T
[2020] WASAT 76
•8 JUNE 2020
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: T [2020] WASAT 76
MEMBER: MR J MANSVELD, MEMBER
HEARD: 11 MAY 2020
DELIVERED : 8 JUNE 2020
PUBLISHED : 17 JULY 2020
FILE NO/S: GAA 873 of 2020
T
Represented Person
Catchwords:
Guardianship and administration - Rare genetic syndrome - Response to behavioural problems - Mental health unit - Treatment of aggressive and violent outbursts - National Disability Insurance Scheme - Suitability to be appointed guardian and administrator
Legislation:
Guardianship and Administration Act 1990 (WA), s 4, s 44, Pt 5, Pt 6, Pt 7
Mental Health Act 2014 (WA)
Result:
Guardianship and administration orders made
Previous orders revoked
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 decision in this matter was delivered on 8 June 2020. The following reasons have been edited from the transcript to where necessary anonymise the names of the parties and to correct minor errors and omissions.)
Introduction
T was born on 20 October 2001. She is 18 years of age.
T has a rare genetic condition which is characterised by amongst other things, intellectual disability.
In late 2019 T's father R made an application to be appointed her guardian and the administrator of her estate. At that time T was still 17 years of age and if a guardianship order were to be made it could only apply from when she reached 18 years of age.
Applications for guardianship and administration orders fall to be considered under the Guardianship and Administration Act 1990 (WA) (GA Act).
According to R, T had been in his sole care since January 2013. Up until 2010 T had lived with both her parents and her brother. After her parents separated she lived with her mother from 2010 to 2013. Her mother now plays no part in her life.
On 7 October 2019 The Tribunal appointed R as the plenary administrator of T's estate with the gifting authority of $300 per annum and appointed him as her guardian to make decisions concerning her accommodation, whether she should work and if so the nature and type of work she should have, to make her treatment decisions, to determine the services to which she should have access and decide what education and training she should receive. The orders were set for review in 12 months (October 2019 orders).
Not long after the October 2019 orders were made a medical team at the mental health unit of a public hospital (mental health unit) sought review of the orders. The medical team noted that on 13 November 2019 T had been brought into the hospital's emergency department after she had inflicted superficial cuts to her legs with a kitchen knife. It was alleged this was precipitated by conflict with R and her brother with whom T was living.
T was placed under the care of the medical team then headed by Dr S, a Consultant Psychiatrist. In hospital integrated progress notes made soon after admission, Dr S said that T had made it very clear she did not want to continue living with her father and her brother. When R had attempted to say she did not mean this, T protested with outbursts of anger and hostility that required restraint and sedation. T allegedly said that R had been verbally and physically abusive towards her.
Dr S said that R had been found to be a difficult person to deal with and a difficult person to engage in a rational conversation. His decisionmaking was said to be erratic. He had allegedly withdrawn permission for T's respite placement without giving any reason. R had not been heard of since 18 November 2019 which was regarded as highly irresponsible in the circumstances. There were concerns about R's mental state.
The Tribunal convened an urgent hearing and on 22 November 2019, the October 2019 orders were revoked and the following orders were made in substitution. The Public Trustee was appointed as T's administrator under the same terms as the October 2019 orders and the Public Advocate was appointed T's guardian with the same functions given in the October 2019 orders and with the additional function of determining what contact she should have with others and the extent of that contact (November 2019 orders).
The November 2019 orders were set for review in six months.
On 28 February 2020 R sought review of the November 2019 orders stating that there had been a dramatic change of circumstances since the orders were made. T is an ongoing inpatient in the mental health unit and in his application R said that it was accepted that the mental health unit was not now the appropriate place for T and there had also been a change to the head of the treating team from Dr S to Dr C, Consultant Psychiatrist.
R was granted leave to review the November 2019 orders.
The hearing of the review took place on 11 May 2020 and was attended by R supported by MD from an advocacy agency, Dr C, representatives from the support coordinator under the National Disability Insurance Scheme (NDIS) (support coordinator) and AR, the delegated guardian from the Office of the Public Advocate (guardian).
The decision was reserved.
Decision
I have decided to revoke the November 2019 orders and in their place appoint R as T's limited guardian and plenary administrator. As limited guardian R will be given the following functions: to make decisions concerning where and with whom T is to live whether permanently or temporarily, to make her treatment decisions and to determine the services to which she should have access.
The administration order will be in the same terms as the October 2019 and November 2019 orders.
