AUB

[2017] NSWCATGD 46

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	AUB [2017] NSWCATGD 46
Hearing dates:	12 September 2017
Date of orders:	12 September 2017
Decision date:	12 September 2017
Jurisdiction:	Guardianship Division
Before:	J S Currie, Senior Member (Legal)
Decision:	The guardianship order concerning Mr AUB made on 3 September 2015 is revoked from 12 September 2017.
Catchwords:	MENTAL HEALTH – Guardianship – end-of-term review of guardianship order – whether subject person continued to be a person in need of a guardian within meaning of Guardianship Act – finding that the evidence did not establish that there was sufficient nexus between the reported disabilities of the subject person and his need for supervision or social habilitation – finding that he was not a “person in need of a guardian” – lapse and revocation order.
Legislation Cited:	Guardianship Act 1987 (NSW), ss 3, 4, 4(a) Mental Health Act 2007 (NSW)
Cases Cited:	Nil
Texts Cited:	Nil
Category:	Principal judgment
Parties:	Mr AUB (subject person) The NSW Public Guardian (appointed guardian)
Representation:	Nil
File Number(s):	NCAT 2012/00404600
Publication restriction:	Decisions of the Guardianship Division of the Civil and Administrative Tribunal have been anonymised to remove any information that may identify any person involved in the Tribunal’s proceedings (s 65, Civil and Administrative Tribunal Act 2013 (NSW)).

REASONS FOR DECISION

REVIEW OF A GUARDIANSHIP ORDER

What the Tribunal decided

1. The Tribunal decided that the guardianship order made for Mr AUB on 3 September 2015 should lapse and be revoked for the remainder of its term.

Background

2. Mr AUB (who prefers to be known as AUB”) is a 23-year-old man who is reported to have previous diagnoses of Asperger's syndrome, autism spectrum disorder, post-traumatic stress disorder oppositional defiance disorder, reactive attachment disorder, and attention deficit hyperactivity disorder (inattentive type). He also has diabetes and is insulin-dependent. He self-administers insulin injections in the presence of staff, subject to the supervision of a diabetes clinic in Western Sydney which he attends quarterly. Mr AUB currently lives in a group home managed by a service provider in Western Sydney. He has been resident there since 3 September 2013.

3. The Tribunal has made several orders for Mr AUB and conducted reviews of them since the first guardianship order, made on 10 August 2012. The Public Guardian has acted as his guardian throughout this period. At the most recent completed review, Mr AUB's guardianship order, on 3 September 2015, the Public Guardian was appointed as guardian for two years to make decisions about Mr AUB's health care, medical and dental consent, and services.

4. On 10 August 2016, an application was made by a team leader at the service provider requesting a further review of the order but at a hearing on 23 September 2016 the Tribunal accepted the applicant's withdrawal of that application and dismissed it.

5. The purpose of the review hearing at Western Sydney on 12 September 2017 was to conduct the end-of-term review of the guardianship order made for Mr AUB.

Parties and witnesses

6. The front sheet to these Reasons identifies the parties to the application and the Appendix identifies the witnesses who participated in the hearing. [Appendix removed for publication.]

Issues for determination by the Tribunal

7. The issues for my determination were:

1. Is Mr AUB someone for whom I could make a further guardianship order because he continues to have a disability which prevents him from being able to make important life decisions? Is he “a person in need of a guardian” for the purposes of the Guardianship Act 1987 (NSW)?

2. If he is, should I make a further guardianship order?

3. If so, what order should be made? Specifically, what decision-making functions should the guardian have, who should be the guardian and how long should any further guardianship order last?

Participation in the hearing by Mr AUB and his views

8. We seek to hold our hearings in a way which promotes the participation of the person who is the subject of the application or review and we do our best to obtain the views of the subject person whenever possible.

9. Mr AUB attended the hearing and participated actively in it. He was forthcoming in answering my questions and in relating his views. In summary he believes strongly that he no longer needs a guardian because he can make most of his own decisions. He readily concedes that he needs some assistance in order to make the right decision in particular areas, but he wishes to be allowed the independence of deciding when that assistance is necessary and asserts that for the most part he can make his own decisions.

10. Mr AUB told me that his health was good and that he complies with his daily medication regime. He indicated that he was happy in his present accommodation but wanted more independence.

11. Mr AUB expressed his views cogently and with confidence.

THE TRIBUNAL'S ASSESSMENT OF THE EVIDENCE AND DETERMINATION OF THE ISSUES

Is Mr AUB someone for whom I could make a further guardianship order because he continues to have a disability which prevents him from being able to make important life decisions? Is he "a person in need of a guardian" for the purposes of the Guardianship Act?

The legislative definitions

12. The Tribunal may make a further guardianship order for a person only if it is satisfied that he or she is a person in need of a guardian. That phrase is defined in s 3 of the Guardianship Act as “a person who because of a disability, is totally or partially incapable of managing his or her person”. A person with a disability is someone who is intellectually, physically, psychologically or sensorily disabled, of advanced age, a mentally ill person within the meaning of the Mental Health Act 2007 (NSW), or otherwise disabled; and by virtue of that fact is restricted in one or more major life activities to such an extent that he or she requires supervision or social habilitation.

