MJG (Guardianship) [2023] VCAT 1234

Orders made under the Victorian Civil and Administrative Tribunal Act 1998 (Vic) ('VCAT Act')

MJG requested that the matter which was heard on 21 March 2022 be reheard, on the basis that he was unable to attend.

1. VCAT is satisfied that MJG had a reasonable excuse for not attending at the hearing, and orders under section 120 of the VCAT Act that the hearing (which was a hearing to reassess the guardianship and administration order) is to proceed (to be reheard) today.

The Public Advocate applied for orders under section 146(4)(b) for a direction that the report of the Public Advocate dated 9 June 2023 not be disclosed to parties.

1. VCAT is satisfied that access to the written report may cause harm to the health and safety of a person at this time and directs that the report of the Public Advocate dated 9 June 2023 is not to be released to any party without VCAT's permission. VCAT directs that the Public Advocate is to provide a summary of the report at the hearing today in order to ensure a fair hearing.

Orders made under the Guardianship and Administration Act 2019 (Vic) ('GA Act')

1. The Public Advocate, Office of the Public Advocate 1/204 Lygon St, CARLTON VIC 3053 is appointed guardian for MJG.
2. The guardian has power to make decisions about these personal matters:
   • - information sharing to facilitate diversion from, progress within and transition from the criminal justice system, including between the Courts, correctional services, law enforcement and MJG's legal representative
   • - where MJG lives
   • - whether any services are needed and if so which ones
   • - appointment and termination of legal services in connection with criminal proceedings.
3. Guardians must comply with the GA Act, which outlines their powers and duties.
4. Suzanne Lyttleton, Suzanne Lyttleton Lawyers Pty Ltd PO BOX 2181, ST KILDA WEST VIC 3182, is appointed administrator for MJG.
5. Suzanne Lyttleton has power to make decisions about all financial matters.
6. The administrator has powers given under the GA Act section:
   • - 46(1)
   • - 52
7. Administrators must comply with the GA Act, which outlines their powers and duties.
8. The administrators must continue to submit an annual Account by Administrator (ABA) for each financial year by no later than 30 September each year to be examined by State Trustees Limited, who may charge the estate an approved examination fee.
9. This order applies until VCAT makes another order.
10. Anyone can apply for VCAT to reassess this order at any time.
11. VCAT is due to reassess this guardianship and this administration order by 31 December 2024.
12. VCAT will automatically schedule a hearing and notify the parties and interested persons when the reassessment hearing can be scheduled. Unless VCAT makes a new order that cancels (revokes) this order, this order does not expire, even if a reassessment does not take place until after the above date.

The Charter of Human Rights and Responsibilities Act 2006 ('the Charter')

VCAT has considered the relevant human rights as set out in the Charter. The following rights are engaged:

• - right to privacy;
• - right to freedom of movement;
• - right to equality before the law;

VCAT is satisfied that the limits imposed by the guardianship and administration orders are reasonable and justified in accordance with s 7(2) of the Charter.

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 2019 that identifies or could lead to the identification of a party to the proceeding.**

1. In these written reasons for decision, I refer to the person who is the subject of the application as MJG. The Victorian Civil and Administrative Tribunal (VCAT) has given the person that anonymised name to protect his identity and the confidentiality of his personal information. I understand from what MJG said at the hearing that he prefers to be called by his own name. In the hearing everyone used the correct name. For these written reasons, however, because of Clause 37 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) ('VCAT Act'), I need to use the anonymised name.
2. There has been a series of guardianship and administration orders about MJG in place since 2018. Guardianship and administration orders must be regularly reassessed, and on reassessment, VCAT must make a fresh decision about whether the criteria for the making of an order, or orders, are satisfied. If the criteria for the making of an order are satisfied, then VCAT makes a new order. Section 30(2)(a) of the Guardianship and Administration Act 2019 (Vic) ('the Act') says VCAT may only appoint a guardian or administrator for a person if satisfied that because of the person's disability, the person does not have decision-making capacity in relation to the personal or the financial matters which are the subject of the application.
3. On 21 March 2022, there was a hearing to reassess the administration and guardianship orders that had been made on 26 February 2020. MJG did not attend that hearing. VCAT made orders appointing the Public Advocate as guardian for MJG, with power to make decisions about certain personal matters, and also appointed Suzanne Lyttleton as administrator, with power to make decisions about financial matters.
4. MJG asked for the matter to be reheard, because he had not attended the hearing, and he asserted that he was entitled to an opportunity to be heard. Under section 120 of the VCAT Act, a further hearing was scheduled, on the basis that MJG had a reasonable excuse for not having attended the hearing on 21 March 2022. After extensions of time and adjournments in order to ensure that MJG had time to seek legal advice, give instructions and prepare, the next hearing was on 8 August 2023. Before that hearing began, MJG asserted that the Senior Member allocated to the hearing was biased, and should not continue to hear the matter. The Senior Member declared that he did not hold any bias, but that he considered it appropriate, given that the hearing had not started, and the matter was not part heard, to refer the matter to be allocated to another Member of the Tribunal.
5. On 24 October 2023 the matter came before me, by videoconference.

