SJ - [2021] WASAT 119

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION:   SJ [2021] WASAT 119
MEMBER:   DR E MARILLIER, MEMBER
HEARD:   12 AUGUST 2021
DELIVERED          :   12 AUGUST 2021
PUBLISHED           :   6 SEPTEMBER 2021
FILE NO/S:   GAA 3317 of 2021

SJ
Represented Person

Catchwords:

Dissociative personality disorder - Guardianship and administration - Turns on own facts

Legislation:

Guardianship and Administration Act 1990 (WA), s 4(2), s 4(3), s 4(4), s 4(7), s 40, s 51, s 64(1), s 65, s 86, s 110ZD, s 112(4)

Result:

Public Advocate appointed guardian

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:

(The application was heard and determined on 12 August 2021 and oral reasons delivered on 3 September 2021. The following reasons comprise the reasons that were delivered orally, subject only to minor editing to anonymise parties, improve clarity of expression and set out).

Background

SJ is a 29yearold woman who suffers from dissociative personality disorder and post traumatic stress disorder. She most frequently identifies as 'Mi', an adult who is able to function in most day-to-day situations, but has multiple 'alters' or alternate personalities, some of whom are children and others of whom have maladaptive coping mechanisms such as self-harm.
At hearings before the Tribunal, SJ has identified as 'Mi', so I will use that name for the rest of these reasons for decision, other than when I am talking about the whole person, who I will call SJ.
'Mi' first became subject to a guardianship order under the Guardianship and Administration Act 1990 (WA) (GA Act) in August 2020, when I found that she was in need of oversight, care or control in the interests of her own health and safety. I appointed the Public Advocate as her guardian for contact and next friend decisions, as 'Mi' had been feeling compelled to visit 'others' who sexually and physically abused her, but was unwilling to disclose their identities to support workers or police due to fear of retribution. She had told support workers and therapists that there had been a long history of abuse, and it was felt by them that this had triggered the mental health conditions which she now experiences.
The initial application had been brought by SJ's treating team in the context of an unplanned pregnancy arising from a sexual assault. Her child alters who were unwilling to undergo medical treatment had become present, and the treating team were concerned about the ongoing risk to her physical and mental health arising from a lack of medical care. With support from staff at the short-term step-down accommodation where she lived, medical treatment was eventually achieved, and the pregnancy ended in miscarriage prior to the hearing.
Given the fierce desire of 'Mi' to maintain as much autonomy of decisionmaking as possible, and the fact that informal support had been sufficient to permit medical treatment decisions to be made in her best interests, plus the support of the treating team in providing stable accommodation and support to navigate the National Disability Insurance Scheme (NDIS), I found that there was no need to make a broader order at that time. Financial matters appeared to have been dealt with adequately by 'Mi', and so no administration order was made.
On review of the initial order in February 2021, I added the medical treatment authority for the guardian. This occurred because 'Mi' had had further occasions where she had left her accommodation and experienced physical harm (burns) when visiting the 'others', and she had not always been able to make decisions in her own best interests regarding medical treatment. There was ongoing concern from the treating team that were she to sustain further physical injury, given her social isolation and the lack of family who could make a decision on her behalf under s 110ZD of the GA Act, she would be without a substitute decision-maker, and it was reasonably foreseeable that this circumstance would arise.
I note that the medical report of the treating psychiatrist, Dr W, indicated his significant concern that SJ had not identified as SJ for many months, in effect, being continuously dissociated for that period, and that this called into question her ability to make reasonable judgments in her best interests about any aspect of her life. Again, it appeared that the informal supports around 'Mi' were sufficiently strong that decisions regarding accommodation, services and finances could be managed without the need for orders.
'Mi' explained that the child alters understood that those types of big decisions had to be made after discussion with 'Mi', and that they complied. Support workers indicated that they felt this was workable, and that further loss of autonomy risked precipitating decompensation and further fracturing of identities.
The current application for urgent review of the scope of the guardianship order under s 86 of the GA Act was made by the delegated guardian from the Public Advocate. 'Mi' had dissociated and found herself days later in Brisbane airport. She called her guardian, who was able to guide her through identifying her location. 'Mi' managed to find accommodation at a back packers hostel but continued to have switches of identity. Her guardian had tried to guide her to making her way to a hospital to seek assistance but held grave concerns for her health and safety, leading to the application to add accommodation and services authorities.
At the hearing on 12 August 2021, I made orders reappointing the Public Advocate as the limited guardian with the authority to determine accommodation, treatment, contact, services, next friend and travel decisions for SJ. That order is to be reviewed by 12 August 2022.
I also accepted an oral application under s 40 of the GA Act to consider the appointment of an administrator for SJ. I made emergency orders appointing the Public Trustee as the plenary administrator for SJ under s 65 of the GA Act pending determination of whether she is a person for whom an administration order should be made.
My reasons for these decisions follow.