The guardianship and administration orders should be reviewed in 12 months.
My reasons follow.
Relevant legislation
Guardianship and administration matters are considered under Pt 5, Pt 6 and Pt 7 of the GA Act.
The principles to be observed by the Tribunal are set out in s 4 of the GA Act.
Relevantly:
•The primary concern of the Tribunal is the best interests of T.
•In considering the applications the Tribunal shall, as far as possible, seek to ascertain the views and wishes of T as expressed, in whatever manner at the time, or as gathered from her previous actions.
•T is presumed to be capable of looking after her own health and safety; making reasonable judgments in respect of matters relating to her person; managing her own affairs; and making reasonable judgments in respect of matters relating to her estate, until the contrary is proved to the satisfaction of the Tribunal.
•The Tribunal cannot consider appointing a guardian for T unless it is satisfied on the evidence that she is incapable of looking after her own health and safety; is unable to make reasonable judgments in respect of matters relating to her person; or is in need of oversight care or control in the interests of her own health and safety or for the protection of others.
•The Tribunal cannot consider appointing an administrator of the estate of T unless it is satisfied on the evidence that by reason of a mental disability, she is unable to make reasonable judgments in respect of matters relating to all or any part of her estate.
•Mental disability is defined in the GA Act to include an intellectual disability, psychiatric condition, an acquired brain injury and dementia.
•If a finding of incapacity is made in respect to T the Tribunal must further determine whether she is in need of guardianship and administration orders. If the needs of T can be met in a manner less restrictive of her freedom of decision and action then orders should not be made.
•If the Tribunal decides that T is in need of guardianship and administration orders it must then decide what authority should be given to the guardian and administrator, who the guardian and administrator should be and what review date should be set, given the requirement that orders must be reviewed at least once every five years.
•As to the authority given to a guardian, if a limited order is sufficient to meet the needs of T a plenary order should not be made. If limited guardianship and administration orders are made the orders must place the least restriction necessary on T.
•When reviewing guardianship and administration orders the Tribunal can relevantly confirm the orders, revoke the orders and substitute new orders for them or amend the orders.
Documents before the Tribunal
In addition to the application made by R, reports and documents were filed in with the Tribunal by:
1)Dr R, the medical officer at the mental health unit;
2)the senior social worker at the mental health unit;
3)the Public Advocate (a report with attachments including a hospital discharge summary form dated March 2018);
4)the Public Trustee;
5)R (various emails and photos sent by R to various politicians and agencies including the Tribunal); and
6)the advocacy agency (a submission on behalf of R).
Evidence and submissions
Dr C - Consultant Psychiatrist
Dr C confirmed that T suffers from a rare genetic syndrome a condition which features intellectual impairment, attention deficit hyperactive disorder, autism spectrum disorder, epilepsy and is associated with severe behavioural disturbances.
Dr C said that T had also developed a psychiatric condition which he called major depression with agitated features, impulsive decisionmaking and at risk behaviours. T is prescribed an antidepressant which has led to some improvement in her mental state.
T is prone to explosive outbursts which place herself and others at significant physical risk. Dr C could not rule out a neurological component to these events (which is something R would like explored).
T has been an inpatient in the mental health unit since November 2019 except for a brief few hours on 27 March 2020.
T remains an involuntary patient under the Mental Health Act 2014 (WA) (MH Act) and her status was recently confirmed by the Mental Health Tribunal.
Dr C said that the mental health unit is not the place for T and his treating team would accept any viable placement option for her. Unfortunately there are no ideal placements available currently because of T's complex needs and behavioural issues.
Dr C said he would not support T being discharged to the home where she lived with her father and brother prior to her admission to the mental health unit. T would need a graded and transitional discharge to suitable accommodation with nursing and disability support. What that accommodation might eventually be, Dr C said he would be guided by disability experts and T's guardian.
Dr C said that in his view T's guardian and her support coordinator have been proactive in their non-stop efforts to secure T suitable accommodation.
Dr C said that R has developed a working relationship with the current treating team and in the past few months has been very cooperative and assisting with T's management. He acknowledged that R has significant insight into T's behaviours.
Dr C accepted that there are different valid viewpoints on what is best for T, however it is necessary to focus on the needs of T.
The guardian
In her written report the guardian said that because of T's violent behaviour and escalation when under stress it has been very difficult to find appropriate accommodation that will keep her safe. Accommodation was found in March 2020 and on 27 March 2020, T moved into that placement which has a ratio of two-to-one agency support. Unfortunately the placement only lasted about four hours before police were called due to T's threatening behaviour and she was eventually readmitted to the mental health unit.
