Victorian Civil and Administrative Tribunal|2001-11-30|Before: Dr P

Malama Guardianship Admin Order [2001] VCAT 2221 (30 November 2001)

S60A Guardianship and Administration Act 1986 - Application for a re-hearing - hearing de novo

Medium Neutral Citation [2001] VCAT 2221

1. Section 46(1)(a) of the Guardianship and Administration Act 1986 provides that where this Tribunal is satisfied that a person has a relevant disability and is in need of an administrator of her or his estate, it may make an order appointing that administrator. This Tribunal appointed State Trustees as the administrator of EM. At that time the administration was confined to issues in relation to Family Court proceedings initiated by EM. She then applied pursuant to s61(3)(b) of the Act to have the order of 5 December 2000 revoked. This year this Tribunal declared that it was satisfied that there was a need for an administrator within the meaning of s46(1)(a). Further it accepted an argument on behalf of State Trustees that the powers of the administrator should be expanded to cover EM's entire estate.

2. Being dissatisfied with that conclusion, EM has applied pursuant to s60A for a rehearing of her revocation application. Section 60A is a comparatively recent amendment to the Act being inserted by the Courts and Tribunals legislation (Miscellaneous Amendments) Act 2000. Section 60A(1) provides:-

"(1) If the Tribunal makes an order in respect of an application under this Act (other than an interim order or a temporary order), a party or a person entitled to notice of the application may apply to the Tribunal for a rehearing of the application".

3. It follows that these proceedings before me are a rehearing of the original application. I am required to consider the matter de novo. I have read the reasons given by the Tribunal but it is clear that my obligation is to express my own conclusion.

4. EM was born in 1938. She has been married twice. The first marriage lasted twelve years. She and her then husband had two sons. The elder lives with her. That marriage ended in 1975.

5. In 1980 she married her ex-husband who was then an accountant. According to EM the marriage was an unsatisfactory one principally because of the financial relationship. EM has claimed that he was mainly interested in the extent to which she could make a financial contribution. When this was reduced he chose to terminate the marriage. They separated in 1992.

6. In 1994 consent orders concerning the property of the parties were made in the Family Court. It is EM's attempts since 1999 to have those orders overturned, that has been the catalyst for events culminating in this application.

7. EM has been a patient of Dr L, a general practitioner for twenty years. The principal issue in the case has been EM's mental and psychological status over that period of time but principally since 1992. Obviously Dr L has been in an excellent position to express an opinion. I have only a short report from him dated 20 February of this year. In it he says "although she sometimes has trouble expressing herself, I have not found her to be paranoid."

8. EM's other medical history is relevant. Dr L referred her to a psychiatrist, Dr P on 18 August 1992. Given the number of consultations EM has had with him, his report is remarkably short. She saw him on four occasions in 1992, ten in 1993, six in 1994, eight in 1995, six in both 1996 and 1997, five in 1998 and five in 1999. As of the date of the report, which is 22 November of that year, Dr P's opinion was that EM "suffers from chronic depression with paranoid features." He lists what are said to be frequent complaints that she has made. He said that "when she is preoccupied with the alleged misdeeds perpetrated on her by her ex-husband, her previous solicitors and the Law Institute she can become paranoid and disorganised." He has provided regular anti-depressant medication, in particular Aurorix and Risperdal. His conclusion was that:

"I believe that due to this lady's high anxiety levels, paranoid tendencies, poor concentration and vagueness, she would find it difficult to conduct her legal affairs and communicate with her solicitors. This is especially so when one considers that English is not her first language."

9. In circumstances that are unclear, Dr M who seems to have been treating EM in respect of work related conditions in the 1980s referred her to a psychologist, Ms K in March 1999. Ms K has provided a detailed report directed to the Family Court. It contains a great deal of detail concerning EM's history and in particular, the complaints that she has concerning her ex-husband, her previous solicitors and Dr P.

10. It appears that EM claimed to be feeling considerably better once she had stopped taking Aurorix, an anti-depressant prescribed by Dr P. Having heard EM describe what had been done to her and her complaints concerning the people she blames, the psychologist came to the view that she was not prepared to dismiss the possibility that EM had been the victim of a complicated and clever conspiracy. She said:-

"EM presents as an extremely well organised individual who has shown me relevant documentation, has organised this documentation and prepared her own case to present to the court. In particular, she took it upon herself to find the Act to be used to reopen her case in the Family Court. EM presents her facts regarding her financial and legal affairs in a coherent manner with well structured and organised argument. Overall, my observations of EM is that she is not experiencing a delusional thought pattern."