The principles to be observed

In making a decision the Tribunal must observe the following principles:
a)the Tribunal's primary concern is the best interests of the person concerned;[1]
b)every person is presumed to be capable of looking after his or her own health and safety; making reasonable judgments in matters relating to his or her person; of managing his or her own affairs; and of making reasonable judgments in respect of matters relating to his or her estate; until the contrary is proven to the satisfaction of the Tribunal;[2]
c)orders shall not be made where there is an alternative means of meeting a person's needs that is less restrictive of their freedom of decision and action;[3] and
d)the Tribunal must seek to ascertain as far as possible the views and wishes of the person concerned and take them into account.[4]

The evidence before the Tribunal

[1] GA Act s 4(2).

[2] GA Act s 4(3).

[3] GA Act s 4(4).

[4] GA Act s 4(7).

The Tribunal had a discharge summary from the Mental Health Unit at Rockingham General Hospital (Mimidi Park) relating to an admission from 17 to 31 May 2021, as well as the reports on file from the 2020 matters.
At the hearing, the delegated guardian (GH), 'Mi', a social worker at a Brisbane hospital (Ms C), and the service manager at 'Mi's' service provider Mind Australia (Mr S) all provided oral evidence.

Does SJ have capacity to make reasonable decisions in her own best interests in regard to personal decisions?

