CNL

[2017] NSWCATGD 29

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

CNL [2017] NSWCATGD 29

Hearing dates:

4 August 2017

Date of orders:

04 August 2017

Decision date:

23 August 2017

Jurisdiction:

Guardianship Division

Before:

S Roushan, Senior Member (Legal)
F Duffy, Senior Member (Professional)
F N Given, General Member (Community)

Decision:

001: Guardianship Application

 

1. A guardianship order is made for Ms CNL.

 

2. The Public Guardian is appointed as the guardian.

 

3. This is a continuing guardianship order for a period of six months from 4 August 2017.

 

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

 

FUNCTIONS:

 

5. The guardian has the following functions:

 

a) Advocacy

 

To advocate generally for Ms CNL.

 

b) Legal services

 

To make decisions for Ms CNL in relation to access to legal services.

 

CONDITIONS:

 

6. The condition of this order is:

 

a) Standard Condition

 

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

 

002: Financial Management Application

 

7. The Tribunal consented to the withdrawal of the application made by Ms Y for a financial management order for Ms CNL.

8. The application for a financial management order is dismissed (clause 10, schedule 6, Civil and Administrative Tribunal Act 2013).

Catchwords:

GUARDIANSHIP – application for guardianship order – where person in immigration detention – Protection visa refused – risk of being deported from Australia – poor insight into her mental illness – need for advocacy and legal services functions – Public Guardian appointed

  FINANCIAL MANAGEMENT – application for financial management order – application withdrawn

Legislation Cited:

Civil and Administrative Tribunal Act 2013 (NSW), s 55(1)
Section 14 of the Guardianship Act 1987 (NSW), ss 3(1), 3(2), 4, 14(2), 15(3)

Cases Cited:

IF v IG [2004] NSWADTAP 3

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Ms CNL (the person)
Ms Y (applicant)
NSW Trustee and Guardian
Public Guardian (proposed guardian)

Representation:

Nil

File Number(s):

NCAT 2017/00222855

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

1. Ms CNL is 44 years old. She was born in South Africa and currently resides in South-eastern Sydney, NSW.

2. The Tribunal understands that Ms CNL’s application for a Protection visa was refused by the Department of Immigration and Border Protection (DIBP). Ms CNL has applied to the Administrative Appeals Tribunal (AAT) for a review of that decision. The Tribunal also understands that Ms CNL suffers from mental illness.

3. On 21 July 2017, the Tribunal received an application for guardianship by Ms Y, Health Nurse at the Asylum Seekers Centre (ASC), proposing the appointment of the Public Guardian as guardian for Ms CNL.

4. On 26 July 2017, Ms Y submitted an application for financial management with respect to Ms CNL.

The Hearing

5. The hearing was held on 4 August 2017. Ms CNL, Ms Y, and Ms Z, Caseworker, ASC, attended the hearing in person.

6. At the end of these Reasons for Decision is a list of the witnesses who attended the hearing. [Appendix removed for publication.]

Evidence

7. The evidence before the Tribunal included the following:

1. Ms Y’s applications. Ms Y stated that Ms CNL has been assessed by a registered medical practitioner and a psychiatrist to have impaired reasoning and judgment due to a ‘psychotic disorder’ that is affecting her ability to make informed decisions and provide legal instructions in relation to her pending legal matters. She currently has no access to work rights or financial assistance from the government. She is vulnerable and she may be at risk of homelessness.

2. A letter from Dr X, Consultant Psychiatrist. Dr X stated that, during their meeting, Ms CNL was unable to give a clear and coherent account of her history, either before coming to Australia or since her arrival. This was due to Ms CNL being 'emotionally and cognitively pre-occupied with delusional beliefs, which were religious and grandiose in quality, about her capacity since childhood of being able to foresee calamitous events, which are subsequently reported in the press'. Dr X formed the view that Ms CNL's reasoning and judgment were impaired by a psychotic disorder and that, as long as her mental state is impaired in this way, she would be unable to give instruction in a legal setting.

