BBG

[2020] NSWCATGD 70

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

BBG [2020] NSWCATGD 70

Hearing dates:

16 April 2020

Date of orders:

16 April 2020

Decision date:

16 April 2020

Jurisdiction:

Guardianship Division

Before:

J S Currie, Senior Member (Legal)

Decision:

REVIEW OF GUARDIANSHIP ORDER

The guardianship order for BBG made on 1 April 2019 has been reviewed.

The order now is as follows:

1. The Public Guardian is appointed as the guardian.

2. This is a continuing guardianship order for a period of 12 months from 17 April 2020.

3. This is a limited guardianship order giving the guardian custody of BBG to the extent necessary to carry out the functions below.

FUNCTIONS:

4. The guardian has the following functions:

a) Access

To decide what access BBG has to others and the conditions of access.

b) Accommodation

To decide where BBG may reside.

c) Services

To make decisions about services to be provided to BBG.

CONDITION:

5. The condition of this order is the Standard Condition.

In exercising this role the guardian shall take all reasonable steps to bring BBG to an understanding of the issues and to obtain and consider his views before making significant decisions.

JOINDER

DYG is joined as party.

Catchwords:

GUARDIANSHIP – end of term review of guardianship order – subject person lives in family home – need for decisions if moved to supported independent living –certain functions not included in reviewed order – order excludes functions which are being handled informally – Public Guardian appointed

INTERLOCUTORY – joinder of party – party has genuine concern for subject person – sibling joined

Legislation Cited:

Civil and Administrative Tribunal Act 2013 (NSW), s 36

Guardianship Act 1987 (NSW), ss 4, 4(d), 14, 14(2), 17

Cases Cited:

None cited.

Texts Cited:

None cited.

Category:

Principal judgment

Parties:

008: Review of Guardianship Order

BBG (subject person)
Public Guardian (appointed guardian)
CZG (carer)
SAG (carer)
DYG (joined party)

Representation:

Nil.

File Number(s):

NCAT 1993/00066928

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: Civil and Administrative Tribunal Act 2013 (NSW), s 65.

REASONS FOR DECISION

REVIEW OF A GUARDIANSHIP ORDER

Background

1. BBG, who is also known as “[BBG]”, is aged 49 years and has been diagnosed with an intellectual disability and bipolar affective disorder.

2. BBG lives with his mother, SAG, and his sister, CZG, in the family home at Northwest Sydney. BBG has another sister, DYG, who lives in regional New South Wales (NSW). She has reported that she is estranged from other family members.

3. The Tribunal and its predecessor the Guardianship Tribunal have made a number of guardianship orders for BBG since July 1992. At the most recent hearing for BBG, on 1 April 2019, a further guardianship order was made for him. The Public Guardian was reappointed as his guardian for 12 months with the functions of access, accommodation (including the authority to engage others to assist in implementing those decisions, known as “the coercive accommodation authority”), health care, medical and dental consent and services.

4. The statutory end-of-term review of that guardianship order was set down for hearing before me on 1 April 2020, but it had to be adjourned because of difficulties in contacting some of the parties.

5. The purpose of this hearing was to resume that review of BBG’s guardianship order. I had to decide whether the existing order would be renewed, with or without variation, or revoked. I decided to renew and vary the order. I made a further continuing limited guardianship order for BBG under which the Public Guardian was reappointed as his guardian for 12 months with the functions of access, accommodation and services. These are my reasons for those decisions.

The hearing, parties, participants and statutory provisions

6. This hearing was held by telephone conference from the Tribunal’s Sydney premises. Appendix A identifies the parties to the review and the participants in the hearing. [Appendix removed for publication.] Appendix B sets out the text of the principal statutory provisions which I have referred to in these Reasons.

Absence of BBG

7. The Tribunal seeks to hold its 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. Where we are able to obtain the subject person’s views we take them into consideration in exercising our functions under the Guardianship Act 1987 (NSW), in compliance with the principle laid down in s 4(d) of that Act.

8. BBG was not a participant in the telephone conference for the hearing. I noted that at previous hearings on 19 March 2018 and 8 October 2018, BBG had been excused from participation, because it was accepted by the Tribunal that because of his disabilities he would be unable to comprehend the nature or purpose of the hearing or the issues which were before the Tribunal. There was no indication from BBG’s family members that there had been any change to his inability to comprehend these matters. There was no objection to this hearing proceeding in absence.

