VCAT
OYN (Guardianship) [2019] VCAT 474 (3 April 2019)

VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
HUMAN RIGHTS DIVISION
GUARDIANSHIP LIST

OYN (GUARDIANSHIP) [2019] VCAT 474 (3 APRIL 2019)
LAST UPDATED: 10 APRIL 2019

VCAT REFERENCE NO. G79726

Link to this case on Austlii

CATCHWORDS
Reassessment of administration order – new medical report suggests represented person has no disability – discrepancy with historical reports – revocation of order

REPRESENTED PERSON: OYN
WHERE HELD: Melbourne
BEFORE: Member A. Smith
HEARING TYPE: Final hearing
DATE OF HEARING: 20 March 2019
DATE OF ORDER: 20 March 2019
DATE OF WRITTEN REASONS: 3 April 2019
CITATION: OYN (Guardianship ) [2019] VCAT 474

ORDER
Having reassessed the administration order the Tribunal makes the following order:
The order is revoked.

A. Smith
Member

APPEARANCES:
Mr M. Elvin, solicitor for OYN
WJL
Mrs S. Lyttleton

REASONS

The Victorian Civil and Administrative Tribunal (VCAT) is providing these reasons on a confidential basis. Clause 37(1) of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998 provides that unless VCAT orders otherwise, a person must not publish or broadcast any report of a proceeding under the Guardianship and Administration Act 1986 that identifies or could lead to the identification of a party to the proceeding.

BACKGROUND

On 25 September 2017, the Tribunal appointed Suzanne Lyttleton as a limited administrator for OYN. At that time, there was a very significant dispute between OYN and his brother, WJL, about the distribution of the estate of their mother who died in 2015. There is a long standing and intractable breakdown in the brothers’ relationship. One result of that breakdown is that the Court ordered the appointment of a professional administrator to replace the brothers as executors of their mother’s estate.
WJL made the original application for appointment of an administrator for OYN because he feared that OYN’s share of their mother’s estate would be quickly eroded because of OYN’s addiction to illicit drugs. The application lacked a clear source of evidence that OYN was a person with a disability.
The application was referred by the Tribunal to the Office of the Public Advocate for investigation of whether OYN has a disability. That Office referred OYN for a neuropsychological assessment with Dr Monica Williams. She diagnosed him as having a cognitive disability and reported her opinion that OYN lacked capacity to make reasoned financial and legal decisions because of that disability. The Office of the Public Advocate reported to the Tribunal on 23 August 2017 and recommended that an administration order be made. The following month the Tribunal made a limited order appointing Mrs Lyttleton, such order to be reassessed no later than 30 September 2018.
Reassessment of the order was adjourned on 11 December 2018 and the order was confirmed pending reassessment. There were further adjournments in February and March 2019. The matter came before me on 20 March 2019 for reassessment of the order. OYN attended with his legal representative. WJL attended. Mrs Lyttleton also attended.
The solicitor for OYN argued that OYN has capacity to manage his affairs and that the order should be revoked. Mrs Lyttleton made no submissions regarding OYN’s capacity and indicated she would accept whichever outcome the Tribunal ordered. WJL argued that the administration order should be renewed.
QUESTIONS TO BE DETERMINED

Upon reassessment of an order, the Tribunal addresses the elements of making an original administration order as set out in section 46(1)(a) of the Guardianship and Administration Act 1986 (the Act). These are that the person about whom an application is made:
is a person with a disability; and
is unable to make reasonable judgments in respect of the matters relating to all or any part of his estate by reason of the disability; and
is in need of an administrator of his estate.
These questions are to be determined considering the principles in the Act and the overriding presumption of capacity. The principles require that:
the means which is the least restrictive of a person’s freedom of decision and action as is possible in the circumstances is adopted; and
the best interests of a person with a disability are promoted; and
the wishes of a person with a disability are wherever possible given effect to.
Additionally, regard must be had to the Charter of Human Rights and Responsibilities Act 2006 (the Charter). This requires that I interpret statutory provisions, as far as is possible, in a way that is compatible with human rights. Section 7(2) of the Charter provides that a human right may be subject under law only to such reasonable limits as can be demonstrably justified and taking into account all relevant factors such as the nature of the right, the nature and extent of the limitation and its purpose, any less restrictive means reasonably available to achieve the purpose that the limitation seeks to achieve. An administration order generally limits various human rights, such as property rights, but is generally made to ensure observance of other human rights of the person with a disability.
PSYCHOLOGICAL ASSESSMENTS OF DISABILITY:

I will compare the assessments of Clinical Neuropsychologist, Dr Monica Williams, in 2017 and Clinical Neuropsychology registrar, Amanda Niu, and Clinical Neuropsychologist, Dr Judy Tang, in 2019.
As noted above, on 11 August 2017 Dr Williams diagnosed OYN as having a cognitive disability. Dr Williams relied on historical information about OYN’s poor attention to paying fines and bills. Dr Williams administered the following psychometric tests:
Wechsler Adult Intelligence Scale – 4th edition
Wechsler Test of Adult Reading
Wechsler Memory Scale – 4th and 3rd edition (selected subtests)
Boston Naming Test
Controlled Oral Word Association Test
Animal Fluency Test
Rey Complex figure Copy Test
Simple Copy Figure test
Stroop test
Trail Making Test
Wisconsin Card Sort Test
Beck Depression Inventory II
I note that the Office of Public Advocate report detailed the significant reluctance that OYN expressed to being assessed by Dr Williams in 2017 and his qualified consent to attendance for assessment.
After assessment, Dr Williams found evidence of moderately severe adaptive intellectual impairment, severe slowing of speed, severe memory impairment for complex information and executive level impairments including reduced attentional control and novel problem solving and planning and organisation.
Dr Williams reported his verbal conceptualisation skills as ‘average’, perceptual reasoning skills as ‘borderline’, his working memory functions as ‘low average’ and processing skills as ‘severely impaired.’ She noted no marked impulsivity. She rejected any finding of symptoms of depression.
On 12 March 2019, OYN was assessed by Ms Niu and Dr Tang. I infer that OYN attended voluntarily for the assessment with a view to the revocation of the order. The assessment proceeded over 3.5 hours. Through OYN’s solicitors, Ms Niu and Dr Tang provided an extensive report of the assessment to the Tribunal. The assessors were apparently not provided with a copy of Dr Williams’ report. They possibly had less information about OYN’s history of non-payment of fines and bills than Dr Williams.
Ms Niu and Dr Tang administered six psychometric tests:
Advanced Clinical Solutions for the WAIS IV and WMS IV – test of Premorbid Functioning
California Verbal Learning Test – 3rd edition
Delis-Kaplan Executive Function System
Trail Making Test – Number Switching
Wechsler Adult Intelligence Scale – 4th edition
Wechsler Memory Scale – 4th edition (selected subtests)
They reported that OYN’s verbal comprehension index is ‘average’, his perceptual reasoning index is ‘borderline, his working memory index is ‘average’ (an improvement from ‘low average’ in 2017) and his processing speed index is ‘borderline’ (an improvement from ‘severely impaired’ in 2017). They reported his judgement to be ‘grossly intact’ and insight to be ‘grossly intact’. They noted his abstract reasoning to be in the average range compared with age related peers. They reported no evidence of impulsive responding. They noted some depressive symptoms for which they recommended counselling.
On the question of whether he has a disability, they reported:
Overall, his cognitive profile is suggestive of long-term pervasive cognitive strengths and weaknesses specific to his current cognitive profile. It does not reflect any form of acquired or degenerative neurological disorder. … [They noted that reduced processing speed skills were likely attributable to long term consumption of illicit substances.] As such, [OYN’s] current cognitive functioning should be considered relatively stable and permanent. [OYN] is not considered to have a disability.

On the question of his capacity to make reasonable decisions, they reported:
Based on the current assessment, there does not appear to be any specific factor that would preclude him from making reasonable decisions and judgments in respect of [decision making] areas.