11. Again in circumstances that are unclear EM was referred to another psychiatrist Dr V. I have his report of 14 June 2000. He saw EM on two occasions. He also saw her son and had access to reports from Dr P and Ms K.

12. It is apparent that EM gave a history of deluded thought. She felt that Dr P had become involved with her ex-husband and this had influenced the doctor to prepare an unfavourable report which made her out to be unwell. On mental state examination Dr V thought that EM presented as a:

"well groomed co-operative woman who came to the interview with a bagful of what appeared to be papers. Her affect was anxious but not depressed. She was keen to provide as much history as she could in the time available and this resulted in a over detailed complex history. Her thought form was circumstantial and sometimes tangential but she did not exhibit loosening of associations. The content of her thoughts resolved around the injustice of her ex-husband's actions and the need to expose his fraud. The beliefs about the lawyers, the bank and Dr P's involvement possibly overvalued ideas, and at times bordered on delusional intensity. She was not able to acknowledge that there may not have been any crime committed, or that perhaps she had gotten it all wrong...On cognitive assessment, EM was orientated to person, place and time...If her beliefs regarding her husband and others who have conspired with him were the result of mental illness she would most be likely be suffering from a paranoid delusional disorder. Consistent with this diagnosis, she appears to have retained aspects of her personality and she has continued to function in other areas of her life - activities of daily living and social interactions. She has no symptoms to suggest a diagnosis of schizophrenia or a bi-polar disorder nor or any progressive neuro-degenerative disorder."

13. With regard to her ability to understand the nature of the proceedings and whether she was capable of giving adequate instructions Dr V said:-

"She does not present with evidence of cognitive impairment - she has no deficits of memory, language or frontal function to suggest a dementing disorder or any focal cognitive impairment. From this point of view I believe that she is able to understand the nature of the proceedings and to give adequate instructions. If she is suffering from a paranoid delusional disorder, I do not believe that this is necessarily impairing her ability to understand proceedings but it could affect her ability to provide informed instructions to her solicitors or to conducting the proceedings in a manner which is to her advantage ie. she may present information which is incorrect but which she believes is true based on her beliefs and interpretation. As stated above however I cannot conclusively state that EM has a mental illness without further information and without a more longitudinal perspective."

14. With that background and with the letter of reference from which I have already quoted, earlier this year Dr L referred EM to Dr H another consultant psychiatrist. I have his reports of the 5 May and 31 July.

15. Dr H expanded upon his opinions in oral evidence and was extensively cross-examined by counsel for EM's ex-husband. Dr H was asked to see EM because she was seeking a review of the earlier administration order.

16. That review was the proceedings that came before the Tribunal. As Dr H understood his task, EM's problems had their origin in her firmly held belief that she had been defrauded by her ex-husband and that her attempts to reopen the Family Court settlement of 1994 had resulted in the issue of her capacity being referred by that Court to this Tribunal, resulting the original administration order.

17. Dr H understood that EM had been pursuing her allegations with great energy and at significant financial cost to herself. He also understood that her allegations had been investigated by State Trustees who had been appointed her administrator. State Trustees had come to the conclusion that the allegations could not be sustained and had agreed to them being withdrawn. That is a decision with which EM firmly disagrees. At the moment there is a costs application that has been reserved pending the outcome of this application for revocation.

18. The report was written by Dr H after three consultations. He has since had another five consultations. EM is now his patient. He has provided treatment in the nature of psychotherapy. He has considered medication and discussed this with her but the decision has been made that none should be provided. Dr H thought that his views were similar to those expressed by Dr V and Ms K. He also thought "a high degree of consistency between this report and that of Dr P". He thought that EM:-

"at various times...does appear to function with the attitude that people are somehow working against her. In my opinion this does not preclude her from an ability to freely instruct her own freely appointed legal representative...In conclusion EM does not appear to be suffering from a definitive psychotic mental illness. I believe that she does have the mental capacity to give instructions in relation to her Family Court proceedings. However EM appears to have a personality style that is coloured or characterised by a paranoid style of thinking, particularly when stressed or challenged. She may be vulnerable in making poor financial decisions as to what extent she spends her money on fruitless legal proceedings. Although I may doubt the wisdom of her pursuit, I do not believe that it is my role to make judgments which can only be derived from a thorough legal understanding of the merits of her case."

"my statement opining on EM's personality style should in no way be taken as a qualification to my opinion about her capacity to (be) giving legal instructions in her pursuit of financial justice. It was not intended to be a qualification of such. In this case I believe it to be prudent to make a clear distinction between the person suffering a mental illness and a person's personality or character."

