Z [2025] WASAT 58 (18 June 2025)

Criminal Law (Mental Impairment) Act 2023 (WA), s 73(1)(b), s 105(1)

Criminal Law (Mentally Impaired Accused) Act 1996 (WA), (repealed)

Guardianship and Administration Act 1990 (WA), s 4(2), s 4(3)(a), s 4(3)(b), s 4(4), s 4(5), s 4(6), s 4(7), s 40(1)(a), s 43, s 43(1)(b), s 43(2), s 43(3)(d), s 44, s 46, s 77(1)(a), s 84(a), s 110ZD(4)(d), Pt 2

Marriage Act 1961 (C'th)

Mental Health Act 2014 (WA)

State Administrative Tribunal Act 2004 (WA), s 9(a), s 9(b), s 9(c)

1. Z is a man who was born overseas and who has lived in Western Australia for many years. Z has supportive family members including two brothers and a niece. Z lives with an established diagnosis of schizophrenia and is currently under the care and management of the applicant, State Community Forensic Mental Health (who I will refer to as 'the applicant').
2. The applicant seeks the appointment of a guardian for Z, pursuant to the Guardianship and Administration Act 1990 (WA)[1] (GA Act).
3. Z already has administration orders. The Office of the Public Trustee (PT) has acted as plenary financial administrator for Z since 2016.
4. A hearing took place on 2 April 2025, following which I reserved my decision.
5. For the reasons set out below, I am satisfied and I find that Z is in need of a limited guardian to make decisions around accommodation and services. Z's brother B is appointed as limited guardian, with the order to be reviewed by 26 April 2026.

1. In an application lodged on 20 December 2024, the applicant wrote that Z displayed impaired insight and lacked capacity to make safe decisions about his wellbeing and future planning including:

... missing medical appointments, consumption of expired food, contravening legal orders (entering exclusion zones), and entering licensed premises. Recent events indicate significant impairment in decision making around personal matters which could contribute to loss of tenancy, exploitation of his residential status by others (obtaining marital visa), potential financial exploitation ...

... it has come to light that [Z] is planning to remarry while he is still legally married ...

1. Z's treating psychiatrist at the time of the application, Dr 1, provided a letter which I will summarise. The letter described Z as a vulnerable man who was at risk of being exploited; it was believed that either a friend or a NDIS support worker had arranged nightly phone calls between Z and a woman overseas. Z was thought to be enthusiastic to marry the woman. The letter expressed concern about Z's risk of exploitation, including risk of financial exploitation. There was also concern about risk to any future wife who would be unaware of Z's forensic history. Z was subject to a leave of absence order pursuant to the Criminal Law (Mental Impairment) Act 2023 (WA). This was because Z had previously been found unfit to stand trial in relation to serious violent offences involving domestic violence.

Hearings before a Senior Member on 2 January 2025 and 9 January 2025

1. On 2 January 2025 a Senior Member of this Tribunal conducted an urgent hearing, and received evidence from Z, members of his treating team including a social worker, psychiatric registrar, psychiatrist and also from a NDIS support coordinator. The applicant gave further evidence about Z's custody and leave of absence orders, stating their understanding that Z now had a limiting term set for his custody order, that Z was due for review by the Mentally Impaired Review Tribunal in April 2025, and that it was likely that Z would be released from the order at that time.[2]
2. The decision of this Tribunal was reserved.
3. Following the urgent hearing on 2 January 2025 this Tribunal became aware of a decision of the Supreme Court that had been published about Z. I have not included the citation because these reasons have been de­identified, as is the usual practice when publishing decisions under the GA Act, which is a protective jurisdiction.
4. That decision clarified that the Supreme Court had set a limiting term for Z's custody order and that the custody order remained in place until otherwise ordered by the Supreme Court. This meant that the need for the matter to be determined urgently had fallen away.
5. On 9 January 2025 the Senior Member adjourned the application for the appointment of a guardian and referred the application to the Office of the Public Advocate (OPA) for an investigation and report about whether Z was a person for whom a guardianship order could be made, and if so, whether Z was in need of a guardianship order in the context of the concerns raised in the application made by applicant, or for other reasons. If a guardianship order was to be made, who should be appointed and what functions should be vested in the order, and also to obtain Z's views and wishes.
6. The Senior Member was unavailable on 2 April 2025 and I was available. Given that no substantive decision had yet been made, and the Tribunal now had the assistance of an investigation report, it was appropriate that I heard the matter in order to ensure the matter was resolved efficiently, in accordance with the main objectives of the Tribunal.[3]

