PJB (Guardianship)  VCAT 643 (17 May 2010)
Justice Billings in the Victorian Civil and Administrative Tribunal has held that the appointment of an administrator to the estate of a represented person, PJB, was a justifiable restriction on PJB's right to freedom of movement and right to privacy.
This was a rehearing of an application for an administration order under the Guardianship and Administration Act 1986 to appoint State Trustees Limited as administrator to make decisions regarding PJB's financial affairs, particularly relating to his home.
PJB had a 20 year history of mental illness, including over 100 hospital admissions and had been diagnosed with a delusional disorder. He disputed that he had a mental illness and was resistant to medical treatment. He had a history of discontinuing medication upon discharge from hospital, which resulted in the need for readmission.
PJB had lived alone in a home owned by the Office of Housing and had been making payments to acquire this home.
Significant emphasis was placed on PJB’s mental health, and likelihood of successful treatment outside of supported accommodation. PJB intended to return to living alone in his home, whereas the applicant submitted that he was not able to do so as his mental illness and resistance to medication resulted in him not being able to adequately manage his affairs, including his financial affairs. Accordingly, the applicant considered it appropriate for an administrator to be appointed to PJB’s estate to sell his home in order to fund the supported accommodation which it was submitted he required. It was agreed that it would not be possible for PJB to afford to keep his home and pay for the supported accommodation it was submitted that he required.
The applicant tendered numerous medical reports supporting the need for an administration order. Relevantly, the applicant tendered a psychologist report provided in December 2009 stating that PJB's mental state impacted on his ability to make informed choices about his physical and mental health.
The applicant suggested that PJB responded well to treatment during his admissions in hospital, but he was likely to discontinue this necessary medication once discharged, based on previous actions.
The applicant submitted that PJB had disregard for his obligations regarding necessary bills and general health and living requirements. Whilst it was agreed that PJB had demonstrated that he could understand and manage aspects of his finances, it was submitted that he could not manage ‘the complexity of living on his own’, including managing his house, debts and food on a daily basis and living within a budget.
The applicant agreed that PJB functioned ‘extremely well’ in hospital and that in principle he could receive his medication at home under a Community Treatment Order, but his history of admissions resulting from not taking his medication indicated that this was not appropriate in the circumstances.
It was submitted by the applicant that whilst the current application did not relate to PJB's mental health treatment as such, certain aspects of his mental and physical illness impacted on his ability to make informed decisions regarding his financial affairs, which resulted in the need for an administration order.
The respondent also submitted a psychiatrist report. However, when questioned, the psychiatrist revised his opinion such that he did not consider PJB to have the capacity to make rational decisions. He stated that he could not tell whether PJB would be able to make reasonable decisions regarding his property if compliance with his medication could be ensured through the provisions of the Mental Health Act 1986.
The Tribunal found that an administration order was appropriate in the circumstances and appointed State Trustees Limited as the administrator of PJB's estate. It was held that decisions about PJB's home could not be separated from decisions about where it was in his best interests to live.
The Tribunal indicated that any decisions by an administrator about PJB's home would need to follow careful analysis, in accordance with the principles in the Guardianship and Administration Act 1986, however ‘the issues surrounding that decision suggest a strong possibility that an administrator would decide to sell PJB's home’. Therefore, an administration order in the circumstances ‘may have the ultimate result of severing of PJB's very strong connection with his home’.
The Tribunal agreed that the sale of PJB’s home may be irreversible and extreme, but was appropriate given less restrictive options had failed previously and were likely to fail again.
Consideration of the Victorian Charter
The respondent submitted that an administration order involved a limitation on PJB’s right to freedom of movement under s 12 of the Charter of Human Rights and Responsibilities Act and his right to privacy under s 13.
Relevantly, s 12 of the Charter states that ‘every person lawfully within Victoria has the right ... to choose where to live’. Section 13 of the Charter provides that a person has the right ‘not to have his or her privacy, family, home or correspondence unlawfully or arbitrarily interfered with’.
The respondent argued that the administration order, in the circumstances, involved a limitation on the freedom of PJB to choose where to live and also on his privacy, as this involved the management of his finances through the sale of his home.
The respondent also referred to the decisions in Kracke v Mental Health Review Board & Ors (General) and AC (Guardianship). In addition the respondent referred to art 19 of the Convention on the Rights of Persons with Disabilities, which recognises the equal right of all persons with disabilities to live in the community with equal choices to others, including the opportunity to choose their place of residence.
The respondent submitted that the application for an administration order was disproportionate to the aims that were trying to be achieved, being to maintain mental and physical health, and this could be achieved in a less restrictive way. Further, it was submitted that the sale of PJB's home was an unworkable limitation on his rights as this was irreversible and extreme.
The Tribunal noted that both Kracke and AC (Guardianship) need to be reconsidered in light of R v Momcilovic.
It held that generally administration orders alone would not involve a restriction on the right to freedom of movement and right to privacy, although they may involve restrictions on a person's ‘freedom of decision and action’. The Tribunal stated that this was so despite the fact that ‘in practice restricted control of a person's funds may mean restricted choice about the person's accommodation’.
However, as the current administration order was ultimately directed at decisions regarding PJB's home, the Tribunal found that the administration order would involve a limitation on PJB's right to freedom of movement and right to privacy.
The Tribunal then considered whether this infringement on PJB's rights was justified under s 7(2) of the Charter. In doing so, the Tribunal stated that ‘the question of proportionality is at the heart of the enquiry mandated by s 7(2) of the Charter’, referring to the decision in Momcilovic and also the Canadian case of R v Oakes.
The Tribunal found that the measures were designed to protect PJB and others who were placed at risk due to his behaviour. Accordingly, it was held that those measures were rationally connected to, and proportional to, the objective. Therefore, the measures were justifiable under s 7(2) of the Charter.
The Tribunal also found that the administration order did not offend the principles of the CRPD read as a whole.
The decision is at www.austlii.edu.au/au/cases/vic/VCAT/2010/643.html.
Mandy Lister is a volunteer lawyer with the Human Rights Law Resource Centre