19 August 2019, 3 October 2019 and 16 December 2019

MJG (Guardianship) [2020] VCAT 250

Having reassessed the administration order and the guardianship order the Tribunal makes the following order:

The Tribunal is satisfied that the represented person has a disability; is unable by reason of that disability to make reasonable judgments about their person or circumstances and estate; and needs a guardian and an administrator.

1. The Public Advocate, Office of The Public Advocate 1/204 Lygon St, CARLTON VIC 3053, be appointed limited guardian of the represented person with powers and duties:

1. The Tribunal approves delegation by the Public Advocate of the Public Advocate's powers and duties as guardian of the represented person to an officer or employee employed in the Office of the Public Advocate.
2. Suzanne Lyttleton, Suzanne Lyttleton Lawyers Po Box 2181, ST KILDA WEST VIC 3182, be appointed administrator of the estate of the represented person with all the powers and duties conferred by Part 5 Divisions 3 and 3A of the Guardianship and Administration Act 1986.
3. The administrator continue to lodge with the Tribunal Accounts by Administrator (ABAs) for each financial year, commencing on 1 July and ending on the following 30 June, as soon as practicable after 30 June but no later than 30 September in each year.

who may charge the estate an examination fee only if approved by the Tribunal.

1. The guardianship order be reassessed no later than 31 December 2021 and the administration order be reassessed no later than 31 December 2021.
2. The guardian shall, no later than 3 business days prior to the date on which the guardianship order is to be reassessed, provide to the Tribunal a written report concerning the represented person and decisions made by the guardian on behalf of the represented person.
3. This order shall continue to have effect until further order of the Tribunal.
4. The administrator and the guardian shall immediately notify the principal registrar in writing of any change of address of the represented person, the administrator or the guardian.
5. The Tribunal has considered the relevant human rights as set out in the Charter of Human Rights and Responsibilities Act 2006 (the Charter). The rights of the represented person to privacy, freedom of movement, equality before the law, without consent are, or might be, engaged. Taking into account the findings made, the Tribunal is satisfied that the limits imposed by the guardianship / administration orders are reasonable and justified in accordance with s 7(2) of the Charter.

The represented person, the applicant, or any other person, may apply to the Tribunal for a reassessment of this order at any time.