9. On that basis I excused him from further participation.

Procedural issue: Joinder application

10. DYG had applied to be joined as a party to this review. I noted that the Tribunal had joined her as a party to the review undertaken on 8 October 2018. There was no objection to DYG being joined. I was satisfied that DYG had a genuine concern for the subject person, her brother BBG, and that it was otherwise appropriate for her to be joined as a party. I ordered accordingly.

Statutory issues

11. The issues for determination in any review of a guardianship order are:

1. whether the subject person is someone for whom a further guardianship order could be made, because he or she continues to have a disability which prevents them from being able to make important life decisions and whether he or she is “a person in need of a guardian” for the purposes of the Guardianship Act;

2. whether a further guardianship order should be made;

3. if it should, the nature of the order which should be made. Specifically, who should be appointed as guardian, the decision-making functions which should be granted to the guardian and what the duration of the order should be.

The real issues for determination

12. Under the “guiding principle” set out in s 36 of the Civil and Administrative Tribunal Act2013 (NSW) the Tribunal, the parties to the proceedings and their legal representatives must facilitate the just, quick and cheap resolution of the real issues in the proceedings. As a result, the Tribunal in each case needs to take early steps to identify the real issues in the proceedings.

13. I considered the statutory issues by reference to the documentary material with which I had been provided. That comprised a copy of the Tribunal’s previous orders and Reasons for Decision, a report (“the Public Guardian’s view”) from the Public Guardian, dated 24 March 2020 and a brief hearing report prepared for my attention by the Tribunal’s case officer.

14. On the basis of my consideration of that documentation and my discussion with the participants, it was clear and was uncontested that:

1. BBG’s diagnosis as described at [1] above was unchanged.

2. He remains cognitively impaired to the extent that the he could not make some important life decisions and could not manage his person.

3. For those reasons BBG continues to be a person in need of a guardian for the purposes of the Guardianship Act.

4. BBG is someone for whom a further guardianship order should be made. There was no objection to my reaching such a conclusion. In reaching a conclusion on the issue, I gave consideration to the factors set out in sub-s 14(2) of the Guardianship Act and was satisfied that a continuation of the order would preserve BBG’s existing family relationships and is necessary as the only practicable way in which the services which he needs could be made available to him. I was also satisfied that consideration of the matters outlined in s 4 of the Guardianship Act justified the continuation of the order and, as a paramount consideration, that BBG’s welfare and interests could best be preserved and protected by continuing the order. (For convenience of reference, ss 4 and 14 of the Guardianship Act are set out in full in Appendix B to these Reasons).

5. There is no private person who currently is willing to be appointed as guardian and who is able to be so appointed, by reference to the requirements in s 17 of the Guardianship Act (the text of which appears in Appendix B). I should note that BBG’s mother SAG appeared initially to indicate that she was capable of being guardian, but, as a result of my explaining to her the distinction between a care provider and a guardian, she did not press her request to be appointed. In order to be certain on this point, at the conclusion of the hearing I asked the participating family members whether any of them or anyone else they knew was willing to be considered for appointment. They responded the negative.

15. It follows that the Public Guardian should continue as guardian and I ordered accordingly.

16. I made findings corresponding with the conclusions at [14] and [15] above.

The real issues in these proceedings

17. It followed that there were only two issues in the proceedings which remained to be determined. They were

1. which decision-making functions the Public Guardian should have; and

2. the appropriate duration of the order and whether it should be reviewed on its expiration.

CONSIDERATION

The Public Guardian’s decision-making functions

Access

18. The Public Guardian currently has the access function. The Public Guardian’s view report indicated that regular access arrangements had not, unfortunately been successfully implemented, but recommended that the function be continued as there were remaining issues concerning BBG’s access to others. DYG identified at the adjourned hearing on 1 April 2019 that there was a continuing need for her access to her brother BBG to be arranged by the Public Guardian, due to her estrangement from other members of the family. Her view appeared to be supported the Public Guardian’s recommendation. There were no contrary views.

