BKO

[2022] NSWCATGD 21

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

BKO [2022] NSWCATGD 21

Hearing dates:

11 September 2022

Date of orders:

11 September 2022

Decision date:

11 September 2022

Jurisdiction:

Guardianship Division

Before:

L Organ, Senior Member (Legal)
E Love, Senior Member (Professional)
J Le Breton, General Member (Community)

Decision:

1. A guardianship order is made for BKO.

2. The Public Guardian is appointed as the guardian.

3. This is a continuing guardianship order for a period of four weeks from 11 September 2022.

4. This is a limited guardianship order giving the guardian(s) custody of BKO to the extent necessary to carry out the functions below.

FUNCTIONS:

5. The guardian has the following functions:

a) Accommodation

To decide where BKO may reside.

b) The guardian may authorise others including members of NSW Police and the Ambulance Service of NSW to:

i) take BKO to a place approved by the guardian.

ii) keep him at that place.

iii) return him to that place should he leave it.

c) Health care

To decide what health care BKO may receive.

d) Medical/Dental consent

To make substitute decisions about proposed minor or major medical or dental treatment, where BKO is not capable of giving a valid consent.

AUTHORITY:

6. The guardian has the following authority:

a) Authority to override objections to medical treatment

i) The guardian may override the objection of BKO to major or minor medical treatment.

CONDITION:

7. The condition of this order is:

a) Standard Condition

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

Catchwords:

GUARDIANSHIP – application for a guardianship order – after hours hearing – urgent hearing requested as subject person seeking to leave hospital against medical advice – hearing with limited or no notice to the parties – hearing proceeding in the absence of the subject person – risk outweighed lack of notice – subject person refusing treatment due to delusional beliefs – need for medical treatment decisions to be made with authority to override objections – Public Guardian appointed – four week reviewable guardianship order made.

Legislation Cited:

Guardianship Act 1987 (NSW), ss 3(1)–(2), 4, 4(g), 10, 14, 14(2), 15(3), 46A

Cases Cited:

None cited.

Texts Cited:

None cited.

Category:

Principal judgment

Parties:

001: Guardianship Application

BKO (the person)
ESF (applicant)
Public Guardian

Representation:

Nil.

File Number(s):

NCAT 2000/00073984

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

Background

1. BKO is a 64-year-old man who is currently an inpatient at a public hospital (the hospital). BKO is reported to be homeless. He was brought in by ambulance to the hospital the day before the hearing after experiencing difficulty swallowing, chest and abdominal pain. It is thought BKO may have two siblings but is reported to not be in contact with them.

2. An urgent oral application for guardianship was received by the Tribunal’s after-hours service on 11 September 2022 from ESF, a Resident Medical Officer at the hospital. ESF raised serious concerns regarding BKO who was reported by ESF to be seeking to leave the hospital against medical advice.

The hearing

3. At the end of these Reasons for Decision are lists of the parties to the application and the witnesses who attended the hearing. [Appendix removed for publication.]

4. The hearing was conducted on an urgent basis by phone by the Tribunal after hours. This was due to concerns expressed by ESF that BKO posed a risk to himself as he was seeking to discharge himself against medical advice.

5. In this matter we found, for the reasons set out below, that there are decisions of sufficient urgency to persuade us that it was in BKO’s best interests that we proceed to hearing, even though the matter was listed for hearing urgently and there was no notice of hearing sent to the parties by the Tribunal in the usual manner.

6. We note that s 10 of the Guardianship Act 1987 (NSW) (‘the Act’) provides that it is a requirement to send the parties a notice of hearing, however, the failure to do so does not vitiate the decision of the Tribunal.

7. We decided there was a significant immediate risk to BKO if we did not proceed with the hearing and that issues of procedural fairness could be addressed by the making of a short reviewable order.

What did the Tribunal have to decide?

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

• Is BKO someone for whom the Tribunal could make an order because he has a disability which prevents him 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 BKO someone for whom the Tribunal could make an order because he has a disability which prevents him from being able to make important life decisions?

9. Section 14 of the Act provides that the Tribunal may make a guardianship order for a person if it is satisfied that he or 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”: the Act, s 3(1). 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;

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 Act, s 3(2).

10. The applicant, ESF, who is a Resident Medical Officer and Dr Z, Registrar in Emergency Medicine, both gave evidence that in their opinion BKO lacks capacity to make informed decisions about his medical treatment and staying in hospital. Dr Z said BKO came into hospital experiencing a number of symptoms and blood tests performed since then show his blood test results are deranged with his troponin level increasing from 96 yesterday to 600 on the day of the hearing. Troponin is a protein in the cardiac muscles that is released when the heart has been damaged. This can be a sign of a recent or imminent heart attack. Dr Z said effectively BKO’s current troponin level means his myocardium (heart muscle) is dying. Dr Z said it is now critical that BKO’s condition be closely monitored and investigated in hospital. He also needs to receive appropriate treatment to be determined over the next few days.

11. Dr Z said BKO has been refusing to accept treatment including investigative testing such as scans. When asked why he was not willing to have the recommended treatment and monitoring, BKO is said by both ESF and Dr Z to repeatedly state that all of his symptoms are related to an assault he alleges he suffered some months ago by a security guard in hospital. Dr Z said there is no basis to believe this is correct and it is the treating team’s view that these are delusional beliefs.