For the guardian Dr Norman Chia, Mr Michael Wells, and

For the administrator Mr Patrick Lyttleton and Mrs Suzanne Lyttleton

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.**

1. MJG is currently the subject of guardianship order and administration orders.
2. The Public Advocate is the guardian with authority limited to decisions concerning accommodation and access to services. That appointment was made on 21 June 2018.
3. The administration order was made on 1 June 2018. Mrs Suzanne Lyttleton, solicitor, is the appointed administrator.
4. The Tribunal conducted the reassessment of both orders over three hearings in 2019 - 19 August, 3 October and concluding on 16 December, when the Tribunal reserved its decision to be provided with these written reasons. MJG remotely attended the three reassessment hearings - twice by telephone and once by video link. MJG was provided with the reports of those who had assessed and reported on his decision-making capacity as well as the reports of the guardians and the submissions made by the lawyers representing his parents.
5. MJG is currently aged 27. In his infancy he was diagnosed as a high functioning autistic child. He received intensive intervention throughout his childhood and adolescence. At 15 years of age, he was diagnosed with autism spectrum disorder (ASD) with socialisation and communication deficits, stereotyped and obsessive behaviours and sensory processing abnormalities.[1] Dr Richard Eisenmajer, clinical psychologist and autism specialist, described MJG at that time as having significant organisation and planning problems, very weak impulse control, distractibility and poor attention.
6. MJG attended mainstream schools with the assistance of an aide. After completing secondary education, he commenced tertiary studies before being suspended by the university.
7. Through childhood, adolescence and early adulthood, MJG lived with his parents and sister. At some time prior to the application to the Tribunal, he moved into a unit owned by his parents to trial living by himself. He has apparently come to resent his family. He has blamed them for his lack of practical and emotional skills and for engaging specialist services to assist him in his development. He told the Tribunal that his family denied him the opportunity to learn through being allowed to experience challenges and learn through trial and error. Currently the family have intervention orders in place preventing MJG from visiting them or committing acts of family violence.
8. MJG is fiercely opposed to being identified as a person with disability. The orders of guardianship and administration offend him. He rejects, in principle, his engagement with the National Disability Insurance Scheme (NDIS) and receipt of a Disability Support Pension because he does not accept that he qualifies for same.
9. On 1 May 2018, MJG was admitted to a metropolitan acute adult mental health unit. Police had taken MJG to hospital after they conducted a welfare check and found him to be living in squalid, extensively damaged and unhygienic conditions. He was detained, initially on a temporary treatment order.[2] MJG's father made application to have an administrator appointed so that MJG could access support services funded through the NDIS. MJG attended the hearing by telephone and opposed the application. The treating team supported the application as a means of engaging the support they had assessed MJG as requiring in order to achieve a level of stability and independence.
10. On 1 June 2018, the Tribunal appointed an administrator for MJG. In addition, the Tribunal asked the Public Advocate to investigate and report to the Tribunal as to whether MJG faced issues that would indicate the need for a guardian.
11. After separate meetings with MJG, his parents and senior mental health clinicians, the Public Advocate made an application for guardianship. The Tribunal conducted the second hearing at the mental health unit on 21 June 2018. MJG attended personally and was represented by Victoria Legal Aid. The Tribunal appointed the Public Advocate as limited guardian for MJG.
12. After discharge from the mental health unit in July 2018, MJG moved to a supported residential service. Within two weeks, in which time he threatened to cause property damage and violence to staff members, he left the SRS and moved to a boarding house. Within a week, MJG was detained by police following an incident at a train station which involved protective services officers. After an incident in August 2018 where, it is alleged MJG attended his family home and caused property damage, police obtained an interim intervention order which prohibited MJG from attending the family home. In September 2018, MJG attended his sister's home and allegedly made threats against her family. MJG was arrested and remanded in custody.
13. He was assessed by a forensic psychologist who reported to the Court that MJG was unfit to plead by reason of mental impairment. At Court, MJG refused legal representation and told the Magistrate he wished to plead guilty. His plea was accepted and he was convicted and released.
14. Over the following weeks, family violence intervention orders were made protecting his parents and his sister and her family. In addition, MJG was evicted from his accommodation and police were called to enforce the eviction. He was detained overnight in a mental health unit. MJG expressed a wish to return to jail and he acted in contravention of the intervention orders by sending threats to family members. He was returned to jail to await the hearing of charges against him.
15. On appeal, the conviction ordered on his plea was quashed. He has remained in jail pending hearing of the original charges.
16. On 19 August 2019, the Tribunal commenced a hearing to reassess the orders of guardianship and administration. MJG attended by telephone from prison. The proceeding was adjourned to enable MJG to consult with his newly appointed lawyer. By the same order, the Tribunal ordered a further assessment of MJG's decision-making capacity by a clinician with expertise in ASD.
17. The hearing resumed on 3 October 2019. MJG had, in the days prior to the hearing, dismissed his lawyers. MJG attended the hearing by video link. He had refused to participate in further assessment of his decision-making capacity. The Tribunal heard from counsel for MJG's parents, and from the guardian and administrator but there was insufficient time to allow MJG to make his submissions. The proceeding was again adjourned.
18. Sometime after the hearing on 3 October 2019 and when the hearing resumed on 16 December 2019, MJG had been released from prison but within several days, again allegedly acted in contravention of the intervention orders. He was again remanded.
19. MJG attended the final part of the reassessment hearing via video link from jail. MJG represented himself and made oral submissions to supplement notes he had submitted. At the conclusion of the hearing, the decision was reserved to be provided with these written reasons.