1. At the hearing I formally granted the application for the matter to be reheard under section 120, and then, with the consent of all present, proceeded to hear the application for a guardianship order and an administration order. This was a VCAT initiated application to reassess the orders made on 26 February 2020.
2. The Public Advocate also applied for orders under section 146(4)(b) restricting access to the VCAT file, and in particular, the report of the Public Advocate.
3. MJG was present by videoconference at the hearing, until shortly before the hearing ended. His connection to the videoconference link was disrupted at the end, after a period during which he appeared to be experiencing extreme distress. The Public Advocate contacted the correctional facility from where MJG had been connected, and staff there explained that he was unable to return to the hearing.
4. MJG was not represented at the hearing. He had previously been represented by Mental Health Legal Centre, and had terminated their services. At an earlier time he was represented by Victoria Legal Aid. MJG explained at the hearing that Victoria Legal Aid were not available to represent him at this time, and nor were other legal services he had considered.
5. Also present at the hearing were the guardian and the administrator appointed under the 26 February 2020 orders; a delegate of the Public Advocate and Suzanne Lyttleton. A legal officer from the Office of the Public Advocate was present, as was a colleague of the administrator.
6. I heard from the delegate of the Public Advocate about why she sought the order preventing access to documents. In written and oral submissions, the Public Advocate said that MJG's opposition to the involvement of the Public Advocate in his life was persistent and complete, and that his active disruption and frustration of decisions made by the guardian had significant consequences for his wellbeing and exposed him to serious harm. It would seriously undermine the wellbeing of MJG and risk serious harm to him for all of the fine detail to be provided to him or other parties at this time, said the Public Advocate. I accepted those submissions, and made the order under section 146(4)(b) of the VCAT Act, having first heard from MJG who was strongly opposed to that order. In order to ensure as much fairness as possible under those circumstances, I asked the delegate of the Public Advocate to outline the essence of the report orally at the hearing, and she did so.
7. MJG made lengthy and strongly expressed submissions at the hearing about the validity of orders made on 21 June 2018 and 26 February 2020. He said that he wanted to get rid of the guardian. He said he had proven beyond doubt that they would never be able to get him out of prison, so there was no point in their continued involvement in his life. He also argued that the decision of Kracke v Mental Health Review Board & Ors[1] applied ('Kracke's case'), and that this meant that the 2018 and 2020 decisions were void. MJG asked, many times, how he could apply for vindication under Kracke's case. He was angry and distressed that, he said, the prison officers had not allowed him to appeal the decisions.

1. A person (including VCAT) exercising powers functions and duties under the Act must have regard to the principles set out in section 8 of the Act. In summary, they are:
   1. a person with a disability should be given practicable and appropriate support to make and participate in decisions, express their will and preferences and develop their decision-making capacity;
   2. the will and preferences of a person with a disability should direct decisions made for the person, as far as practicable; and
   3. powers, functions and duties must be used in the way which is the least restrictive of the ability of the person with a disability to decide and act as is possible in the circumstances.

1. When appointing a guardian or an administration, VCAT must apply the principles in section 8, including that the person's will and preferences should direct the decision 'as far as practicable'.
2. The person's will and preferences are relevant also when VCAT decides whether a person needs a guardian or an administrator (section 31) and whether a proposed guardian or administrator is a suitable person to be appointed (section 32(3)(a)).
3. MJG expressed his will and preferences with some force at the hearing. He did not want a guardian. While he did not express a view about whether or not he wanted an administrator, I understood him to be saying that his firm view was that no orders should be in place.

