BDI

[2015] NSWCATGD 19

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	BDI [2015] NSWCATGD 19
Hearing dates:	8 May 2015
Date of orders:	08 May 2015
Decision date:	08 May 2015
Jurisdiction:	Guardianship Division
Before:	B Hughes, Senior Member (Legal) M Wroth, Senior Member (Professional) K Laurence, General Member (Community)
Decision:	Temporary guardianship order made, 30 days. Public Guardian appointed
Catchwords:	GUARDIANSHIP – temporary order – urgent hearing – risk of harm – no notice to sibling – whether carer – withdrawal of care – not statutory party
Legislation Cited:	Guardianship Act 1987(NSW) Mental Health Act 2007 (NSW)
Category:	Principal judgment
Parties:	Ms BDI (subject person) Mr JNK (applicant) The Public Guardian
File Number(s):	172
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

What the Tribunal decided

1. The Tribunal appointed the Public Guardian as Ms BDI's guardian for a period of thirty days pursuant to a temporary guardianship order. The Public Guardian is appointed to make decisions about her accommodation, health care, medical and dental treatment, the services which she should receive, who should have access to her and under what conditions, and to make decisions about the legal services she is to receive as set out in the Tribunal's order.

Background

2. Ms BDI is a 48-year old woman who received a significant settlement following a medical negligence claim in 1999. Ms BDI's father, Mr IMI, was appointed as her financial manager on 30 April 1999. In 2009 Mr IMI asked Mr JDK, a family friend and accountant, to replace him as financial manager, due to his own age and health concerns. The Tribunal revoked the appointment of Mr IMI as manager of Ms BDI's estate and appointed Mr JDK as manager on 2 October 2009.

3. Ms BDI usually resides with her stepbrother, Mr DGL, in her own home at Northwest Sydney.

4. On 22 April 2015 the Tribunal received a guardianship application dated 11 March 2015. The application and supporting material had mistakenly been sent to the NSW Trustee and Guardian rather than the Guardianship Division.

The Hearing

5. At the end of these Reasons for Decision are lists of the parties to the application and witnesses who attended the hearing [appendix removed for publication]. The matter was listed for a directions hearing on Friday 8 May 2015 to determine who were the parties, what the issues were and to list the matter for hearing. The evidence at the directions hearing so concerned the Tribunal that the guardianship application was listed immediately for hearing. One of the issues was whether Mr DGL is a party to the proceedings, and as such is entitled to notice of the hearing and provision of the documentation produced to the Tribunal.

6. The Tribunal was told that Mr DGL had been Ms BDI's recognised carer for many years. Over the past two years it is alleged by Mr JDK and Ms TKC, Director and Registered Nurse, of an aged care and disability service provider, that Mr DGL has withdrawn care from Ms BDI. The aged care service provider commenced providing care and support to Ms BDI on 1 April 2012. Initially workers attended twice daily, with two workers present due to the manual handling requirements. Mr DGL reduced this to one worker morning and evening with no service on Sunday evenings. It became apparent to staff that Mr DGL was providing no care to Ms BDI between visits, whether through the day or overnight. Ms BDI wore the same clothes from day to day and if staff were not in attendance, her incontinence pad was not changed throughout the day or night. Mr DGL had a pattern of cancelling and reducing services. Staff became worried about Ms BDI's deteriorating condition - weight loss, lack of communication, lack of clean clothes and bedclothes. In consultation with the financial manager, Mr JDK, services were increased to 6 hours in the morning and one hour at night. This was necessitated due to the absence of Mr DGL from the home. In March 2014, when it was recognised that Mr DGL was staying away for long periods of time, services were increased to 12 hours a day. On 24 March 2014 they were increased to 24/7 after Ms BDI was left overnight by Mr DGL with no blankets, the back door unlocked and open, cold air in the house and her condition deteriorating further.

7. Mr DGL allegedly told the aged care service provider that he took Ms BDI regularly to a General Practitioner, however upon investigation it was discovered that Ms BDI had not been seen by this practice since 2009. A new GP was arranged and it transpired that Ms BDI had not been having regular, necessary medications or blood tests for her chronic medical condition. A breast lump was found which required biopsy, and was found to be benign. Dental care was also apparently not provided by Mr DGL. He was originally responsible for the purchase and preparation of meals for Ms BDI, however when it became clear that this was not occurring, the aged care service provider took over the purchase and preparation of food and fluids for Ms BDI. Mr DGL has reportedly been observed eating food purchased and prepared for Ms BDI.

8. Ms BDI is unable to initiate social contact, and was frequently left alone for long periods. She is unable to make contact with anyone in the event of an emergency. Mr DGL reportedly tells the story of when the chimney caught fire and he came home to find the house filled with smoke and fire fighters present. A member of the public had seen the smoke and called emergency services. For this reason, Ms BDI now receives 24-hour care to ensure that she is never unattended.