In the six months since the previous hearing, the long-term project to find appropriate supported independent living options for SJ via NDIS funding as an alternative to her continuing residence at the short-stay step-down unit had progressed.
'Mi' detailed her frustrations in trying to advocate for her needs (including for communication around the process and the decisions being made) with her service co-ordinator. Unfortunately, despite her efforts, and the fact that she had the right to make her own accommodation and services decisions, 'Mi' found herself in a position where she was told she was moving to a specific location with a specific service provider during her admission.
'Mi' was discharged three days after receiving this news to find that she had to move in three weeks. She stated that she asked continuously for information on who was providing her supports, what were the conditions and the cost.
When 'Mi' finally saw the service agreement, she could see that it reflected arrangements which were unaffordable for her, so she refused to sign the agreement. She did sign a one day service agreement so that the service provider could be paid for the work they had already done. 'Mi' indicated that this had involved support workers coming to help her with transition, who knew nothing about her or her condition, or were irregular in their attendance, which caused her distress and frustration.
'Mi' could tell she was at risk of decompensating, so she attended the hospital and had an overnight voluntary admission. She knew she had only a few days left in her current accommodation and was contemplating unsafe choices like returning to the 'others' or sleeping in her car. However, due to a miscommunication, the step-down facility thought she had decided to leave that day, so on return from the hospital she was handed her keys and belongings. She packed as much as she could, moved some loads into storage which she had arranged prior to going to hospital as she could see it would be needed. She spent the weekend in her car.
'Mi' stated she had been told she had to be at the step-down at 10 am on the Monday to go to the new accommodation, and although she was pretty shocked and part of her 'did not want to turn up, she parked outside on the Sunday night so she 'would not be late. She stated 'I know I wasn't present at 10 I was locked in my car', 'I was present at 11am sitting on the grass with (support workers)'. She was reassured by the new service provider that they would work things out and agreed to go to the new place, but was still very concerned that things had not been done properly.
'Mi' tried to organise a meeting with her guardian and service provider and make sure everyone was on the same page. During that process, it became clear the NDIS plan had not been done properly, and 'Mi' saw an email that said she had to be out of her accommodation by the following Monday. She was distressed but packed everything again, and remembers being called and asked if she wanted to come back and get the food out of the fridge at 10 am. She did not as she was homeless and had no way to keep the food.
The next thing 'Mi' remembers is that she was in an airport; it turned out to be in Brisbane. She had no identification or bank card, but had a lanyard and a coin purse with money in it. She saw a missed call on her mobile from GH at the Office of the Public Advocate and called back GH. 'Mi' recalls that she was then going to go and try to get help but could not remember anything between that time and the morning of the hearing (three days later).
GH has known SJ since April 2021, covering for the previous guardian, but intensively involved for the week prior to hearing, after the service provider contacted him with significant concerns, and stated that 'Mi' needed to be out of the accommodation quite quickly. He noted that he did not have accommodation and services authorities, and it was this which prompted the initial application. Subsequently, SJ dissociated and found herself interstate, bringing the application to even greater urgency. GH had been able to act with SJ's consent as her advocate in the interim.
GH noted that there was now a lot of work to be done with NDIS and accommodation decisions, particularly given that the long-term plan for SJ (articulated at previous hearings) had been for her to relocate interstate to appropriate supported independent living. He was very concerned regarding her financial vulnerability when alters other than 'Mi' made decisions, with her current circumstances including having a car in short-term parking at Perth airport, belongings in storage and no access to her bank accounts.
GH noted that while 'Mi' is very capable, SJ is extremely vulnerable.
Ms C filled in the missing part of the recent events, noting that 'Mi' was now admitted to the mental health unit at a Brisbane hospital under an involuntary treatment order.
SJ had not been able to attend the emergency department independently, but the hospital had been called by the staff of a fast food restaurant next door, concerned for SJ's safety in the context of dysregulated behaviour and taking a paracetamol overdose. For most of the intervening time, the alter present was 'Lilly', a child alter who had not been able to provide any useful information to the staff. Ms C had only met 'Mi' that morning, which had allowed the team to understand the situation better, along with contact from the Tribunal and the delegated guardian which had occurred serendipitously when Ms C called back a missed call on SJ's mobile. Ms C noted that 'Lilly' had approximately $2,000 cash on her when she was brought into hospital, which was now being held in the hospital trust account, and would only be repaid to SJ as a cheque, which would not be of use to her if she was unable to cash it or deposit it into a bank in the absence of her identification or bank card.
I was satisfied that the events of the previous six months, and particularly the previous week, demonstrated that when alters other than 'Mi' are present, SJ's health, safety and finances are at risk. Under stressful circumstances, flicking to the alters other than 'Mi' is more frequent and prolonged. The current circumstances show that SJ is unable to make reasonable decisions regarding her person, as demonstrated by her interstate travel, dysregulation and overdose and inability to communicate her identity and circumstances to treating staff for several days.

Is there a need for a guardian?

The events outlined above make it clear that the informal supports have been insufficient to protect the health and safety of SJ in the context of her complex mental health condition.
I am satisfied that SJ's needs for personal decision-making can only be met through the appointment of a guardian, noting that at times she may be able to make decisions in her own best interests, and only require advocacy, but when a less capable alter is present, decisions may need to be made on her behalf to protect her from neglect, abuse and exploitation.[5]

What should be the scope of the order?

[5] GA Act s 51.

The current circumstances where 'Mi' is interstate, an inpatient, and in need of discharge planning, require the delegated guardian to have authority for medical treatment, accommodation, services and travel decisions, as well as the contact and next friend authority which were in place to permit the delegated guardian to take protective action should 'Mi' identify the people who harm her.