The guardian said that T has NDIS funding and has been approved for specialist disability accommodation. There has been ongoing communication regarding the specialist accommodation which unfortunately will not be available until after August 2020 and it is usually the case that for a person to access this type of accommodation they must transition directly from hospital.
The guardian said that in February 2020 T's epilepsy medication had been reintroduced by her treating doctor. R had previously ceased this medication.
In her written report the guardian said that T had consistently made it clear that she did not want to go back to live with her father. She said there have been reported incidents of T becoming upset at times when R has visited her at the mental health unit. The guardian suggests that R does not appear to have insight into some of his behaviours which might upset T.
The guardian said that she had been advised by Dr C on 17 April 2020 that after R had resumed visits to the mental health unit, Dr C had had some very active discussions with R which resulted in some changes to the visiting routine.
The guardian said that prior to the appointment of the Public Trustee as administrator, T did not have an income. However T is now in receipt of the disability support pension.
It is the view of the guardian that T should not return to live with her father and that she needs specialist accommodation with specialist assistance. The guardian said that she has had long conversations with R and he has provided a lot of information including T's history. She expressed some concern that R had not attended some meetings at the mental health unit prior to Dr C taking over as the consultant (R disputes this).
The guardian submits that R was fixated with his anger at Dr S which she believes clouded his judgment. She does not support R as guardian which she says would affect the father/daughter relationship which is important to T.
The guardian accepts that ongoing communication with R is important and she is willing to continue to make herself available to do so. R has provided a lot of information and should be kept in the loop.
The guardian proposes the reappointment of the Public Advocate as T's guardian with the functions of deciding her accommodation; treatment; services and contact, the latter function referencing T becoming upset at times when R visits the mental health unit and:
People questioning [T], and talking to her about things she does not understand, or which are reminders of previous trauma and not in her best interests. This will need to be monitored and acted on to ensure all contact is planned, so that it causes as little stress as possible.
(page 6 of the guardian's report)
Support coordinator
The support coordinator said that the NDIS Plan is a 'good plan' providing funding for 24 hour care with two support workers during the day and one support worker at night. Funding is also available for positive behaviour therapies.
T is currently eligible for special disability accommodation (in the 2019/2020 year), however the earliest available accommodation will be in August 2020 (in a new funding year). The accommodation is purpose-built specified in the robust category to provide a safe physical environment for T.
A potential accommodation provider is available now.
The restrictions arising out of the COVID-19 pandemic has slowed the process as accommodation providers have not accepted new residents.
R
R said he is alarmed at the evidence of the parties. He said that T had become a 'cash cow' for job creation for service providers.
R said that he has parented T on his own for seven years (with help from his son). He said that when in the care of her mother T had been abused.
R said that prior to November 2019 T had not had a 'meltdown' whilst in his care. He accepts that from around the middle of 2017 T had displayed periods of aggression at school and he speculated as to whether this had something to do with her beginning her menstrual cycle. However R considers a cause for the aggression to be the medication she was being given at school.
R said that T did not display that behaviour at home and over time she had achieved some independence in the home where he could leave her for up to four hours. She was attending a day placement.
Following the hospital discharge summary dated March 2018 in which T's aggressive and violent behaviour was documented, R reiterated his concern that the school authorities were 'pumping pills without my knowledge'. He said the school could not control T and she developed a flight or fight mentality, he says underscored by the previous abuse by her mother.
R stated that decisions were being made for T by people who know nothing about her disability. T has a rare condition and he has had years of parenting to understand its nuances. T requires consistency, routine and with pressure kept to a minimum. She requires repetition and should not be overloaded with information.
R said that he predicted the failure of the attempted accommodation placement on 27 March 2020 and says that any accommodation proposed by the guardian and the support coordinator will also fail because no one has yet come to terms with what is causing T's extreme behavioural disturbances.
R said that T was prescribed antipsychotic medication when she was first placed in the mental health unit. He knew from a previous hospital admission that antipsychotic medication actually produces psychotic behaviour in T.
R said that T has not been treated well in the mental health unit. She has been heavily sedated. She has dental issues that have not been dealt with, her scoliosis has not been treated and in general her activities of daily living seem to have been neglected. He said that T appears to have changed from a relatively independent well-groomed person to something entirely different.