Guardianship and Administration Act 1986

1. Sections 22(1) and 46(1) of the Guardianship and Administration Act 1986 (GAA) require that, in considering applications for the appointment of a guardian and administrator, that the Tribunal be satisfied that the proposed represented person:

1. has a disability; and 2. is unable to make reasonable judgements in respect to matters relating to part of all of his estate or person or circumstances because of the disability; and

1. is in need of a guardian and/or administrator.
2. Section 4 of the GAA provides that in "in every function", the Tribunal (and any guardian and administrator appointed by the Tribunal) must:

1. adopt the means which is the least restrictive of the person's freedom of decision and action[3]; and 2. promote the best interests of the person[4]; and

1. give effect to the person's wishes wherever possible[5].
2. Section 61 of the GAA provides that the Tribunal must reassess orders of guardianship and administration within 12 months unless otherwise ordered and, in any case, within three years.
3. On reassessment, the Tribunal may by order amend, vary continue or replace the order subject to any conditions considered necessary or revoke the order.[6]
4. As a public authority, when making decisions regarding the appointment of a guardian and or administrator, the Tribunal is bound by section 38(1) of the Charter of Human Rights and Responsibilities Act 2006 (the Charter) to give proper consideration to relevant human rights.[7]
5. The Tribunal is also obliged by section 32(1) of the Charter to interpret all statutory provisions "in a way that is compatible with human rights, so far as possible to do so consistently with their purpose".
6. Section 7(2) of the Charter sets out principles and relevant factors which guide the Tribunal in deciding whether the limit proposed on the protected right is justified.

DOES MJG HAVE A DISABILITY WHICH AFFECTS HIS DECISION-MAKING CAPACITY?

1. MJG was diagnosed with ASD from three years of age and in 2017 with adjustment disorder.[8] Dr James Hare, general practitioner, noted that MJG had been a patient of his clinic since childhood. He opined that MJG has the cognitive and executive function limitations, and limited practical life skills, which are commonly associated with ASD.
2. Dr Angela Livingstone, consultant psychiatrist, Victorian Dual Disability Service, interviewed MJG on 21 May 2018 for the purpose of understanding whether he had "a treatable mental illness or whether his aggression and intransigence was related to his autism[9]". In her report, Dr Livingstone noted MJG's presentation:

does not appear to be a result of a treatable mental illness. He does not present with the underlying features of depression or psychosis at this time and there is no evidence that he has in the past.

[MJG's] cognitive rigidity and black and white thinking and intolerance of ambiguity and misunderstanding as common features of his ASD.

1. Dr Margaret Ambrose, senior clinical neuropsychologist, Eastern Health, assessed MJG in May 2018. Dr Ambrose saw MJG twice while he was an in-patient. On the basis of clinical and psychometric assessments conducted, Dr Ambrose concluded:

Based on his (a) reduced ability to process new information (b) narrow understanding of his autism and the supports provided to him in the past and (c) inability to effectively weigh up the pros and cons of options available to him in the community, it is my opinion that [MJG] does not have the capacity to make decisions around his lifestyle (e.g. community supports, placement). [MJG's] superior verbal abilities might belie his specific disabilities and need for supports.

1. Dr Rebecca Fraser, lead consultant psychiatrist, Eastern Health provided two reports to the Tribunal. In her report dated 31 May 2018, Dr Fraser wrote:

In young adulthood, [MJG] is experiencing significant difficulties which have resulted in homelessness, interrupted schooling, stress with family relationships, self-injurious behaviour, property damage and assaultive behaviour. It is my opinion that [MJG] does not currently have the skills to manage his own finances; or to make decisions about his financial affairs; or to make decisions about his own access to support services; and that this is due to his autism.

[MJG's] autism is a disability that is significantly impacting on his ability to make decisions about his finances and an administrator is required to proceed with his ongoing health care treatment planning and for any future discharge from hospital planning.

1. In her second report dated 18 June 2018, Dr Fraser wrote:

[MJG] was recently appointed a financial administrator by VCAT. It is my clinical opinion that, in addition to not currently having the skills to manage his own finances; or to make decisions about his financial affairs; [MJG] does not currently have the capacity to make decisions about his own access to support services and that [MJG] does not have the capacity to make reasonable decisions about the appropriateness or suitability of his accommodation; and that this lack of capacity is due to his autism.

[MJG's] autism is a disability that is significantly impacting on his ability to make decisions about his access to support services for his autism and for suitable accommodation.

1. In May 2018 while an inpatient, MJG was also assessed by an occupational therapist who applied the Assessment of Motor and Process Skills, "a standardised evaluation of a person's ability to perform personal and domestic activities of daily living tasks. In her report dated 8 June 2018, Claire Oswald-Jones noted that:

[MJG] appears to act on impulse and emotion rather than logic or knowledge to tackle his challenges. In addition, [MJG] has difficulty making decisions. He has a concrete and rigid thinking style and great difficulty with weighing up consequences of his action. He cannot tolerate ambiguity or abstract concepts.