9. Ms BDI requires a full range of equipment to enable her to be moved, showered etc. No equipment has been maintained by Mr DGL over the past two years. A repairman allegedly told Mr DGL that a particular hoist was too dangerous to use and could potentially injure Ms BDI or staff. Mr DGL failed to pass on this message to staff and so the hoist continued to be used. Wheelchair tyres have been allowed to disintegrate.

10. It is said that Mr DGL smokes in the house and near to Ms BDI's bedroom. The house has regularly been unlocked with Ms BDI alone inside. Now that staff are present 24 hours a day, a lock has been added to her bedroom door and staff sleep overnight in her room with the door locked to ensure her safety as they cannot be sure that Mr DGL will lock the house when he comes and goes at night. Mr DGL reportedly invites people to the house who are unknown to Ms BDI and the staff, which can be intrusive to Ms BDI. Visitors are often in the family room at night, disturbing Ms BDI's sleep, and it is said that a stranger was living upstairs in the house for a period. Mr DGL blocked the access to the back door with his unregistered car for a period of three months. He was asked to move it in case of an emergency, but allegedly stated that he "does not live his life governed by what is safe for the staff and [Ms BDI]."

11. At the Directions Hearing Ms TKC advised that Mr DGL appears to be regularly under the influence of drugs. He has deteriorated rapidly, over the past few years, having been Ms BDI's principle carer for many years. When he performed the role of carer, his board and a commission were justified in the eyes of Mr JDK, the financial manager. Mr DGL has for some time been withdrawing care from Ms BDI. There is no tenancy agreement, and the house is fully owned by Ms BDI. Ms TKC and Mr JDK confirmed that Ms BDI and her carers are unable to use the rest of the house other than Ms BDI's bedroom due to their concerns for their safety. It has been referred to by Ms TKC as a citadel.

12. Mr JDK told the Tribunal that he had concerns about notifying Mr DGL of the hearing and the guardianship application. Mr JDK said that Mr DGL has been asked to pay rent or to leave the house but refuses to go. Mr JDK said that he had spoken to the police and been advised that a guardian needed to be appointed to legally authorise them to remove Mr DGL from the home. Mr JDK said that as financial manager he had not been able to obtain an Apprehended Violence Order protecting Ms BDI. Mr JDK said that the main concern is Mr DGL's unpredictability in mood and temper. He has spoken of the fact that he is Ms BDI's next of kin and that she has no will. He is alleged to abuse drugs, and Mr JDK has grave concerns for Ms BDI's safety if Mr DGL was advised of the application. Ms TKC told the Tribunal that Mr DGL has a blatant disregard for the law or rules, as shown by the fact that he drives an unregistered car without a licence.

13. The Tribunal was satisfied on the evidence before it that Mr DGL is not providing care to Ms BDI. The Tribunal found that he is not a party to the guardianship application. The Tribunal accepts that Mr DGL is a person whose life will be significantly affected by the making of a guardianship order for Ms BDI, however determined that the hearing should proceed urgently due to the serious risk of harm to Ms BDI if the matter were not dealt with on an urgent basis. Given the nature of the hearing and the lack of evidence from anyone other than Mr JDK and Ms TKC the Tribunal considered that if an order were made it should be brief so that the Tribunal at an end of term review could canvass any other evidence.

What did Tribunal have to decide?

14. The questions which had to be decided by the Tribunal were:

• Is Ms BDI someone for whom the Tribunal could make an order because she has a disability which prevents her from being able to make important life decisions?

• Should the Tribunal make a guardianship order and if so, what order should be made?

• Who should be the guardian?

• How long should the order last?

Is Ms BDI someone for whom the Tribunal could make an order because she has a disability which prevents her from being able to make important life decisions?

15. Section 14 of the Guardianship Act 1987(NSW) ('the Guardianship Act') provides that the Tribunal may make a guardianship order for a person if it is satisfied that he/she is "a person in need of a guardian." A person in need of a guardian is "a person who because of a disability is totally or partially incapable of managing his or her person" (section 3(1), Guardianship Act). A person with a disability is a person who is:

1. intellectually, physically, psychologically or sensorily disabled;

2. of advanced age;

3. a mentally ill person within the meaning of the Mental Health Act 2007 (NSW); or

4. otherwise disabled;

5. 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 (section 3(2), Guardianship Act).

16. Ms BDI's estate has been subject to financial management since 1999 when she received a significant medical negligence award. Ms BDI is reported to be brain damaged and a severely handicapped quadriplegic with rigid and deformed limbs. She is dependent on others for all activities of daily living. Ms BDI has limited communication and her cognitive functioning has not been able to be assessed.

17. The Tribunal is satisfied that Ms BDI has a disability which prevents her making important life decisions. She is a person for whom the Tribunal could make a guardianship order.

Should the Tribunal make a guardianship order and what order should be made?