19. It is clear that the access function should be renewed.

Accommodation

20. It is evident from a review of the Tribunal’s Reasons for Decision over the last three hearings that the issue of BBG’s accommodation has been a live one. There appear to have been efforts at various stages to identify some form of appropriate supported independent living (“SIL”) accommodation for him.

21. It was clear from the views provided at the hearing by Mr Z, BBG’s National Disability Insurance Scheme (NDIS) Support Coordinator, a Principal Guardian from the Office of the Public Guardian and Ms Y, registered nurse from a Community Mental Health centre in Northwest Sydney, that although accommodation arrangements for BBG at the family home are currently reasonable and appropriate, it continues to be in his interest for SIL accommodation to be sought and assessed and remains possible that his guardian may need to make an accommodation decision: namely that he move to such accommodation.

22. I found those views reasonable and persuasive. Even if such a change of accommodation is not imminent, there remains a current need for the Public Guardian to be empowered to make it. It follows that the accommodation function should be renewed.

The Coercive Accommodation Authority

23. There was nothing before me to indicate that there was currently any real likelihood that BBG would seek to abscond or remain absent from the family home. It is too early to assess how he would settle in any proposed and agreed SIL accommodation. The Principal Guardian from the Public Guardian updated the view report and indicated to me that in the current circumstances the continuation of the coercive accommodation authority could not be justified. I found that view persuasive and there appeared to be no firm opposing views. I found that the coercive accommodation authority should not be renewed.

Health care and medical and dental consent

24. The Public Guardian recommended that these two functions should not be renewed. At the hearing the Principal Guardian submitted that in light of BBG’s ongoing supervision by the Community Mental Health centre and his continued consultations with Dr X, Consultant Psychiatrist, arranged through the centre, he was not being deprived of appropriate treatment and the Public Guardian accepted that BBG’s family would not stand in the way of the provision of appropriate health care and medical or dental treatment. The incident over recent months where BBG was discharged from hospital by hospital staff without further consultation with either the Public Guardian or the Support Coordinator was seen by the Public Guardian as unfortunate and not one which is likely to be repeated. The Principal Guardian was confident that if BBG is again hospitalised, his discharge will be arranged appropriately, with family consent and on the basis of consultations with his ongoing health care providers.

25. The Principal Guardian was also of the view that BBG’s medication was being appropriately handled and, to the extent necessary, supervised informally by family members and there appeared to be no clear need for the continuation of the guardian’s authority to give substituted consent for medical or dental treatment, particularly as family members had demonstrated their due care and concern BBG.

26. I found the Public Guardian’s submissions reliable and persuasive. I understood them to be consistent with the observations made Mr Z, the NDIS Support Coordinator and Ms Y, the Community Mental Health nurse. Although DYG expressed her continuing concern at the ability of the family to provide a settled structure, I did not understand her to object to the non-renewal of these functions. Even if I misunderstood DYG’s submissions in that regard and she did intend to express such an objection, I would have preferred the independent views of the Public Guardian supported by that of independent healthcare professionals.

27. It followed that the health care medical and dental consent functions should not be renewed.

Services

28. Mr Z confirmed the extent of the services presently being provided and indicated that at least one of the service providers had had some difficulties in being accepted by family members in the family home. I understood from his submission that the possible change of accommodation for BBG (to SIL accommodation) would justify the continuation of the services function as his services needs would change if that accommodation proposal was implemented. There appeared to be consensus amongst the family members that BBG’s ongoing well-being was dependent upon the continuation of appropriate services and there were clearly further services decisions to be made which in my view needed to be made by the guardian.

29. I was satisfied that this function should be renewed.

Conclusion: functions under the renewed order

30. It followed that:

1. there was no longer a need for the continuation of the health care and medical and dental consent functions or of the coercive accommodation authority, but

2. there remained a continuing need for the access, accommodation and services functions, in order to ensure BBG’s ongoing welfare and interests.

31. Accordingly, under the order as renewed and varied the Public Guardian should have the functions of access, accommodation and services. I ordered accordingly.

Duration and reviewability of the order

32. Where the Tribunal decides to renew the guardianship order it can make a further order in the ordinary case for a maximum of three years. However where it is satisfied that the subject person has permanent disabilities and it is unlikely that he or she will become capable of managing their person the maximum duration is five years.