1. Section 43 of the GA Act provides that I can only appoint a guardian if satisfied that a person has attained the age of 18 years and is:

(a) incapable of looking after his own health and safety; or

(b) unable to make reasonable judgments in respect of matters relating to his person; or

(c) in need of oversight, care or control in the interests of his own health and safety or for the protection of others. [4]

1. In addition, I must be satisfied there is a need for a guardian and if so, make a decision about who should be appointed, the functions vested in a limited guardian and the length of any orders made.[5]
2. Part 2 of the GA Act sets out the mandatory principles to be observed when dealing with applications for guardianship. The primary concern is the best interests of the person who is the subject of the application.[6]
3. The principles also include that every person is presumed to be capable of looking after their own health and safety[7] and making reasonable judgements about matters relating to their person[8] until the contrary is proved to the satisfaction of the Tribunal. Even if a person is found to lack capacity, the appointment of a guardian is not automatic. That is because I must be satisfied that the person is actually in need of a guardian and that the person's needs cannot be met in a less restrictive way.[9] A plenary guardian cannot be appointed if a limited order will meet the person's needs.[10] Any guardianship order has to be made in the least restrictive terms possible.[11] Also, I must try to find out the views and wishes of the person.[12]

1. Having regard to the application, relevant law and mandatory principles, the questions to be answered in this application are:

(1) Does Z lack the capacity to make personal decisions?

(2) Does Z need a guardian or is there a less restrictive way to meet his needs?

(3) If Z needs a guardian, who should the guardian be?

(4) What decisions should Z's guardian be making, and for how long?

1. I have considered the written evidence filed in these proceedings, as well as the transcripts of hearings before a Senior Member on 2 January 2025 and 9 January 2025. I am grateful for reports received from various medical and allied health professionals, a community corrections officer, and a principal investigator advocate from OPA.
2. I do not propose to reproduce or summarise all reports received. My intention is to only summarise the evidence to the extent required in order to illustrate my rationale for the findings I have made.

1. In a letter dated 10 December 2024, Dr 1 set out a number of concerns which I summarised in para [6]. Dr 1 also wrote that Z had a diagnosis of schizophrenia and had received treatment with antipsychotic medications for some years, but remained impaired, presenting as intellectually modest and with a poor understanding of his legal order.
2. Dr 1 attended the hearing on 2 January 2025 and explained that she had not had the opportunity to conduct a recent assessment of Z's decision-making capacity due to the intervening Christmas period and also the unavailability of an interpreter. Dr 1 was able to base her assessment on her long-term knowledge of Z, Z's history and information received from Z's community corrections officer.[13] Dr 1 continued to hold significant concerns about Z's situation, and added that there was now a concern that a former support worker had submitted a marriage visa application on Z's behalf, and that there had been reports of conversations about a pre-nuptial agreement.[14]
3. Dr 1 gave evidence that whilst Z was taking his medication and presenting as mentally 'well', he had significant cognitive deficits as a result of schizophrenia,[15] including difficulties assessing the pros and cons of decisions and processing and interpreting information in order to make safe decisions.[16] However in relation to medical decision making, Dr 1 gave evidence that Z could probably consent to treatment, noting that Z had been having cataract surgeries without a guardian. Dr 1 was not aware of any concerns about Z's ability to consent to medical treatment.[17]

1. In a medical report dated 23 December 24, Dr 2 had known Z for 10 months and said that Z had a longstanding and established diagnosis of schizophrenia, with symptoms being noticed since 2014. Dr 2 wrote that Z had a severe cognitive impairment and significant limitations in making executive decisions, especially around finances, and was incapable of making legal and personal decisions including decisions about medical treatment, services or accommodation. Dr 2 wrote that Z did not have insight into his mental illness, did not understand limitations in his executive functioning and that Z believed he would function just fine without his current supports.
2. Dr 2 also attended the hearing on 2 January 2025 but did not give evidence, other than to say that she worked in the same team as Dr 1, so everything she had to say had been said by Dr 1.