1. MJG acknowledged his diagnosis of ASD but disputed that it caused him to be unable to make reasonable judgements for himself. He noted his lack of experience in a range of life areas including domestic and travel skills. He attributed his difficulties to being deprived of opportunities to experience challenges and learn through mistakes. He submitted that he would be able to compensate for any current deficits in life skills through watching instructional videos on the internet. He saw his difficulties as being functional challenges rather than any difficulty in making decisions. He told the Tribunal:

I don't deny that I'm behind intellectually - I dispute the cause.

I have terrible anger control thanks to years of emotional abuse.

Autistics have a weakness for not seeing past logic.

1. MJG submitted that in determining decision-making capacity, the Tribunal must assess with reference to statutory criteria, which are based on assessment of cognitive functioning not by reference to descriptions of behaviours which give rise to contestable value judgements.
2. At the final hearing, MJG acknowledged that autism impaired his decision-making in some ways. He submitted that "reasonable" was relative - he said that since his discharge from hospital he had survived. He argued that it was his right to choose survival on his own terms rather than having others make decisions for him.
3. MJG submitted that what Dr Fraser saw an emotional dysregulation was, in fact, distress he felt as a result of denied opportunities.
4. Dr Elizabeth Brophy, counsel for MJG's parents submitted that there was cogent and probative evidence of MJG's disability and further, that his disability resulted in inability to make reasonable judgements in relation to his estate and certain matters relating to his person and circumstances. Counsel submitted that the Tribunal should be persuaded of this by the reports of senior clinical neuropsychologist, Dr Ambrose, lead consultant psychiatrist, Dr Fraser and occupational therapist, Ms Oswald-Jones.
5. On reassessment, the guardians[10] agreed with the findings made in June 2018 that MJG is affected by a disability which causes him to be unable to make decisions concerning where he lives and what services he needs and the management of his financial affairs and recommended a continuation of the orders.

1. MJG disputed that he needed to have a guardian to make decisions for him:

I can survive without supports - I arranged my own accommodation. I lived in flat - poor domestic skills but I survived. Forcing me to accept help is saying "for your own good".

1. In June 2018, the Tribunal was satisfied that MJG needed a guardian to make decisions about his accommodation and what services he received, and appointed the Public Advocate as guardian. Since then MJG has mainly been in prison. The delegation of Public Advocate's authority was held from June 2018 until 4 October 2019 by Dr Norman Chia and since then by Ms Megan Archer.
2. The Tribunal had been persuaded that MJG needed an administrator to apply for and manage a Disability Support Pension and apply for funding through the NDIS.
3. By report to the Tribunal dated 14 August 2019, Dr Chia recommended that the order of guardianship be continued:

to ensure that decisions are made to ensure funding of supports for [MJG] to facilitate his transition from the structured environment of prison to living in the community.

Services are a necessity that cannot be dispensed with, even if [MJG] rejects them. Guardianship and the NDIS provide the 'scaffolding' that will be there when [MJG] needs it. The alternative leaves [MJG] with nothing but his own resources, which is unfair and not necessarily in his best interests.

In recognition of the basis of [MJG's] rejection of support and to ameliorate it, guardianship could be here conceived as being in the background of [MJG's] life simply to ensure the continued architecture of the support system. It would not draw attention to itself.

1. In her report dated 10 December 2019, Ms Archer supported the reappointment of the Public Advocate as guardian. She stated:

the writer does not consider that [MJG] is able to independently make lifestyle choices that will support him to reside in the community. If a guardian is not reappointed, [MJG] will refuse to be a participant in the NDIS and the lack of supports will hinder his release from a correctional environment.

1. Counsel for MJG's parents made detailed submissions supporting the continuation of the guardianship and administration orders. On behalf of MJG's parents, Dr Brophy submitted:

1. The parents understood and accepted MJG's desire to have no contact with them. 2. The parents shared MJG's desire that he become independent, without the need for a guardian and administrator, as soon as that was able to be achieved.