The evidence

13. At its previous hearings the Tribunal has considered numerous medical reports which have established to its satisfaction the diagnoses summarised in [2] above and that Mr AUB was a person in need of a guardian. At its hearing on 23 September 2016, the Tribunal had before it an updated Behaviour Intervention Support Plan (“the 2016 BIS Plan”) updated to January 2016. That report confirmed those diagnoses and outlined the challenging behaviours which Mr AUB was reported to be capable of displaying when he becomes agitated or feels under pressure. The 2016 BIS Plan did note that:

However, recently it has become apparent that his risk taking behaviours and impulsivity and aggression have increased due to various issues.

14. That Plan also reported that Mr AUB had been arrested in late-2012 and charged with several offences including possess or use military style weapon without permit. It is also the case that the review which was the subject of the hearing on 23 September 2016 was initially requested because Mr AUB was alleged to have purchased a samurai style sword.

15. There was no new or updated medical evidence and no updated behaviour support plan available for the present hearing. However, there was substantial evidence before me that there had been significant improvements Mr AUB's health and general well-being, his self-control and consequent capacity to make sensible and prudent decisions in relation to many matters including his health care, medical attention, and treatment and services. In summary that evidence was as follows.

1. Ms Z, the Support Coordinator for Mr AUB at the service provider, who attended the hearing and who has known Mr AUB for about the last eight months, told me that Mr AUB appeared to be comfortable and happy in a group home which he shared with three others, that he sees a general practitioner regularly and sees Dr Y, Psychiatrist, about twice per month. He receives his depot insulin injections every quarter. He is compliant with his medication regime generally and that appears to have been successful in dramatically reducing the frequency and scope of previous behavioural incidents, of the type referred to in the 2016 BIS Plan. Ms Z related that she and her colleagues retained some concern as to Mr AUB's occasional consumption of foods which were unsuitable, especially when he has access to the general community. However, she confirmed that the access to food restrictions contained in the 2016 PIS plan were to be reviewed in October 2017. It was my understanding that neither Ms Z nor her colleagues believe that there should be any restriction on Mr AUB's access to the community solely for this reason, but that in any case the matter would be reviewed within a month of this hearing.

2. Although no representative of the Public Guardian was available to participate in the hearing, I had received and considered a detailed Public Guardian's View report dated 4 September 2017, prepared by Mr David Thompson, a Principal Guardian, and Ms Amanda Godbold, Senior Guardian. In summary, the Public Guardian's view is that Mr AUB no longer requires a guardian. In reaching that view, the Public Guardian considered Mr AUB's own views and the views of Ms Z of the service provider. The Public Guardian reported that Mr AUB's health is generally stable and that he is able to give his own medical and dental consents. Significantly, he participated in the transition of his services to the National Disability Insurance Scheme (“NDIS”) and signed his own service agreements under the NDIS. His diagnosed diabetes is, in the Public Guardian's view, managed very well and Mr AUB is reported to take the medication he needs and usually to make good food choices. The Public Guardian has not been called upon to make any health care or medical and dental consent decisions under the current order, and the last services order appears to have been made in January 2016 and that appears to have been a formal consent to the service provider to the release of relevant information concerning Mr AUB to funding bodies and external auditors.

3. As related in [9] to [11], Mr AUB himself gave a clear and confident account of his current health, accommodation and lifestyle matters generally, and demonstrated his apparent ability to make his own decisions, including consent to his own medical treatment.

16. It was my understanding from Ms Z's evidence that, although the 2016 BIS Plan remains in force and it contains restrictive practices relating to Mr AUB's access to food, to tools and sharps and to finances, the Plan is subject to a further review in October 2017. That review could result in a substantial dilution of the restrictions. In any case, there is no restrictive practices function in the current guardianship order and the Public Guardian has not recommended or otherwise indicated that it wishes to have direct oversight over these restrictions by way of the addition of such a function.

Analysis and determination

17. I accepted the sources of evidence summarised in [15] above as reliable and persuasive. There was no inconsistent or contradictory evidence.

18. On the basis of the evidence, I accepted that Mr AUB continues to have disabilities, but in determining whether he remained as “a person in need of a guardian” for the purposes of the Guardianship Act, I could not be satisfied that the necessary nexus between those disabilities and his need for supervision or social habilitation had been made out. What the evidence does demonstrate, quite clearly, is that presently and for the foreseeable future:

1. Mr AUB is and will be capable of undertaking most of his activities of daily living and capable of making decisions on life matters relevant to him without the need for a substitute decision-maker; and

2. Notwithstanding his disabilities, he is not and will not be someone who, because of a disability, is totally or partially incapable of managing his person.

19. Accordingly, he is not a person in need of a guardian.

20. In reaching this conclusion, I had regard to the factors set out in s 4 of the Guardianship Act and in particular to the views of Mr AUB himself. The other s 4 (of that Act) factors which were relevant to my decision were the requirement that Mr AUB's freedom of decision and freedom of action should be restricted as little as possible and that he should be encouraged, as far as possible, to live a normal life in the community and to be self-reliant in matters relating to his personal and domestic affairs. As required by s 4(a) of the Guardianship Act, I gave paramount consideration to Mr AUB's welfare and interests and was satisfied that they would be protected and promoted by a revocation of the order.

21. It must follow from my conclusion that Mr AUB is not a person in need of a guardian that the guardianship order for him should lapse and be revoked for the remainder of its term.

22. I ordered accordingly.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 13 December 2018