R said that when caring for T he did not suffer carer burnout. He acknowledges that he was under significant pressure but was managing. T was fit and healthy and wellgroomed. R states that T's care was underfunded at the time.
In reference to T purportedly saying she did not want to return home, R speculates that T was encouraged by her school to see herself as an adult when she turned 18 years of age with the belief that she could move out of home. Ultimately T was becoming bored and isolated at home.
R said he is greatly concerned about any damage that has been done to T during her stay at the mental health unit. He sees the primary task to be one where the cause of the 'meltdowns' needs to be established and that accommodation options including special disability accommodation is not worthwhile until the 'meltdowns' are dealt with.
R said that he accepts that T cannot be discharged home and agrees with Dr C that she requires a graded transition to accommodation once discharged from the mental health unit. R says that he has no problems working with Dr C and since Dr C has taken over from Dr S, he has had good discussions with him.
R submits that he is the one with the best understanding of T's disability and needs. He submits that he should be appointed guardian for T because he is the best person for the role and needs to be able to speak about T's needs with the appropriate authority.
Submission by M, advocate from the advocacy agency
In her oral submissions, M produced what she said were photos of T prior to her admission to the mental health unit in November 2019. She said the photos showed that T was happy, healthy and wellgroomed and participating in the community which is entirely different to her current state. M said that she has witnessed 'the before and after' of T's presentation.
M stated that whilst in hospital there has been no effort made to keep T in contact with the outside world and speculates that T's depression is, in part, a consequence of the situation in which she now finds herself namely, hospital accommodation
M submitted that although outwardly irascible and at times verbose, R can be engaged by those involved in T's care to provide his expertise on T's disability.
M said that the advocacy agency has behavioural specialists that can assist in understanding what is causing T's 'meltdowns'. The advocacy agency is willing to work with R and others to progress T's discharge from the mental health unit.
M said that she had not engaged with the current guardian because she did not have faith that it would lead to useful progress.
With regards to T's purported statements that she did not want to return home, M said that this has not been properly tested as T has also asked her father to get her out of the mental health unit.
M submits that R should be reappointed as his daughter's guardian for the reasons given.
The administrator
In a written report, the trust manager stated that T receives a disability support pension and that she has accumulated savings of about $6,600. The hospital admission had not incurred costs at the time of that report.
Reasons for decision
It is common ground that T is a person for whom a guardian and administrator can be appointed. Because of her complex disabilities she is unable to protect her own health and safety and is in need of oversight and care in the interests of her own health and safety and for the protection of others. Her disabilities also prevent her from making reasonable judgments concerning personal and financial matters.
It is clear and again not in dispute that T is in need of a guardian and an administrator of her estate. The primary question and the one which has been the subject of the most debate is who should be appointed to those roles.
Section 44 of the GA Act provides guidance to the Tribunal in the decision as to who should be appointed a person's guardian. The Tribunal must be satisfied that the proposed appointee (who must be an adult) will act in the best interests of the person and not be in a position where his or her interests conflict or may conflict with the interests of the person. In addition, the Tribunal must be satisfied that the proposed appointee is otherwise suitable to be appointed and must as far as possible take into account the following factors:
•the desirability of preserving existing relationships within the family of the person;
•the compatibility of the proposed appointee with that person and with the administrator (if any) of that person's estate;
•the wishes of the person; and
•whether the proposed appointee will be able to perform the functions vested in him or her.
The fact that the proposed appointee may be a relative of the person is not of itself sufficient to be taken as a conflict of interest, nor is the fact that the proposed appointee is the appointed administrator of the person deemed to be a conflict of interest.
Importantly, unless appointed jointly with the proposed appointee, the Tribunal shall not appoint the Public Advocate as guardian unless there is no other person who is suitable and willing to act.
Looking at s 44 as a whole it is clear that the GA Act has an intentional bias towards the appointment of a family member of the person or someone close to the person.
In the case of T, it can be accepted that R, as her father, in the absence of anyone else, would be the obvious choice as her guardian in light of the factors described in s 44 of the GA Act. The question for the Tribunal is whether R, by his actions, makes it now not appropriate for him to be appointed.
It needs to be remembered that R was first appointed T's guardian and administrator after having himself made the application to the Tribunal. It seems that it was an uncontroversial appointment at the time. That changed dramatically when T was admitted to the mental health unit in November 2019.
There were serious allegations made against R at the time which he disputes.