1. A guardian and administrator could facilitate MJG's path to independence and, as far as practicable, in accordance with his preferences and wishes.

1. In the interim, MJG qualified for and needed a limited guardian and an administrator to enable his basic needs to be met and his interests protected. This included making practical and contractual arrangements that only a person with legal authority could make. 2. The need resulted from his long period of incarceration and his difficulty in establishing supports to meet his needs and interests. Even if temporary arrangements were to be made by an agency like ACSO[11], MJG would need a guardian and administrator to access longer term arrangements especially given his custodial history. 3. When released MJG may be subject to a Community Corrections Order. If that were the case, the order might have conditions attached such as MJG having suitable accommodation and services in place. Whether on a Community Corrections Order or not, the parents argued that both a guardian and administrator were necessary to put in place services, identify accommodation options, enter into contractual arrangements for MJG's chosen accommodation and ensure it is paid for. 4. The report of Dr Fraser 18 June 2018 demonstrated the necessary causal link i.e. that the need related to the disability which caused the lack of decision-making capacity. 5. The Tribunal had extensive expert reports that demonstrated the proposition that MJG needed the appointment of a guardian and administrator, and that the continuation of the current appointments was consistent with MJG's best interests. 6. Professionals consulted by the guardians about MJG's needs and welfare "strongly consider that the continuation of the guardianship and administration orders are in his best interests". 7. A guardian has statutory obligations to consult with MJG so that, as far as practicable, the guardian could facilitate his wishes and preferences, including about where he would live. They noted with support the guardian's stated intention to act as a resource for him and not to proactively impose decisions on him. 8. MJG's cognitive and psychological profile was very complex and the guardianship was needed to provide a legal framework for the delivery of service from professionals with relevant case expertise and to be available to assist MJG outside custody when he may wish to access such assistance.

1. MJG's resistance to accepting services had been explained by clinical evidence as resulting from MJG's belief that he can only become independent if he does not show weakness and accept services that label him as having a disability.

1. MJG wishes to make his own decisions. MJG wishes not to have a guardian and administrator.
2. He does not want to receive services that identify him as a person with a disability.
3. MJG says that he would rather be in jail than be forced to accept services that a guardian or administrator deemed to be necessary or in his best interests. He has threatened that if the orders are continued, he will reoffend to prove his point.
4. MJG's parents acknowledged MJG's wishes were to not have a guardian or administrator. Through counsel, they submitted that MJG's wishes are highly influenced by his belief that the absence of a guardian or administrator equates to the absence of a disability or was somehow the only way to become independent of his family.
5. They further submitted that while an important consideration for the Tribunal, MJG's wishes were not determinative.

IS IT IN MJG'S BEST INTERESTS TO HAVE A GUARDIAN AND/OR ADMINISTRATOR?

1. MJG rejected the best interests consideration and argued this proceeding was about his legal rights. He sought to rely on the decision of the Supreme Court PBU & NJE v Mental Health Tribunal[12] in support of his application that that the Tribunal should not apply a best interests test.
2. MJG cited York City Council[13] where a wife with a learning disability had the right to resume cohabitation with her sex-offending husband despite the concerns of others that to do so would be contrary to her best interests. He argued for self-determination.
3. The Public Advocate submitted that it was consistent with MJG's best interests to continue the limited guardianship order. The Public Advocate supported the proposition that, through limited guardianship and with appropriate consultation with MJG, appropriate supports could be put in place to be available when MJG was agreeable to accepting same and that this would be consistent with his best interests.
4. MJG's parents predicted that without a guardian and administrator, he would quickly become homeless, destitute and exposed to harm and exploitation causing him to decompensate and return to reoffending in order to return to jail.
5. Counsel noted that the continuation of the orders had the full support of the Public Advocate and professional experts who had provided assistance and advice to the guardian.
6. Counsel submitted that it was not the role of the guardian to force compliance with a decision made but rather to consult with MJG and, as far as possible, to provide him with options to facilitate his wishes and preferences.