12. Dr Z described BKO as tangential, without the ability to rationalise his decisions for not accepting medical treatment recommended and advice he has received. He is very fixated and repetitive about the alleged assault as well as guarded and suspicious of hospital staff. Dr Z said BKO has had 19 presentations to emergency departments this year with two admissions including one for a confirmed cardiac arrest. Clinical records from some of the presentations available to the treating team at the public hospital indicate BKO has a delusional disorder and possible personality disorder. Dr Z also believes he has a significant level of cognitive impairment based on her interactions with him. She noted there is reference in the clinical records of other hospital presentations to BKO having a brain injury and cognitive impairment.

13. Although no formal cognitive screening or assessment has been possible since his admission, both ESF and Dr Z were consistent in stating that in their opinion BKO lacks capacity to weigh up information provided to him about his medical status and the risks he faces and make informed decisions.

14. We did not speak to BKO. We were told by Dr Z that she had grave concerns that attempting to involve him in the hearing would cause BKO to become distressed, highly anxious and agitated. She was worried that if he became aware the application had been made it would cause him to again attempt to leave the hospital. She said ESF had been able to build a tenuous rapport with BKO and had persuaded him to stay at least for a short time. Based on that evidence, which we accepted, we did not attempt to involve BKO in the hearing.

15. We accepted the evidence of ESF and Dr Z who both presented as balanced and credible witnesses. We find that BKO is a “person with a disability” within the meaning of s 3(2) of the Act. In addition, we find that BKO is at least partially incapable of managing his person. It follows that BKO is a “person in need of a guardian” and the power to make a guardianship order can be exercised. This is cogently demonstrated by his rejection of and inability to understand medical advice received that he needs to stay in hospital for monitoring and treatment of his cardiac condition and that if he does not do so he faces the risk of catastrophic consequences including death.

16. Clearly because of the limited hearing we were able to conduct in the circumstances it will be important on review of the order for further evidence to be provided by the hospital regarding any assessments performed of BKO’s cognitive function and any psychiatric assessment or testing carried out at the hospital.

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

17. In deciding whether to make a guardianship order, in addition to the factors listed in s 14(2) of the Act, we must have regard to the s 4 statement of principles of that Act. Among other things, this requires that in deciding whether to make a guardianship order, we must endeavour to restrict BKO’s freedom of decision making and freedom of action as little as possible, as far as possible enable him to be self-reliant in matters relating to his personal, domestic and financial affairs, and, at the same time, protect him from neglect, abuse and exploitation. The paramount consideration at all times is BKO’s welfare and interests.

18. We were not able to obtain BKO’s views for the reasons already outlined. A guardianship order will represent a significant restriction on BKO’s autonomy and ability to make decisions and we have taken this into account. We have also taken into account that as far as possible we should enable him to be self-reliant in matters relating to his personal and domestic affairs.

19. There was nothing before us which indicated that appointing a guardian for a short period of time would have an adverse impact on BKO’s existing family relations or of any particular cultural and linguistic considerations relevant to our decision. We were told by ESF that BKO is believed to have two sisters however BKO said he is not in contact with them.

20. We consider the principle, as it applies to BKO, that he should be protected from neglect (s 4(g) of the Act) should be given very substantial weight. Without an order being made we consider there is a real and material risk of neglect in the sense of BKO not receiving appropriate, timely health care and medical treatment which puts him at risk of adverse health outcomes.

21. Having regard to the mandatory considerations set out in s 14(2) of the Act and after weighing the principles contained in s 4 of that Act, we were satisfied that a guardianship order should be made for BKO. We consider this outcome would give his welfare and interests paramount consideration.

22. A guardian should have authority to make decisions about BKO’s accommodation. He is currently in hospital and has indicated he wishes to leave the hospital. Given his strong opposition to remaining in hospital we consider it is appropriate that the guardian have authority to authorise others including NSW Police and Ambulance to implement decisions about his accommodation so that he can be taken to or safely returned to hospital if he leaves. BKO has symptoms of a serious cardiac condition and requires ongoing monitoring and treatment. It is therefore appropriate that the guardian has authority to make decisions about his health care and to give or withhold consent for medical treatment.

23. As BKO has fluctuated during the course of his admission about whether he will agree to have treatment or undergo investigative/diagnostic tests such as an angiogram or echocardiogram it is appropriate that the guardian have authority to override his objection to medical treatment: the Act, s 46A. The Tribunal may confer such an authority only at the request or with the consent of the guardian and only if it is satisfied that any such objection will be made because of the patient's lack of understanding of the nature of, or reason for, the treatment. We note that Ms Y, Duty Guardian from the Public Guardian who participated in the hearing, requested that the Tribunal confer this authority. We were satisfied that any objection to medical treatment by BKO will be made because of his lack of understanding of the nature and reason for the treatment.

Who should be the guardian and how long should the order last?

24. The Tribunal is not able to appoint the Public Guardian as a person’s guardian if there is a private person who can be appointed: the Act, s 15(3). As there was no private individual to appoint, we appointed the Public Guardian as BKO’s guardian. On review of the order the issue of whether any family members are willing to be considered for appointment as guardian can be explored.

25. We decided to make a short order of four weeks. The order should be reviewed at the end of that period to determine if the order should continue, lapse or be varied. The review hearing will also provide an opportunity for BKO to hopefully participate and provide his views.

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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: 18 January 2023