BNT

[2022] NSWCATGD 18

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

BNT [2022] NSWCATGD 18

Hearing dates:

14 July 2022

Date of orders:

14 July 2022

Decision date:

14 July 2022

Jurisdiction:

Guardianship Division

Before:

L Organ, Senior Member (Legal)
M Bain, Senior Member (Professional)
L Stewart, General Member (Community)

Decision:

1. A guardianship order is made for BNT.

2. The Public Guardian is appointed as the guardian.

3. This is a continuing guardianship order for a period of four weeks from 14 July 2022.

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

FUNCTIONS:

5. The guardian has the following functions:

a) Accommodation

To decide where BNT may reside.

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

i) take BNT 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 BNT may receive.

d) Medical/Dental consent

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

e) Services

To make decisions about services to be provided to BNT.

AUTHORITIES:

6. The guardian has the following authorities:

a) Authority to override objections to medical treatment

i) The guardian may override the objection of BNT 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 BNT 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 at risk of absconding from a public hospital – hearing with no notice to the parties – hearing proceeding in the absence of the subject person – risk outweighed lack of notice – subject person diagnosed with Wernicke’s encephalopathy and Korsakoff’s dementia – need for medical treatment decisions to be made with authority to override objections – need for health care and services decisions – need for accommodation decisions with authority for others to bring accommodation decisions into effect – no private guardian available – Public Guardian appointed – four week reviewable order made.

Legislation Cited:

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

Cases Cited:

None cited.

Texts Cited:

None cited.

Category:

Principal judgment

Parties:

001: Guardianship Application

BNT (the person)
St Vincent’s Hospital Sydney Limited (applicant)
Public Guardian

Representation:

Nil.

File Number(s):

NCAT 2022/00196976

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. BNT is a 56-year-old man who is a patient at St Vincent’s Hospital (the Hospital). BNT usually lives in his Housing NSW unit in an inner-city suburb of Sydney. BNT was admitted to the hospital on 5 June 2021 after being found intoxicated and with a reduced Glasgow Coma Scale (GCS) score outside a property near his unit. During his admission to the hospital, staff have not been able to identify any family or other people involved in BNT’s life.

2. Throughout his admission BNT is reported to have displayed impaired cognitive functioning and to have been diagnosed as having Wernicke’s encephalopathy and Korsakoff’s dementia.

3. Applications for the appointment of a guardian and financial manager for BNT have been made by the Hospital.

4. An urgent request to bring forward the hearing of the guardianship application was made by the Hospital on the afternoon of 14 July 2022. This was as a result of BNT absconding from the hospital that day and there being serious concerns held for his safety and welfare by his treating team at the hospital.

The hearing

5. 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.]

6. The hearing was conducted on an urgent basis by phone by the Tribunal after hours. BNT did not participate and was not aware that the hearing was taking place.

7. 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 BNT’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.

8. 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.

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

What did the Tribunal have to decide?

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

• Is BNT 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 BNT 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?

11. The power to make a guardianship order can only be exercised if we are satisfied that BNT is a “person in need of a guardian”: the Act, s 14(1). 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 defined to include a person who is physically and/or psychologically disabled and/or of advanced age 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).

Evidence regarding disability

12. Dr Z, a Basic Physician Trainee and Clinical Pharmacology Registrar at the hospital provided a written report and also gave oral evidence.

13. Dr Z said BNT has been diagnosed as having severe Wernicke’s encephalopathy secondary to chronic alcohol misuse. A diagnosis of Korsakoff’s dementia has also been made. In addition, BNT has during his admission been found to have hepatocellular carcinoma, alcoholic cirrhosis with hepatic encephalopathy and untreated hepatitis C. Cognitive screening tests including a Mini-Mental State examination (MMSE) and a Montreal Cognitive Assessment (MOCA) on which he scored 8/30 and 6/30 respectively, indicate he has severe cognitive impairment. Despite treatment over the period of his 35-day admission, Dr Z said no discernible improvement in BNT’s cognition has been noted. No reversible causes for his cognitive impairment have been identified. It is considered by his treating team unlikely that further improvement will occur.

14. BNT is noted to have been unable to comprehend the complexity of his medical issues or even understand in simple terms the need for medical treatment. He is therefore unable to give informed consent to medical treatment he requires according to Dr Z.

15. In terms of his functional capacity a report available to us of an occupational therapist at the hospital, Ms Y, says BNT requires assistance with most self-care tasks including feeding, dressing, toileting and grooming. He is also said to require supervision with mobility including transfers. Ms Y says BNT’s ability to manage in the community without formal assistance and constant supervision is limited and he requires 24/7 supervision and care.