1. MJG said that it was his right to decide things in his own way and that it would be discriminatory to require him to do things otherwise. MJG submitted that, as a result of the orders, he has been deprived of a range of reasonable outcomes (i.e. life without supports) that are available to others, by the very fact of his disability. He noted that some people legitimately choose to be homeless or to receive welfare and argued that it should be his choice.
2. MJG submitted that the limitation on his rights by the imposition of the orders was not reasonable, for legitimate purposes, nor proportionate to those purposes and so, therefore, unable to be justified under section 7(2) of the Charter.
3. MJG cited comments by his Honour Justice Bell in PBU & NJE about the significance of values:

The statutory intention is that views and preferences reflecting the values, life experiences and relationships, in the wider sense, not just medical but social and psychological will be included.

1. MJG said that his threats to stay in jail were a statement of his values.
2. In relation to the Charter, counsel for MJG's parents noted that when deciding whether to make an administration or guardianship order, the Tribunal is a public authority under the Charter[14]and therefore bound by section 38(1) of the Charter to act compatibly with human rights (subject to contrary law[15]).
3. Counsel also noted that the Tribunal is obliged by section 32(1) of the Charter to interpret all statutory provisions "in a way that is compatible with human rights" so far as possible to do so consistently with their purpose.
4. Counsel acknowledged that the appointment of a guardian would engage MJG's rights to equality before the law, right to privacy and possibly his freedom of movement and the continuation of an administrator order would engage MJG's rights to equality before the law and to privacy.
5. Addressing the equality rights[16] - recognition as a person before the law and equal protection of the law without discrimination - counsel acknowledged that as a person with a disability and a candidate for having a guardianship or administration order made, MJG was at risk of having an order made when another person without the attribute of disability would not be at such risk. Counsel submitted that the GAA is in place to provide necessary protection for and meet the special needs of people with disabilities and that the limitations imposed on MJG's equality rights by the making of orders, would be justified under section 7(2) of the Charter because they "are regarded as reasonable, objective, to legitimate purposes and proportionate to those purposes[17]".
6. In relation to the right to privacy[18] - counsel acknowledged the appointment of a guardian and administrator would interfere with MJG's autonomy, self-determination and opportunity to exercise legal capacity in relation to limited areas of his life, but would be justified on the basis of the proportionality test.
7. In relation to the right to freedom of movement[19] - counsel submitted that without an additional order made by the Tribunal[20] the guardian did not have the right to force compliance with any accommodation decision. Counsel submitted that the more appropriate process would be for the guardian to identify suitable options and present them to MJG for his consideration and, subject to MJG's exercise of choice, to then take appropriate steps to secure the accommodation. If a limitation were to be imposed, then MJG's right to freedom of movement would be subject to such reasonable limitations as can be demonstrably justified in accord with section 7(2) of the Charter.
8. Section 10 of the Charter deals with protection from torture and cruel, inhumane or degrading treatment. Counsel for MJG's parents referenced His Honour Justice Bell in the matter of Kracke[21] where he noted that the golden thread running through section 10 is protection "of the right of the individual to personal dignity and integrity". Counsel submitted that the rights under section 10 would not be engaged in the appointment of a limited guardian and administrator for MJG but if the rights are engaged, the rights are subject to such reasonable limitations as can be demonstrably justified in accord with section 7(2) of the Charter.

SECTION 7(2) OF THE CHARTER - THE PROPORTIONALITY TEST

1. The purpose of the limitation[22] on MJG's rights through the appointment of a guardian and administrator is to promote the current and future wellbeing of MJG in circumstances where he has a significant disability and, without substitute decision-making in relation to matters such as accommodation and the provision of services, he is predicted to decompensate and decline into homelessness and reoffending. 2. MJG has expressed goals of independence including: having a job, a driver's licence, a girlfriend and being able to live independently in the community. The purpose of the limitation is to enable MJG to progress towards the goals that he cannot reach without the involvement of a guardian and administrator. The limitation provides the best opportunity for MJG to obtain authentic independence.

1. The limitation on the exercise of MJG's autonomy is limited by the order and the obligations on the guardian and administrator, under the GAA, to consult and to give effect to his wishes as far as possible, to assist him to become capable.

1. There is a rational connection between (a) the goal of protecting MJG from the currently very serious negative effects of his disability and promoting his wellbeing with assistance directed to development of skills and emotional regulation necessary to achieve greater authentic independence and (b) continuing the limited guardianship and administration orders.[23] 2. There are no less restrictive alternatives reasonably available for MJG than the appointment of a limited guardian and an administrator.[24] 3. The limitation imposed by the continuation of a limited guardianship and plenary administration order would be proportionate and demonstrably justified.