20. As I understood it the principal point being made by Counsel for EM's ex-husband was that as a result of

(i) the extravagant and unlikely nature of the claims made by EM concerning not only her ex-husband but her solicitors, the Law Institute and Dr P and;

(ii) the convincing rebuttal provided by the affidavit filed by Her ex-husband in which he provides specific responses to all the allegations made by EM and;

(iii) the fact that EM's allegations have been investigated by State Trustees during their period of administration and found to be unsubstantiated to the extent that they were prepared be consent to the claim being withdrawn.

I should be satisfied that there is no substance in the allegations.

21. Counsel for EM's ex-husband's point is that I should evaluate the evidence of Ms K, Dr V and Dr H with the advantage of knowledge that they did not have ie. that there is simply no foundation for any of EM's allegations. Accordingly, when I evaluate their evidence with this background I should conclude that EM's level of paranoia is in fact more advanced than the various practitioners have been prepared to concede by reason of their uncertainty surrounding her claims.

22. I think that there is some basis for this submission. Not unnaturally, the practitioners involved here have been reluctant to dismiss their patient's allegations without the matter being carefully investigated. As I understood Dr H, that is something a psychiatrist could never do unless the claims were self evidently absurd. He thought there was nothing about the claims themselves or the way in which they were presented by EM that justified pre-emptory dismissal.

23. I have already referred to the comments of Ms K about the ordered way in which the claims were made and supported. This argument was put squarely to Dr H. As stated, he has now had the advantage of five recent consultations since writing his principal report. He thought that EM's problems in part might be a consequence of difficulty with communication, as at times "she is all over the place". He pointed out that apart from the issues concerning her financial relationship with her ex-husband there was "no irrationality in her communication whatsoever." He said this was very relevant to his diagnosis. He noted that she was living with a supportive family who believed she was functioning well in every other aspect of her life. Dr H thought that "for her to have a psychiatric condition for years it is inconceivable that a caring family would not have picked it up".

24. Dr H had spoken to EM's son to determine the attitude of her family to her. In my opinion this last point is extremely important. The position seems to be that after a difficult and perhaps abusive first relationship, EM has had the obligation to support two sons. It appears that she worked when she was able to do so and in this way provided a home for herself and her family. She remains close to those sons both of whom support her in this current application. They deny the existence of any psychiatric disturbance.

25. It follows that in every aspect of her life other than in what are said to be these deluded claims concerning her ex-husband, EM has functioned at a perfectly adequate level. In her personal life she looks after herself and her home without difficulty. She has done so for many years. There is no suggestion that her affairs are in any way in need of administration other than to suppress her desire to pursue what appears to be a hopeless allegation that she has been extensively defrauded by her ex-husband.

26. The Family Court has already made an order that she not be at liberty to issue fresh proceedings without the leave of a Judge. As counsel for EM submitted, this is very relevant. Her ex-husband's purpose in being represented before me was to maintain the existing administration order so that the decision to issue fresh proceedings would be that of an administrator rather than that of EM. I can understand that attitude as Her ex-husband claims that the earlier proceedings cost him a lot of money. Clearly it would be in his interests for the administration order to be maintained.

27. My obligation is to determine on the evidence whether I am satisfied that the standard imposed by s46 is reached. It provides that an order should be made if I come to the conclusion that EM is:-

(ii) is unable to make reasonable judgments in respect of the matters relating to all or any part of her or his estate by reason of the disability; and

(iii) is in need of an administrator of her or his estate.

28. EM's estate as I understand it consists principally of her home which is unencumbered. It is said that she is at risk of significant financial loss if she takes further proceedings which must inevitably be lost and which will result in a significant costs order against her. Already she is facing the prospect of a substantial order for costs.

29. Nevertheless, my conclusion is that EM does not suffer a mental or psychiatric disorder of any magnitude. It may well be that it is her current firm desire is to take proceedings that appear from this perspective to be unwise. Even in that context Dr H said that he noted in his most recent consultation with EM that in respect of those proceedings what she wanted to do was get advice from a lawyer whom she felt she could trust. If that advice was that the proceedings should not be taken she would comply.

30. Unquestionably EM has a belief that she has been defrauded. That belief appears to be ill founded, but it does not necessarily follow that she is "unable to make reasonable judgments in respect of her estate". I take the view she is not in need of an administrator of her estate. Accordingly her application to review the order is successful. That order will be set aside.

Administration Act 1986

(Miscellaneous Amendments) Act 2000

Malama Guardianship Admin Order [2001] VCAT 2221 (30 November 2001)

At a glance

Court

Decision date

Before

Source

Judgment (46 paragraphs)

Malama Guardianship Admin Order [2001] VCAT 2221 (30 November 2001)

Legislation Cited (2)