1. Section 30(2)(a) of the Act says VCAT may only appoint a guardian or an administrator for a person if satisfied that because of the person's disability, the person does not have decision-making capacity in relation to the personal or financial matters which are the subject of the application.
2. MJG was diagnosed at a young age with Autism Spectrum Disorder ('ASD'). As I understand it, MJG does not disagree that he has ASD, though he does vehemently disagree that this is a disability. I understand that MJG considers neurodiversity to be a circumstance shared by others in the community, and not one that should attract the label of 'disability'.
3. I understand the point that MJG is making, though note that, for the purposes of deciding whether or not the criteria for the making of an administration or guardianship order are met, the definition of disability in section 3 of the GA Act includes neurological impairment, and this encompasses ASD.
4. There have been many reports detailing various and largely consistent opinions as to how ASD affects MJG's decision making capacity. In reasons for decision dated 28 February 2020, Senior Member Hoysted summarised many of these reports.[2] I have considered all of those reports, though I will not restate the contents here. There have been reports prepared since that time. A report dated 6 September 2022 from Dr Laura Anderson, Psychologist and Clinical Neuropsychologist and Manager of Corrections Victoria's Prison Disability Support Initiative, records that she had been involved in MJG's care since 2018. She wrote that:

I am very familiar with his complex clinical presentation, which is largely characterised by Autism Spectrum Disorder...

As a result of his Autism Spectrum Disorder, [MJG] presents with extreme cognitive rigidity, deficient problem solving and a lack of independent functioning skills. Additionally he demonstrates extreme difficulty regulating and managing emotional distress, and as a result has been in a state of chronic elevated psychological distress for several years, which further impedes his decision-making. There are a multitude of examples of [MJG's] behaviour that I believe demonstrate the functional impact of his psychological and cognitive deficits that significantly impede his decision-making capacity...

...In my clinical opinion, formed from my ongoing involvement with [MJG] over a number of years, [MJG's] rigid and fixed thought patterns combined with his ongoing lack of capacity to effectively regulate his emotional arousal undermines his functional cognitive capacity to the extent that I hold significant concerns for his fitness to engage in legal processes. Over the past four years that [MJG] has been intermittently accommodated within the Victorian Adult prison system, I have observed [MJG's] emotional distress increase and his functional capacity continue to deteriorate. I hold grave concerns for the long-term implications of this cycle of behaviour for both [MJG's] safety and welfare.

1. A report by Georgia Morsley, Occupational Therapist, dated 1 September 2022, detailed three formal assessment tools that were applied to measure functional capacity. In summary, the report recorded that MJG wanted to develop independent living skills, and transition to living in the community. The report noted that MJG has strong verbal skills, and I add here that this was evident in the hearing before me. The report detailed many other areas in which MJG's functional capacity was significantly more limited, and recorded that MJG had extreme functional impairment and very high support needs. It stated that:

...Each period of incarceration and failed attempt at transitioning to living in the community has highlighted [MJG's] lack of insight into his disability and support needs. As his behaviour has continued to increase in severity and intensity, his opportunities for independence and autonomy continued to reduce.

1. The guardian said that, based on the experience of her interactions with MJG over the time of the order, it was her view that MJG was not able to understand, retain, use or weigh information to the extent necessary to make decisions.
2. While I acknowledge that MJG does not consider ASD to be a disability, and I understand his reasoning about that, I am satisfied that within the meaning of the Act MJG does have a disability, and that because of that he does not have decision-making capacity for the personal and financial matters that are the subject of this application.

Is there a need for a guardian and/or an administrator?