1. In a medical report dated 27 March 25, Z's current treating psychiatrist Dr 3 said she had known Z for 7 years and reviewed him once in the previous 12 months. Z's current diagnosis of paranoid schizophrenia was confirmed in 2018, after Z presented with symptoms since approximately 2016. Regarding decision-making, Dr 3 said Z was incapable of making legal as well as personal decisions including medical treatment and procedures because Z '... struggles to retain and process information, he would have trouble understanding the factors involved in medical treatment and procedures ...'. Z was also deemed to be incapable of making accommodation decisions and would 'struggle to identify areas of weakness where he would require assistance ... if living independently, I would have concerns that he would not seek out appropriate supports and would come to harm'. Z was also deemed to be incapable of making decisions about services and '... would struggle to identify his area of needs and engage appropriate services'.

1. In a neuropsychology assessment report conducted in 2023 (not prepared for this Tribunal), Dr 4 wrote that Z had a diagnosis of late­onset schizophrenia, previously thought to be Dementia with Lewy Bodies. Dr 4 had conducted an assessment and concluded that Z continued to be cognitively and functionally impaired, was vulnerable to fluctuations in cognition due to medical and psychiatric factors (schizophrenia) and would continue to require a high level of support.

1. Some years ago, the Supreme Court of Western Australia found Z unfit to stand trial in relation to serious violent offences involving domestic violence. A custody order was made in respect of Z under the Criminal Law (Mentally Impaired Accused) Act 1996 (WA). That Act was replaced by the Criminal Law (Mental Impairment) Act 2023 (WA) which established a new framework for dealing with mentally impaired accused persons in Western Australia. The Criminal Law (Mental Impairment) Act 2023 (WA) came into effect on 1 September 2024.
2. The new framework required Z to be re-sentenced to a limiting term order. That has already happened. There is currently an application on foot in the Supreme Court seeking an extended custody order for Z which is scheduled for hearing later this year.[18] That means that Z remains subject to a custody order until further decision of the Supreme Court.
3. Z is currently subject to a leave of absence order. I have seen a copy of the leave of absence order made by the Mental Impairment Review Tribunal on 3 October 2024.[19] The order authorises Z to be absent from his place of custody on the following terms and conditions:
   1. To comply with all instructions from the treating psychiatrist and/or medical practitioner and/or mental health team, including taking appropriate medications as directed.
   2. To comply with the lawful directions of the supervising officer.
   3. To comply with the requirements of any Violence Restraining Order.
   4. To reside at an address approved by the Supervising Officer and not to change the address without the prior approval of Supervising Officer.
   5. To abstain from using alcohol and limited drugs.
   6. To attend for random urinalysis for all illicit substances as directed by the Supervising Officer and provide a valid sample.
   7. Not to enter licensed premises except cafes, restaurants and sporting venues or grocery stores which may have a liquor licence, but no purchase of liquor permitted at any venue.
   8. To submit to random breath testing as requested by Police.
   9. To adhere to the Statement of Protective Conditions dated 26 October 2021 (or any subsequent Statement of Protective Conditions).
   10. Not to leave the State of Western Australia except with, and in accordance with, the permission of the Tribunal.
   11. Section 79(2) applies to this order - [Z] is not required to return to his place of custody at the end of this period of leave.