There was clearly a clash between the then head of the treating team, Dr S and R which made impossible the collaborative management of the issues T presented. In those circumstances the Public Advocate and Public Trustee were appointed guardian and administrator respectively.
It is without doubt the case that T's stay in the mental health unit has been a traumatic one. Although universally accepted that T should be provided with suitable accommodation away from the mental health unit there is not yet a clear path and agreement as to how that might occur.
It seems to be accepted that R has a profound understanding of T's disabilities and their impact, he is her parent and prior to the admission to the mental health unit had parented his daughter solely for seven years. However even he is perplexed as to the origins of T's explosive outbursts and what is the best way to manage them.
I am persuaded by R's contention that until the genesis of T's extreme behaviours can be ascertained and managed, it is more likely than not that those outbursts will continue to sabotage accommodation plans as they did when she was briefly placed in supported accommodation on 27 March 2020. Dr C accepts for example that a neurological component to the outbursts cannot be excluded.
I accept that R, both in the written material before the Tribunal, and in his oral evidence, has displayed anger and frustration at how the current situation for T has been reached. I am willing to accept that this is the likely product of the impotence R has felt since T was admitted to the mental health unit in November 2019 when in his view his parenting of T over a long period and his knowledge of her seemed to be disregarded.
Whilst not discounting what T is alleged to have said at the time, what the situation then required in my view was a calm reflection on the circumstances which led to admission to the mental health unit and discussions which should not have excluded R. As already mentioned this fell away almost instantly given the clash between R and Dr S.
It is clear that R is a very strong advocate for his daughter and this may be perceived at times as an arrogance and an unwillingness to consider other views. It could also be taken to be the natural inclination of a parent to express forcefully to others his knowledge of his child. It needs to be remembered as the evidence shows in this case, that when a family has a family member with disabilities outside intervention (even when given with the best of intentions) is a recurrent fact of life and requires the parent(s) to constantly explain to others their child's disabilities.
Of course the focus must always be the person with the disability and his or her needs, particularly his or her safety and his or her right to lead a life of quality.
In the case of R, this requires in my view an acceptance by him that he does not have all the answers and that he needs to engage positively with those outside organisations and agencies that have an important role to play in T's life. By those I principally mean currently, the team at the mental health unit and the support coordinator under the NDIS.
It is arguable that in the statements R has made, he will find doing this difficult. However T's current situation cannot be wished away and recriminations will not help to progress her discharge from the mental health unit.
It is also a fact that T's eventual accommodation will rely on funding from the NDIS and again will require R to accept the presence of this system and work with it.
I am heartened by the fact that R and Dr C appear to be able to work together in coming to terms with T's present situation and what that might mean for her eventual discharge from the mental health unit.
It is important in my view not to underestimate the ongoing importance of Dr C and his team. T is an involuntary patient under the MH Act. The involuntary status is subject to regular review by the Mental Health Tribunal. Dr C has said that in the current circumstances he will not support a return of T to live with her father. In his evidence, R accepts this to be the case. I take R's statement in this regard and his expressed willingness to work with Dr C as a genuine expression of his intent.
Time will tell whether I am correct in my assumptions.
For all these reasons I will appoint R as T's limited guardian in the terms earlier mentioned and revoke the appointment of the Public Advocate.
For much the same reasons I will appoint R as the plenary administrator of T's estate and revoke the appointment of the Public Trustee.
The orders will be reviewed in 12 months.
Orders
The Tribunal declares that the represented person, T is:
(a)unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all of her estate;
(b)in need of an administrator of her estate;
(c)incapable of looking after her own health and safety;
(d)unable to make reasonable judgments in respect of matters relating to her person;
(e)in need of oversight, care or control in the interests of her own health and safety or for the protection of others; and
(f)in need of a guardian.
The Tribunal orders:
Administration
The administration order dated 22 November 2019 is revoked and substituted with an order in the following terms:
1.R of [address] is appointed plenary administrator of the represented person's estate with all the powers and duties conferred by the Guardianship and Administration Act 1990 (WA).
2.The administrator is authorised to expend up to a total amount of $300.00 per annum on gifts on behalf of the represented person.
3.The administration order is to be reviewed by 8 June 2021.
Guardianship
The guardianship order dated 22 November 2019 is revoked and substituted with an order in the following terms:
4.R of [address] 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); and
(d)To determine the services to which the represented person should have access.
5.The guardianship order is to be reviewed by 8 June 2021.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MR J MANSVELD, (MEMBER)
17 JULY 2020
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