1. Section 30(2)(b) of the Act says VCAT may only appoint a guardian or an administrator for a person if satisfied that the person needs a guardian or administrator.
2. The issue of whether or not MJG needs a guardian or an administrator is complicated by his strong opposition to having such orders in place and his unwillingness to communicate with a guardian or administrator, and by the fact that MJG is currently in custody. I am satisfied that at this time there is a need for both a guardian and an administrator, for the following reasons.
3. Since 2018, MJG has been in custody for extended periods of time. He is intermittently released from custody, but soon returns. He is currently living in circumstances of extreme restriction and restraint, and also extreme distress to himself. He is rotated between correctional facilities because his behaviour is so disturbing and distressing that corrections officers need breaks from working with him. In the short breaks between custodial sentences, MJG is demonstrably unable to make decisions about where he will live or what services he will need. His own attempts to find somewhere to stay have not worked for him. He reoffends so that he will be returned to prison. Although MJG does not want this, the structured support of a guardian to consider issues about accommodation and services appears to be essential. MJG has said that he wants to live in the community, yet this has apparently not been possible. At this time, according to the evidence given at the hearing by the guardian and the reports and other documents on file, it appears that it will not be possible for MJG to live in the community unless there is a plan about where he will live, and what supports and services he may need and want. It is necessary for the guardian to have this role, for the time being. It is also the case that a guardian is needed to ensure that MJG has consistent legal representation for his criminal proceedings. Without this role in place, MJG has not been able to maintain consistent legal representation. I was satisfied that there was a need for a guardian.
4. Although MJG is currently in prison, and so there are no day-to-day financial decisions to be made, there are financial decisions about legal representation. Also, if MJG is to be released from custody in the short to medium term future, there will need to be decisions made about payment for accommodation and services. I was satisfied that there was a need for an administration order.
5. I have considered MJG's will and preferences - that is, that he emphatically does not want a guardian or administrator. I was unable to give effect to those wishes because I was satisfied that there was a high risk of serious harm if there were no orders in place. The current circumstances MJG is in, of highly restrictive incarceration, isolation and restraint, are severely compromising of MJG's wellbeing and his right to be afforded dignity and protection from degradation. Dr Anderson's report, among others, indicated the concerning observation that MJG's emotional distress was increasing, and his functional capacity was deteriorating.

Who should be the guardian and who should be the administrator?

1. It is clear from reports and correspondence on the file that MJG has expressed a strong and clear wish to not have his family involved in his affairs and so it was not appropriate for me to consider the appointment of a family member.
2. I was satisfied (as required by section 33 of the Act) that no person other than the Public Advocate fulfils the requirements of section 32 for appointment as guardian for MJG. For similar reasons, I was satisfied that Suzanne Lyttleton fulfils the requirements for appointment as an administrator.

The Charter of Human Rights and Responsibilities Act 2006 ('the Charter')

1. I have considered the relevant human rights as set out in the Charter. The following rights are engaged by the orders I am making:

- right to privacy;

- right to freedom of movement; and

- right to equality before the law.

1. I was satisfied that the limits imposed by the guardianship and administration orders are reasonable and justified in accordance with s 7(2) of the Charter.
2. For the reasons set out above, and in particular at paragraph 28, I was satisfied that the orders appointing a guardian and an administrator do limit MJG's rights in some respects, but that these limitations were demonstrably justified. Further, the orders potentially protect his rights in other respects. For example, MJG does not want a guardian in any way involved in decisions about accommodation or services and so his right to privacy is limited by the order. On the other hand, MJG's rights are currently limited by the highly restrictive circumstances in which he lives in custodial detention. Efforts to seek a change to these circumstances and to ensure that to the extent possible services and supports including legal representation are available to MJG, are potentially protective of MJG's right to be protected from treatment that is degrading.
3. To MJG's submission about Kracke's case, I note that what was before me at the hearing was not an appeal of the decisions made in 2018 or 2020. It was not open to me to reconsider or review those orders. In any case, those orders are no longer in effect.[3]

1. VCAT must reassess guardianship and administration orders within each 3-year period after making the order, unless VCAT orders otherwise.[4] These orders will be reassessed after one year, as MJG's circumstances are dynamic and the need for orders may be different after a year.

[1] Kracke v Mental Health Review Board & Ors [2009] VCAT 646.

[2] MJG [2020] VCAT 250.

1. [3] I note, even though it is neither a matter for me to determine nor relevant to this hearing, that with respect to the 2018 and 2020 orders, while there were some adjournments including at MJG's request so he had opportunities to seek legal advice, it does not appear on the face of the file that there was undue delay in scheduling reassessment hearings that was caused by administrative oversight.

[4] Guardianship and Administration Act 2019 (Vic) section 159.