Principal investigator advocate, OPA ('the investigator')

1. In a report dated 27 March 2025, the investigator outlined his investigation of the various concerns made by the applicant. In summary, evidence that the investigator obtained indicated that:
2. In relation to concerns about a possible future marriage, discussions had been going on for some years. From a cultural perspective it was not considered unusual. The woman Z had been in regular contact with was the sister of a person Z had known for over 20 years (not a support worker). In any event, there were no current plans for the woman to travel to Australia, as a recent application for a tourist visa had been declined.
3. In relation to concerns about Z already being married, the investigator phoned the Family Court who advised that people with the same names as Z and his previous wife had been granted a divorce, although they were unable to provide written confirmation unless a formal request was lodged. I note this is consistent with Z's understanding that he was previously granted a divorce.[20]
4. In relation to concerns about loss of tenancy, Z's accommodation provider confirmed that Z was a very compliant person and that his tenancy was safe.
5. In relation to concerns about contravening legal orders, there was no evidence found to support Z entering licensed premises. There was evidence of Z passing through exclusion zones, while on a bus, which was thought likely to be unintentional.
6. In relation to concerns about consumption of expired food, the investigator visited Z at his accommodation and Z consented to the investigator checking expiry dates on food items. None were expired. Z denied eating expired food.
7. Ultimately, the investigator took the view that Z was not being exploited in any way and was merely exploring the idea of marriage with someone from his own culture, noting there was a cultural element to the situation. The investigator recommended the application for guardianship be dismissed.

1. I will summarise the hearing held on 2 April 2025 only to the extent required in order to illustrate my rationale for the findings I have made.
2. Z appeared in person at the Tribunal together with his brothers A and B, niece D and a National Disability Insurance Scheme (NDIS) support coordinator. The investigator and an interpreter were also in attendance. The applicant appeared via Teams Link and included Z's case manager, and a consultant forensic psychiatrist Dr 5, who appeared on behalf of Z's treating psychiatrist Dr 3, who was unavailable. A representative from the PT appeared via telephone.
3. During the hearing I explained that any concerns about financial exploitation (including possible future risk of signing a pre-nuptial agreement) fell outside of the role of a guardian, and that currently Z had the protection of a plenary financial administrator, the PT. I also explained that a guardian had no role to play in whether a person married, because that is governed by the Marriage Act 1961 (C'th).
4. On behalf of the applicant, Dr 5 had never assessed Z but was able to provide an opinion based on clinical notes and records. Dr 5 repeated Dr 3's opinion that Z had a diagnosis of schizophrenia with an associated cognitive impairment, including limited insight into his diagnosis, and was incapable of making medical, services or accommodation decisions. The case manager agreed with Dr 5.
5. The investigator spoke about various aspects of his investigation and added that Z was conscious of his physical health and chose to regularly attend a doctor. The investigator thought that Z did not need a guardian, but supported Z's brother being appointed as his guardian if Z wished.
6. Z's brother B was willing to be appointed guardian, and his nomination was supported by family members A and D.

1. At the hearing, Z said that he had recovered well and wanted a normal life, including being able to work and to get married. Z disagreed that he had a diagnosis of schizophrenia. If a guardian were to be appointed, he nominated his brother B.

Does Z lack the capacity to make personal decisions?

1. I am satisfied and I find that Z is unable to make reasonable judgments in respect of matters relating to his person and is in need of oversight, care or control in the interests of his own health and safety.
2. That is because, whilst I acknowledge that Z does not agree, I accept the evidence from Dr 1, Dr 2 and Dr 3 that Z has a diagnosis of schizophrenia with an associated cognitive impairment which includes:
   • difficulties assessing the pros and cons of decisions and processing and interpreting information in order to make safe decisions;[21]
   • not having insight into his mental illness or understanding of limitations in his executive functioning;[22]and
   • would struggle to identify areas of weakness where he would require assistance and to identify his area of needs and engage appropriate services.[23]
3. Whilst grateful for the additional medical evidence from Dr 4 and Dr 5, given that Dr 5 had never assessed Z and Dr 4's report was written in 2023 and not prepared for this Tribunal, I do not need to consider their evidence any further.

