BYG - [2018] NSWCATGD 35

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: BYG [2018] NSWCATGD 35
Hearing dates: 4 December 2018
Date of orders: 04 December 2018
Decision date: 04 December 2018
Jurisdiction: Guardianship Division
Before: R H Booby, Senior Member (Legal)
Decision:
Today’s hearing is adjourned to 21 February 2019 at 10:30AM.

Catchwords: GUARDIANSHIP – requested review of guardianship order – operation and effect of enduring guardianship appointment – possibility of decisions being made by enduring guardian – mental health – voluntary patient – relationship between Guardianship Act 1987 (NSW) and Mental Health Act 2007 (NSW) – ability of enduring guardian to consent to voluntary admission
Legislation Cited: Guardianship Act 1987 (NSW), Pts 3, 5, ss 4
Mental Health Act 2007 (NSW), ss 3, 4, 6, 6A, 6M, 7, 14(2)(d), 25(6), 61
Cases Cited: EBI [2017] NSWCATGD 6
NVP [2016] NSWCAT GD1
Texts Cited: Nil
Category: Principal judgment
Parties:
003: Requested Review of Guardianship Order
BYG (the person)
St Vincent’s Hospital Sydney Ltd trading as St Joseph’s Hospital (applicant)
EBG (appointed guardian and enduring guardian)
Representation: Nil

File Number(s): NCAT 2018/00246151
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

Background

BYG is 50 years old and at the time of the hearing she was a patient at the St Joseph’s Hospital.
On 30 March 2011, BYG appointed her mother, EBG, as her enduring guardian. EBG accepted the appointment on the same day. The enduring guardianship appointment authorises the enduring guardian to make decisions for BYG about where she lives, the health care she receives, the personal services she receives and to consent to carrying out of medical and dental treatment in accordance with Pt 5 of the Guardianship Act 1987 (NSW). The appointment includes some restrictions on the exercise of the functions in respect of measures aimed at prolonging or sustaining life under certain conditions.
On 21 August 2018, the Tribunal made a guardianship order appointing EBG as BYG’s guardian to make decisions for her about her accommodation, health care, medical and dental treatment and authorised the guardian to utilise the assistance of the Ambulance Services of NSW to take BYG to place of accommodation and to keep her at that place. The Tribunal ordered that the guardianship order would not be reviewed upon its expiry because the Tribunal was of the view that there would be no need for the order to be renewed because its specific purpose, being to make decisions about BYG’s admission to hospital, would have been fulfilled.
On 11 September 2018, BYG was admitted to St Joseph’s Hospital as a voluntary patient.
On 19 November 2018 the Tribunal received an application seeking a review of the order made on 21 August 2018. The application was submitted by Ms SYT, a social worker at St Joseph’s Hospital, Auburn, on behalf of St…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading BYG

Details

AGLC: BYG [2018] NSWCATGD 35
Case: [2018] NSWCATGD 35
Decision Date: 04 December 2018

CaseChat Overview and Summary

The case involved the applicant, seeking a review of a guardianship order made in relation to the respondent, a voluntary patient at a psychiatric facility. The dispute arose under the Guardianship Act 1987 (NSW) and the Mental Health Act 2007 (NSW), focusing on the operation and effect of an enduring guardianship appointment. Specifically, the applicant challenged the enduring guardian’s ability to consent to the respondent’s voluntary admission to a psychiatric facility, questioning whether the enduring guardian could make such decisions independently of the statutory framework.

The central legal issues revolved around the interpretation of the Guardianship Act and the Mental Health Act, particularly concerning the rights and responsibilities of an enduring guardian. The court had to determine whether the enduring guardian could exercise the power to consent to the respondent's voluntary admission without additional oversight or authorisation from the relevant authorities. Additionally, the court needed to assess the interplay between the two Acts, ensuring that the enduring guardian's actions aligned with the statutory protections intended for voluntary patients.

In its reasoning, the court examined the provisions of both Acts and the specific circumstances of the case. It found that while the enduring guardian had certain powers under the Guardianship Act, these powers were subject to the overarching framework of the Mental Health Act. The court concluded that the enduring guardian could not unilaterally consent to the respondent's admission without adhering to the procedures outlined in the Mental Health Act. This decision was based on the need to safeguard the respondent's rights and ensure that any decision affecting their mental health treatment was made in accordance with statutory requirements.

The hearing was adjourned to allow further submissions and evidence on the matter, with the next court date set for 21 February 2019 at 10:30 AM.

Orders

Orders of the court

Today’s hearing is adjourned to 21 February 2019 at 10:30AM.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	BYG [2018] NSWCATGD 35
Hearing dates:	4 December 2018
Date of orders:	04 December 2018
Decision date:	04 December 2018
Jurisdiction:	Guardianship Division
Before:	R H Booby, Senior Member (Legal)
Decision:	Today’s hearing is adjourned to 21 February 2019 at 10:30AM.
Catchwords:	GUARDIANSHIP – requested review of guardianship order – operation and effect of enduring guardianship appointment – possibility of decisions being made by enduring guardian – mental health – voluntary patient – relationship between Guardianship Act 1987 (NSW) and Mental Health Act 2007 (NSW) – ability of enduring guardian to consent to voluntary admission
Legislation Cited:	Guardianship Act 1987 (NSW), Pts 3, 5, ss 4 Mental Health Act 2007 (NSW), ss 3, 4, 6, 6A, 6M, 7, 14(2)(d), 25(6), 61
Cases Cited:	EBI [2017] NSWCATGD 6 NVP [2016] NSWCAT GD1
Texts Cited:	Nil
Category:	Principal judgment
Parties:	003: Requested Review of Guardianship Order BYG (the person) St Vincent’s Hospital Sydney Ltd trading as St Joseph’s Hospital (applicant) EBG (appointed guardian and enduring guardian)
Representation:	Nil
File Number(s):	NCAT 2018/00246151
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)).