OYN argued that the Tribunal should accept the report by Ms Niu and Dr Tang in preference to the historical report by Dr Williams. OYN also submitted a brief letter from Dr Bruce Ingram dated 14 March 2019 and Dr Simon Slota-Kan dated 20 September 2017. Both noted that he had scored 30 (full marks) on a Mini-Mental State Examination test (MMSE).
WJL asked me to exclude Ms Niu and Dr Tang’s report claiming it had been obtained by OYN’s solicitors, whereas Dr Williams’ report was ordered by the Tribunal through the Office of the Public Advocate, and therefore holds no weight. He suggested its contents may have been fraudulent, although he also said he had no evidence to support that assertion. He further referred to the fact that OYN’s fines remain unpaid and made other assertions about OYN’s financial irresponsibility.
FINDINGS

I note that OYN wishes to have the order revoked. It is clearly less restrictive (as relevant to both in the Act and the Charter) to have no administration order than to have a limited administration order. I do not consider that I ought to apply the test of OYN’s best interests unless I am satisfied that he has a disability and is incapable of making reasonable decisions about his estate or part of it.
With regard to a finding of whether OYN has a disability, letters from Dr Bruce Ingram and Dr Simon Slota-Kan carry little evidentiary weight because the MMSE is merely a screening test and is not a conclusive test of capacity. The detailed assessments and reports of Dr Williams and of Ms Niu and Dr Tang are of more relevance and importance to my deliberations. I note however that the MMSE results were more consistent with Ms Niu and Dr Tang’s report than Dr Williams’ report.
I reject WJL’s objections to Ms Niu and Dr Tang’s report. There is absolutely no evidence to support the assertion that the report was obtained fraudulently or has been ‘doctored’ in any way. I do not accept that I should give lesser weight to their report because it was obtained by agencies other than the Tribunal or the Office of the Public Advocate. I note that both assessors used similar batteries of tests and both assessments were performed by qualified, registered professionals.
The fact that OYN is, in WJL’s assertion, still not meeting his financial responsibilities is not evidence of a disability.
There are many similarities in the assessments and results in the 2017 and the 2019 psychological reports, yet they come to quite different conclusions. Several issues may explain that discrepancy, such as the financial history available to the practitioners, differences in OYN’s enthusiasm to attend the assessments, or OYN’s possible recovery of cognition and memory in the interim. Clearly, he performed much better on memory testing and processing speed in the latter assessment.
I accept Ms Niu and Dr Tang’s report as credible, as I accept Dr Williams’ report as accurate at that time. I consider that they each went about their task of assessing OYN’s intellectual functioning in a professional and diligent manner. Ms Niu and Dr Tang’s approach was similar in many respects to Dr Williams’ approach but come up with different results. As I have said above, there may be many explanations for the difference in outcome. However, none of those is a reason to discredit Ms Niu and Dr Tang’s report or to fundamentally negate their findings.
I note that Ms Niu and Dr Tang may not have had access to Dr Williams’ report or to the full extent of OYN’s history of non-payment of fines and bills. I do not consider that this weakens their findings significantly. When they conducted their assessment, they were entitled to proceed from a presumption of capacity and to draw their findings primarily from the results of the psychometric tests. Perhaps Dr Williams took more account of the historical factors in drawing conclusions, or perhaps OYN simply improved over the nearly two-year period between testing.
Applying the presumption of capacity and the least restrictive alternative, I accept Ms Niu and Dr Tang’s report as an accurate assessment of OYN’s current abilities and as evidence that OYN is not a person with a disability, though he may have been in 2017. Having made that finding it is not necessary for me to consider whether OYN is capable of making reasonable decisions about his estate or any part of his estate, however I note that their report states that he has such capacity.
OYN’s brother argues that OYN continues to make poor financial choices and should remain on an administration order. Many persons in this community make poor financial choices. Unless they have a disability, they do not attract the making of an administration order as is consistent with the application of the provisions in the Charter and the Act. As I have found that OYN is not a person with a disability any longer, I have no powers to continue the administration order.
The administration order is revoked.

A. Smith

Member