Findings

16. We accepted the evidence of the health professionals referred to above. That evidence, satisfied us on the balance of probabilities that BNT on account of his diagnosed cognitive impairment and medical conditions including Wernicke’s encephalopathy and Korsakoff’s dementia is restricted in several major life activities, including personal care and mobility, to such an extent that he requires support to live in the community (social habilitation). BNT is a “person with a disability” within the meaning of s 3(2) of the Act. In addition, we find that BNT is at least partially incapable of managing his person. It follows that BNT is a “person in need of a guardian” and the power to make a guardianship order can be exercised.

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 BNT’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 BNT’s welfare and interests.

18. Dr Z said BNT had absconded from the hospital that afternoon. He had subsequently been located by Police in Kings Cross, but the Police had declined to return him to hospital as there was no guardianship order in place enabling a guardian to authorise his return. Dr Z emphasised the life-threatening nature of BNT’s co-morbidities and his extreme vulnerability given the extent of his cognitive impairment. Dr Z said that if BNT is returned to hospital discharge planning would need to occur to identify suitable accommodation that would meet his care needs. Dr Z said the current view within the treating team is that BNT would not be able to safely return to live at his unit in inner-city Sydney and some form of supported accommodation will be required to meet his high-level care needs.

19. Dr Z said that currently the only medications BNT is taking are Thiamine, which has been given both intramuscularly and at times orally via tablets crushed into BNT’s food. He also has Melatonin to assist with sleep. During the course of his admission BNT has become quite unwell a couple of times with a reduced GCS score. Intensive intervention was required to stabilise BNT by the treating team. Dr Z said it is foreseeable that decisions will be required by a guardian about whether a palliative care approach to BNT’s care and treatment should be implemented. Early in his admission BNT was quite resistive at times to examinations and treatment but this behaviour had reduced more recently. It is unclear how he will respond to being bought back to hospital if this occurs.

20. The Duty Guardian on behalf of the Public Guardian, Mr X, participated in the hearing. He thought, based on the evidence he had heard, there would likely be a need for a guardian to make an accommodation decision not only about keeping BNT in hospital but also longer-term accommodation. He considered the guardian should have the authority to authorise others to implement decisions. He thought there was also a need to make decisions about health care, and medical and dental consents for BNT. Mr X requested the authority to override objections to medical treatment if that became necessary after less restrictive measures had been unsuccessful.

21. There was nothing in the evidence before us which indicated that appointing a guardian for BNT would have an impact on BNT’s existing family relations or of any particular cultural and linguistic considerations relevant to our decision. We were not satisfied that it was practicable for services to be provided to BNT unless a guardianship order is made given the extent of his cognitive impairment and that he is not able to make decisions about these for himself.

22. We consider that intervention is warranted and that it would best serve BNT’s welfare and interests for a guardianship order to be made. A guardian should have authority to make decisions about BNT’s accommodation for the purpose of both hospitalisation and long-term accommodation decisions. So that an appropriate level of supports can be put in place wherever he lives a services function is also required. Decisions about BNT’s health care, and about the provision of consent or withholding of consent to medical and dental treatment are likely to be required. A guardian therefore should have these functions.

23. We accept the evidence we have heard that BNT has absconded from hospital. We also accept the evidence of Dr Z that BNT has at other times during his admission attempted to leave unsuccessfully. Given his confusion and cognitive impairment we consider it is appropriate that the guardian be authorised to call upon others such as NSW Ambulance and Police to implement decisions about his accommodation. This will enable him to be taken safely or returned safely to where the guardian decides he should live or stay for the purpose of medical care and treatment.

24. It is in our view appropriate that the guardian has authority under s 46A of the Act to override BNT’s objections to medical treatment if considered necessary and other less restrictive measures have been unsuccessful. The Public Guardian has requested the inclusion of this authority. We are satisfied that any such objection will be made because of BNT's lack of understanding of the nature of, or reason for, the treatment: the Act, s 46A(2)

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

25. As there was no private individual available to appoint, we appointed the Public Guardian as BNT’s guardian.

26. We decided to make a short reviewable order of four weeks. This is because of the limited hearing we were able to undertake in the circumstances. Hopefully by the time of the next hearing BNT will be in a position to participate. We understand that the application for financial management is due to be heard in a week or so, however, it is unclear whether this will proceed as scheduled given the current situation with BNT. It should be considered whether the hearing of the financial management application could occur at the same time as the end of term review of the 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: 18 January 2023