33. The Public Guardian was of the view that the order should be reviewed for 12 months. There was no objection from other participants to that proposal. I found that proposal attractive, on the basis that there would be an ongoing need for decisions on each of those matters and for appropriate arrangements to be made for his access to others, over the next 12 months or so, but potentially not in the long-term.

34. I could see no justification for making a non-reviewable order.

35. I ordered accordingly.

APPENDIX B - STATUTORY PROVISIONS

Civil and Administrative Tribunal Act, No 2, 2013 (NSW)

36 Guiding principle to be applied to practice and procedure

(1)    The “guiding principle” for this Act and the procedural rules, in their application to proceedings in the Tribunal, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings.

(2)    The Tribunal must seek to give effect to the guiding principle when it:

(a)    exercises any power given to it by this Act or the procedural rules, or

(b)    interprets any provision of this Act or the procedural rules.

(3)    Each of the following persons is under a duty to co-operate with the Tribunal to give effect to the guiding principle and, for that purpose, to participate in the processes of the Tribunal and to comply with directions and orders of the Tribunal:

(a)    a party to proceedings in the Tribunal,

(b)    an Australian legal practitioner or other person who is representing a party in proceedings in the Tribunal.

(4)    In addition, the practice and procedure of the Tribunal should be implemented so as to facilitate the resolution of the issues between the parties in such a way that the cost to the parties and the Tribunal is proportionate to the importance and complexity of the subject-matter of the proceedings.

(5)    However, nothing in this section requires or permits the Tribunal to exercise any functions that are conferred or imposed on it under enabling legislation in a manner that is inconsistent with the objects or principles for which that legislation provides in relation to the exercise of those functions.

Guardianship Act 1987 (NSW)

4 General principles

It is the duty of everyone exercising functions under this Act with respect to persons who have disabilities to observe the following principles:

(a)    the welfare and interests of such persons should be given paramount consideration,

(b)    the freedom of decision and freedom of action of such persons should be restricted as little as possible,

(c)    such persons should be encouraged, as far as possible, to live a normal life in the community,

(d)    the views of such persons in relation to the exercise of those functions should be taken into consideration,

(e)    the importance of preserving the family relationships and the cultural and linguistic environments of such persons should be recognised,

(f)    such persons should be encouraged, as far as possible, to be self-reliant in matters relating to their personal, domestic and financial affairs,

(g)    such persons should be protected from neglect, abuse and exploitation,

(h)    the community should be encouraged to apply and promote these principles.

14 Tribunal may make guardianship orders

(1)    If, after conducting a hearing into any application made to it for a guardianship order in respect of a person, the Tribunal is satisfied that the person is a person in need of a guardian, it may make a guardianship order in respect of the person.

(2)    In considering whether or not to make a guardianship order in respect of a person, the Tribunal shall have regard to:

(a)    the views (if any) of:

(i)    the person, and

(ii)    the person’s spouse, if any, if the relationship between the person and the spouse is close and continuing, and

(iii)    the person, if any, who has care of the person,

(b)    the importance of preserving the person’s existing family relationships,

(c)    the importance of preserving the person’s particular cultural and linguistic environments, and

(d)    the practicability of services being provided to the person without the need for the making of such an order.

17 Guardians

(1)    A person shall not be appointed as the guardian of a person under guardianship unless the Tribunal is satisfied that:

(a)    the personality of the proposed guardian is generally compatible with that of the person under guardianship,

(b)    there is no undue conflict between the interests (particularly, the financial interests) of the proposed guardian and those of the person under guardianship, and

(c)    the proposed guardian is both willing and able to exercise the functions conferred or imposed by the proposed guardianship order.

(2)    Subsection (1) does not apply to the appointment of the Public Guardian as the guardian of a person under guardianship.

(3)    If, at the expiration of the period for which a temporary guardianship order has effect, the Tribunal is satisfied:

(a)    that it is appropriate that a further guardianship order should be made with respect to the person under guardianship, and

(b)    that there is no other person who it is satisfied is appropriate to be the person’s guardian,

the Tribunal may, in accordance with this Division, make a continuing guardianship order appointing the Public Guardian as the guardian of the person.

(4)    The Public Guardian shall be appointed as the guardian of a person the subject of a temporary guardianship order.

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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: 11 October 2021