Does Z need a guardian or is there a less restrictive way to meet his needs?

1. Any concerns about financial exploitation (including possible future risk of signing a pre-nuptial agreement) are already being managed because Z is subject to an administration order. The PT are currently appointed as plenary financial administrator and this means that Z is not legally able to enter into any type of financial contract.[24]
2. Any decision about whether Z should marry falls outside the scope of the GA Act. That is because the law of marriage is governed by Commonwealth legislation - the Marriage Act 1961. The only reference to marriage found in the GA Act is around prohibiting a plenary guardian from consenting to the marriage of a minor, signing a notice of intended marriage or taking part in the solemnization of a marriage.[25]
3. I have considered whether Z needs a medical treatment guardian and decided he does not. That is because there was evidence that Z had been signing his own consent forms for recent cataract surgery, one psychiatrist (Dr 1) said Z could probably make his own medical treatment decisions, and the investigator said Z was conscious of his physical health and regularly attended a doctor. I note that any concerns about future psychiatric treatment could be addressed by the Mental Health Act 2014 (WA). If Z was thought to be unable to make reasonable judgments about any proposed medical treatment in future, the GA Act already provides for B to be able to do so.[26]
4. I am satisfied and I find that Z is in need of a limited guardian for accommodation and services decisions. That is because I accept that Z is currently subject to a leave of absence order which prescribes a number of strict terms and conditions Z must adhere to, including where he must reside. Z remains subject to a custody order until further decision of the Supreme Court, with a hearing scheduled for later this year. That means there is a possibility that the custody order may be revoked. I have made findings that Z lacks insight into his mental illness and lacks understanding of limitations in his executive functioning, and would struggle to identify areas of weakness where he would require assistance and to identify his area of needs and engage appropriate services.
5. It is possible Z will be released from the custody order in coming months, and Z is not capable of making his own decisions about where he lives or the services he requires.

1. B is a supportive brother who demonstrated acceptance of Z's condition and needs at the 2 April 2025 hearing. B is willing to be appointed limited guardian, and his appointment was supported by his brother A, daughter D and Z. There was no evidence before the Tribunal to suggest B was unsuitable in any way.
2. I am satisfied and I find that B will act in Z's best interests, that there are no conflicts of interests and that B is otherwise suitable to act as limited guardian.

What decisions should Z's guardian be making, and for how long?

1. I am satisfied Z needs a guardian for accommodation and services decisions as explained in paras [51] and [52].
2. The order should be reviewed by 26 April 2026. That is when Z's administration order is due for review. I anticipate that the outcome of the Supreme Court matter will be known by then, and that decision is relevant in my view as to whether there would remain a need for ongoing orders.
3. For these reasons I make the following declarations and orders.

1. The Tribunal declares that the represented person, [Z] is:

(a) unable to make reasonable judgments in respect of matters relating to his person;

(b) in need of oversight, care or control in the interests of his own health and safety; and

1. [B] of [address withheld] is appointed limited guardian of the represented person with the following functions:

(a) to decide where the represented person is to live, whether permanently or temporarily;

(b) to decide with whom the represented person is to live; and

(c) to determine the services to which the represented person should have access.

1. [B] is authorised to give and receive information and reports from any treating health professional of the represented person, and to make those available to others for the purposes of dealing with the National Disability Insurance Agency in relation to the represented person's entitlement to National Disability Insurance Scheme funding and for determining any services to which he may have access.
2. The guardianship order is to be reviewed by 26 April 2026.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.

[3] State Administrative Tribunal Act 2004 (WA), s 9(a), s 9(b) and s 9(c).

[5] GA Act, s 43(4), s 44, s 46 and s 84(a).

[18] Pursuant to s 105(1) of the Criminal Law (Mental Impairment) Act 2023 (WA).

[19] Pursuant to s 73(1)(b) of the Criminal Law (Mental Impairment) Act 2023 (WA).

[22] Dr TD medical report dated 23 December 2024.

[23] Dr MM medical report dated 27 March 2025.