18. Ms BDI was unable to attend the hearing or talk to the Tribunal to present her views because of her disabilities.

19. Mr JDK told the Tribunal that Mr IMI, the father of Ms BDI, is 92-years of age and has advanced dementia. In lucid moments he is reported to have expressed his grave concerns for Ms BDI's welfare and the detrimental conduct of his adopted son, Mr DGL. Mr JDK said that although Mr IMI supports the application for guardianship, it is felt that he can make little contribution to the process.

20. Mr JDK told the Tribunal that as financial manager he wished to sell Ms BDI's home and to purchase a home more appropriate to her care needs in a less socially isolated area. Mr JDK said that the current home is owned outright by Ms BDI and is a two-story home. Ms BDI only has access to her bedroom, which is a converted garage, due to the problems being experienced with Mr DGL over the past few years. Ms BDI and her carers have essentially locked themselves in Ms BDI's bedroom for their own protection. Mr JDK has asked Mr DGL to leave the home and he has refused. Mr JDK said that the police are unable to provide support to Ms BDI by evicting Mr DGL or pre-emptively protect her with an Apprehended Violence Order without a guardian being appointed by the Tribunal.

21. Mr JDK and Ms TKC said that they proposed that Ms BDI move into a modified motel room for respite for the period that Mr IMI would be removed from the home. To arrange this accommodation for Ms BDI will be difficult due to the nature of her disabilities. An accommodation decision will need to be made for Ms BDI. Due the risk of harm that is posed by the unpredictable and drug affected behaviour of Mr DGL, an access function is supported to determine who should have access to Ms BDI and under what conditions. Mr JDK has been advised that as financial manager he does not have the legal authority to have Mr DGL removed from the home or to seek an Apprehended Violence Order to protect Ms BDI from her stepbrother. Accordingly, he asked the Tribunal that the guardian be given the function of legal services.

22. Ms TKC supported the making of a guardianship order. She noted that Ms BDI had been deprived of medical and dental treatment whilst ostensibly being cared for by Mr DGL. Her dental condition was so poor when the aged care service provider became involved that dental extractions were required. Ms BDI suffers from an overactive thyroid, a medical condition that requires regular blood tests and medication. Ms BDI was not receiving appropriate medical treatment until the aged care service provider took her to medical appointments. Ms TKC said that a guardian needed to be appointed to make decisions formally about Ms BDI's accommodation (including if she moves to a motel whilst Mr DGL is removed from the home), her medical and dental treatment, her health care and the services she receives. Ms TKC further supported the guardian having the decision making functions of access and legal services.

The effect of an order on Ms BDI's family relationships/cultural or linguistic environment.

23. Mr JDK recognised that the guardianship application will affect Mr DGL. He is however, obliged to put Ms BDI's interests as the priority as her financial manager. Due to the concerns about her safety in her own home, Ms BDI now has 24-hour care, seven days a week which is costing her about $50,000 per month. Ms BDI's physical disabilities on their own do not require 24-hour care, however the extreme risk of harm to Ms BDI has led the financial manager to make this decision in her best interests. At present, Ms BDI and her carers are locked in Ms BDI's bedroom for their own safety and are unable to access or use the rest of the house that is owned by Ms BDI. The Tribunal hopes that the making of an order will enable Ms BDI to live safely, without the risk of neglect or harm.

Are there decisions which need to be made by a guardian?

24. The Tribunal was satisfied that a guardian would need to make decisions about Ms BDI's accommodation, including respite accommodation, her medical and dental treatment, her health care and the services she should receive. The Tribunal further considered that the guardian would need to make decisions about who has access to Ms BDI and under what conditions. A guardian may need to make decisions under a legal services function in respect of Apprehended Violence Orders and the eviction of Mr DGL from the property.

25. The Tribunal decided on the basis of all of this evidence that a guardianship order should be made.

Who should be the guardian?

26. The Tribunal has decided to make a temporary guardianship order, which means that only the Public Guardian can be appointed for the term of that order.

How long should the order last?

27. The Tribunal made a temporary guardianship order for a period of thirty days. The Tribunal was concerned that a decision had to be made urgently, due to the evidence it had received from Mr JDK and Ms TKC. As a result of the urgency, the Tribunal was not able to obtain the views of anyone else with an interest in the proceedings other than Mr JDK and Ms TKC. Although the situation had been critical for over a year, the Tribunal was conscious that the hearing of the guardianship application would be likely to have the effect of temporarily increasing the risk of harm to Ms BDI until the situation at home had resolved. For this reason, the Tribunal determined to conduct the hearing on an urgent basis, appoint the Public Guardian to make decisions during the term of the temporary order, and hopefully to enable decisions to be made in the manner most conducive to the safety and welfare of Ms BDI.

28. The guardianship order will be reviewed upon its expiration.

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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: 28 July 2015