked his way, on 33 occasions, into mental health facilities by pretending to have symptoms of mental illness. Nor do we accept his evidence as to his history of illicit drug use, which is inconsistent with his medical history. We do accept that at present he appears to be avoiding any illicit drug use and that probably has much to do with his current improvement in mental health.
We consider that SG's mental illness is likely to lead him to make unreasonable and inappropriate decisions about the expenditure of his funds.
We accept the treating psychiatrist's opinion that if SG were to again find himself on the streets because of an unwillingness or an inability to pay for secure and safe accommodation, he would put himself at significant risk of harm, and worsening mental health. In the circumstances, we consider that it has been demonstrated that he lacks the capacity to make reasonable judgments about his estate, and is in need of an administrator.
In reaching that conclusion, we are mindful of the clearly expressed wishes of SG. Although we have had regard to those wishes, they are not determinative of the application. Against the conclusions we have reached as to the best interests of SG, we do not consider that his wishes should, in this case, be implemented.
In the decision under review, the Tribunal member determined that, given the progress and stability that had been demonstrated by SG since October 2010, the order appointing the Public Trustee should be reviewed in 12 months, rather than in 2015 as originally specified in the orders of 26 March 2010. We agree that that is appropriate and the matter should be reviewed again in March 2012.
We also note that, at the hearing which is the subject of this review, the Tribunal directed the Public Trustee to investigate whether the fines and monies owed in respect to criminal injury compensations could be reduced other than by weekly payments as presently arranged. It is not clear whether any steps have been taken to implement that direction. We agree, however, that it is in the interests of SG that any opportunity to increase the funds available to him on a weekly basis should be explored and implemented.
We also note from a report submitted by the Public Trustee at the hearing that an amount of compensation has been received by the Public Trustee from Redress WA. We consider that there is significant risk that were SG to have unfettered access to those funds, it is highly likely that he would fail to make reasonable decisions in relation to the use of those funds, and may well be liable to exploitation by others. That provides an additional reason why it is appropriate, at least until the review in March 2012, that the Public Trustee remain appointed as plenary administrator of SG's estate. It may well be, however, that those funds can, and should, be used to enable SG to have an increased amount paid to him on a fortnightly basis so as to enable him to have more freedom to travel and participate in entertainment than he currently does. No doubt the Trust Officer responsible for SG's estate will give consideration to the application of those funds.
Conclusion
For these reasons, we consider that the order made by the Tribunal on 11 March 2011 should be confirmed, save to correct the review date so that it reads:
1.The Public Trustee of 565 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 Guardianship and Administration Act 1990 (WA).
2.This order is to be reviewed by 11 March 2012.
I certify that this and the preceding [23] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUSTICE J A CHANEY, PRESIDENT
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