When should the orders be reviewed?

Review of the orders in 12 months' time was recommended by the delegated guardian and supported by 'Mi'. I am satisfied this is in the best interests of SJ, hoping that the circumstances will have stabilised by that time in a way that may permit narrower orders.

The decision of the Tribunal – Guardianship order made 12 August 2021

On 12 August 2021, I made the following orders:
The Tribunal declares that the represented person, SJ is:
(a)incapable of looking after her own health and safety;
(b)unable to make reasonable judgments in respect of matters relating to her person;
(c)in need of oversight, care or control in the interests of her own health and safety; and
(d)in need of a guardian.
The Tribunal orders:
Guardianship
The guardianship order dated 8 February 2021 is revoked and substituted with an order in the following terms:
1.The Public Advocate of David Malcolm Justice Centre, Level 23, 28 Barrack Street, Perth, Western Australia is 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)to make treatment decisions for the represented person, subject to Division 3 of Part 5 of the Guardianship and Administration Act 1990 (WA);
(d)to determine what contact, if any, the represented person should have with others and the extent of that contact;
(e)to determine the services to which the represented person should have access;
(f)as the next friend of the represented person, commence, conduct or settle any legal proceedings on behalf of the represented person, except proceedings relating to the estate of the represented person;
(g)to decide whether the represented person is to travel interstate or overseas;
(h)to decide the terms and conditions for the represented person's travel interstate or overseas; and
(i)to liaise with the represented person's administrator, any airline or other transport organisations, and any state, federal or consular authorities as required to complete the functions under this order.
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.The guardianship order is to be reviewed by 12 August 2022.

Emergency orders made 12 August 2021

On an oral application made at the hearing on 12 August 2021 by THE PUBLIC ADVOCATE pursuant to s 40 of the Guardianship and Administration Act 1990 (WA) for the appointment of an administrator of the estate of SJ ('the proposed represented person') referred to Member E Marillier and on the Tribunal being satisfied that:
(a)the proposed represented person may be a person in respect of whom a declaration should be made pursuant to s 64(1) of the Guardianship and Administration Act 1990 (WA); and
(b)it is necessary to make immediate provision for the protection of that person's estate,

pending determination of the question of whether the proposed represented person is, in fact, a person in respect of whom a declaration should be made pursuant to s 64(1) of the Guardianship and Administration Act 1990 (WA) it is on 12 August 2021 ordered that:
1.Pursuant to s 65 of the Guardianship and Administration Act 1990 (WA) The Public Trustee is authorised to exercise the functions of a plenary administrator with all the powers and duties conferred by the Guardianship and Administration Act 1990 (WA) to protect and secure all of the estate of the proposed represented person.
2.The matter is listed for a hearing to commence at 12 pm on 12 October 2021 for a duration of 1 hour at 565 Hay Street, Perth, Western Australia with parties to attend by video conference or by telephone.
3.It is the intention of the Tribunal to conduct the hearing by telephone. If you wish to attend the hearing please provide in writing to the Tribunal a contact telephone number no later than 7 days prior to 12 October 2021.
4.The Executive Officer must provide, on the request of a party, an application form for access to inspect documents or other material lodged with or held by the Tribunal pursuant to s 112(4) of the Guardianship and Administration Act 1990 (WA) for the purposes of this proceeding.
5.An application pursuant to s 112(4) of the Guardianship and Administration Act 1990 (WA) must be filed with the Tribunal by 4 October 2021.

6.There is liberty to the proposed represented person or any party to apply to set aside or vary this order on short notice.
7.The Tribunal will provide to the Public Trustee a copy of all documents received by the Tribunal for the purposes of this proceeding.
8.The Public Trustee is requested to provide a report regarding their authority under the above appointment within three days of the hearing.
9.The Public Trustee is at liberty to apply for the hearing of the application to be brought forward to an earlier date should this be considered necessary in the proposed represented person's best interests.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
DR E Marillier, MEMBER
7 SEPTEMBER 2021