1. I was satisfied by the reports of Dr Eisenmajer, Dr Hare, Dr Ambrose and Dr Fraser that MJG is a person whose intellect is impaired by ASD.
2. In relation to the question of capacity, my own observations of MJG's limitations were reinforced and explained by the reports of Dr Ambrose, Dr Fraser and Ms Oswald-Jones. Those reports were written for the Tribunal's consideration of applications for the appointment of a guardian and administrator and were sufficiently current. I observed what was described as MJG's rigidity of thought in his determination to try and prove a point even where to do so would be to harm himself. I recognised in this an inability to weigh up pros and cons of options relevant to decisions needing to be made. I was satisfied that MJG lacked capacity to make decisions about what services he receives, where he lives and the management of his finances.
3. I was not persuaded by MJG's arguments that his thinking and decision-making was considered and an expression of his values. I recognised in MJG "superior verbal abilities"[25] including his ability to articulate the legal framework. MJG acknowledged some intellectual deficits but submitted they resulted from deprivation of opportunity and emotional abuse. He also acknowledged that "autistics have a weakness for not seeing past logic". It was clear to me that what MJG sees as logic others may see as rigidity of thought. Without rejecting the possibility that he may, in some instances, act logically, I saw evidence of inability to use or weigh the information. I considered that logical thought would include a consideration of arguments for and against whereas a fixed decision without consideration of the consequences was an inability to use or weigh information and an indication of lack of decision-making capacity.
4. I was satisfied that there is a causal link between MJG's disability - ASD - and his inability to make reasonable decisions for himself. I accept that reasonable is a subjective construct. Making a reasonable decision requires an understanding of consequences and using or weighing the information as part of the process of decision-making. I accept that a lack of decision-making capacity is more than making a decision that others consider to be unwise. I was influenced more by what I saw as the lack of consideration of the information - that is the inability to use or weigh information - than the consequences of decisions made.
5. In relation to need, I was satisfied that in order to achieve his stated goal of independence, MJG would require support in developing skills to live in the community (with supports) and in interacting with others. He may also require support in developing skills to better manage his frustration which may be expressed as anger when confronted with a task or emotion he is overwhelmed by.
6. I noted that for much of the time since the orders of guardianship and administration had been made MJG has been held on remand and, as a consequence, not in a position to consider the framework being developed by the guardian. In late 2019, when MJG was released from jail, he rejected engagement with the guardian and organised his own accommodation. The guardian did not seek to force him into alternate accommodation. The suitability and sustainability of the accommodation arrangements were not tested, in reality, because MJG allegedly breached the intervention orders and was returned to jail within days.
7. I also noted that, if reappointed, the guardian would work with services to identify suitable options for the consideration of MJG. As expressed by the guardian, the role of the guardian would be to engage those services to build the framework and to consult with MJG. The guardians submitted that by working in that way, they would be acting in the least restrictive way that was practicable in the circumstances. I was satisfied that without the legal authority of guardianship, it would not be possible for anyone to engage with those services about MJG and his needs and wishes. I was persuaded by the submissions of counsel for MJG's parents that this would result in decompensation and consequent significant risk to himself and to others. I was also persuaded that these risks were likely to be greater given MJG's period of incarceration. I was satisfied that without an order of administration, no person could engage with Centrelink or manage his entitlements for his benefit. If left to MJG, he would decline to pay for services as a means of forcing disengagement. In turn, disengagement would lead to high risk to MJG and to others.
8. I note that the internet is full of "how to..." videos. I accept that there would be many things that MJG could learn from such videos. I was not persuaded that MJG could address deficits in this decision-making capacity through instructional videos or unsupported opportunities to learn through trial and error. I accept that, with an appropriate support structure in place and the presentation to him of options, MJG could so learn.
9. In consideration of the legislative principles, I have considered section 4(2) of the GAA as I must. I am satisfied that the limited guardianship order and the method of decision-making with MJG as foreshadowed by the Public Advocate guardians together with the administration order are the least restrictive that they can be.
10. I accept that a continuation of the orders would be contrary to MJG's stated wishes. However, I was persuaded that currently, if MJG was left to make his own decisions, he would place himself, and possibly others, at great risk. That outcome would be contrary to his best interests which I am also bound to uphold. I note that in considering MJG's wishes, there has been an acknowledgement by the guardian that MJG would be involved in decision-making wherever that was possible.
11. I accept that if I make a guardianship or administration order, I must, in addition to consideration of matters within the GAA, give proper consideration to all relevant human rights and act compatibly with human rights[26]. I accept that when deciding whether or not to make a guardianship or administration order, the Tribunal is a public authority under the Charter[27] and bound by section 38(1) of the Charter to act compatibly with human rights (subject to contrary law[28]).
12. I accept that MJG's rights[29] under the Charter are engaged and orders of guardianship and/or administration would equate to a limitation which would not be trivial.
13. However, I was satisfied that the appointment of a limited guardian and administrator would be:

1. lawful - because I was satisfied that MJG is a person with a disability which causes him to lack the capacity to make reasonable decisions about some aspects of his life; that there is a need for some decisions to be made to promote his best interests and currently no less restrictive way for those decisions to be made; 2. rationally connected to a purpose that is legitimate and sufficiently pressing - I was satisfied that there is a rational connection between the continuation of the orders of guardianship and administration and the goals of protecting MJG from the serious negative effects of his disability and promoting his wellbeing with assistance directed at the development of skills and emotional regulation necessary for greater authentic independence. I was satisfied that the limitation is sufficiently targeted at the purpose of the limitation;

1. the least restrictive option, reasonably available, that will achieve that purpose - I accepted that the limitation on MJG's autonomy, independence and legal capacity would extend only so far as reasonably necessary to achieve the objectives of protection and enhanced, authentic independence;

1. demonstrably justified; 2. consistent with the objectives and provisions of the GAA; and 3. supported by evidence before the Tribunal.
2. While it was an option to not appoint a limited guardian, I was not satisfied that was a reasonable alternative. I was persuaded that if decisions about services, including those to be available to him post release were entirely left to him, MJG would, when faced with challenges, most likely decompensate and reoffend - as has been the case twice within the last 12 months.

[1] Dr Rebecca Fraser, lead consultant psychiatrist, report dated 31 May 2018.

[2] Made under the Mental Health Act 2014.

[3] Guardianship and Administration Act 1986 ('GAA') ss 4(2)(a), 22(2)(a) and 46(2)(a).

[4] Ibid ss 4(2)(b), 22(3) and 46(3).

[5] Ibid ss 4(2)(c), 22(2)(ab) and 46(2)(b).

[6] Ibid s 63(1).

[7] PJB v Melbourne Health [2001] VSC 327 at [125] (Patrick's case).

[8] Dr J Hare, Mont Albert Medical Clinic, report dated 3 May 2018.

[9] Dr A Livingstone, report dated 29 May 2018, Reason for Referral, p2 (referral from Dr R Fraser, consultant psychiatrist, Eastern Health).

[10] Dr N Chia and Ms M Archer, both of the Office of the Public Advocate.

[11] Australian Community Support Organisation.

[12] [2018] VSC 564.

[13] [2013] EWCA Civ 478; [2014] 2 WLR 1.

[14] Charter of Human Rights and Responsibilities Act 2006 ('Charter') s 4(1)(b) and (j).

[15] Ibid s 38(2).

[16] Ibid s 8(1) and (3).

[17] Lifestyle Communities Ltd (No 3) [2009] VCAT 1869 [289].

[18] Charter s 3(a).

[19] Ibid s 12.

[20] GAA s 26.

[21] Kracke v Mental Health Review Board [2009] VCAT 646 at [547].

[22] Charter s 7(2)(b).

[23] Charter s 7(2)(d).

[24] Charter s 7(2)(e) Charter and GAA s 4(2).

[25] Dr M Ambrose, report dated 31 May 2018.

[26] PJB v Melbourne Health [2001] VSC 327 at [125] (Patrick's case).

[27] Charter s 4(1)(b) and (j).

[28] Ibid s 38(2).

[29] Ibid ss 13(a), 8(1) and (3) and 12.