3. A letter from Ms Y, stating that Ms CNL was referred to the ASC on 21 June 2017. She was contacted and assessed on the following day. She informed Ms Y that she has the ability to foresee the future and had numerous connections with television personalities. Ms Y stated that Ms CNL is unwilling or unable to disclose any information regarding her relationships or who she lives with. She has recently received documentation from the AAT in relation to the review of a decision not to grant her a Protection visa. She is unable to provide evidence and does not have the capacity to give instructions due her mental state. She intended to seek support and evidence from numerous TV personalities to assist her in the matter. Ms CNL does not believe she has a mental illness and she is not compliant with medication.

THE GUARDIANSHIP APPLICATION

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

1. Is Ms CNL 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?

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

3. Who should be the guardian?

4. How long should the order last?

Is Ms CNL 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?

9. Section 14 of the Guardianship Act 1987 (NSW) (the 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' (s 3(1) of the 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; 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 (s 3(2), the Act).

10. Ms CNL’s presentation and evidence to the Tribunal at the hearing was consistent with the medical evidence submitted. In essence, she told the Tribunal that she had spoken on the telephone with a person from TVSN (a television shopping network) and, through this person, she had arranged for high profile celebrities and politicians, including the Premier of NSW, to contribute to or attend a ‘telethon’ on another TV network, raising more that $6 million in donations for a charity. She spoke with conviction about her beliefs and appeared to be disconnected from reality.

11. On the basis of the medical evidence before it, the Tribunal was satisfied that Ms CNL has a disability in the form of a mental illness preventing her from making important life decisions in an informed manner. 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?

12. The Tribunal must consider all of the following matters set out in s 14(2) of the Act before exercising its discretion to make a guardianship order:

1. The views (if any) of:

1. the person, and

2. the person's spouse, and

3. the person's carer and

2. The importance of preserving the person's existing family relationships, and

3. The importance of preserving the person's particular cultural and linguistic environments, and

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

13. These matters have no hierarchy or weighting and each is a mandatory consideration. However, the Tribunal must undertake a balancing exercise for its consideration of the matters in s 14(2) of the Act. When undertaking this task the Tribunal may be guided by the principles that are set out in s 4 of the Act (see IF v IG [2004] NSWADTAP 3).

14. In her evidence to the Tribunal, Ms Y reiterated the reasons articulated in her application for guardianship concerning Ms CNL’s need for a guardian. She stated that Ms CNL does not have the ability to provide legal instruction in relation to her application for a Protection visa, as well as the status of her legal stay or possible removal from Australia.

15. Ms Z told the Tribunal that Ms CNL’s review application to the AAT was late and outside of the relevant legal time limits, potentially putting the application outside of the AAT’s jurisdiction. The AAT has now sent a letter to Ms CNL, asking for comments in relation to the jurisdiction issue. Ms Z stated that the ASC has written to the AAT, requesting additional time pending the outcome of the application for guardianship.

16. The Tribunal pressed Ms Y in relation to the type of decisions a substitute decision-maker would be required to make in relation to Ms CNL. Ms Y stated that the DIBP had asked for specific information and Ms CNL had been unable to provide the appropriate response. She does not read her letters and places them, unopened, in a suitcase, because she finds the letters stressful. Ms CNL may face the prospect of being detained in immigrations detention in Australia or upon her arrival in South Africa. She would, therefore, require an advocate to assist her with visa related processes in order to prevent adverse consequences. She noted that Ms CNL often reverts to the same type of narrative when questioned by the DIBP in relation to specific visa related matters. She harbours the belief that if she were to disclose to the Minister for Immigration that she had raised money for charity she would be granted a visa. Ms Y stated that Ms CNL does not have the capacity to give sensible instructions. She believes that she can influence events by communicating to an employee of TVSN. She also believes that she should use legal representation to assist her with perusing matters linked to her delusions and not necessarily important visa related matters, including her Protection visa application.

17. Ms Z also stated that Ms CNL does not have the ability to provide instructions to a legal representative or to give relevant evidence before the AAT if she was required to do so. A guardian would be able to present Ms CNL’s situation more coherently and advocate for her in a manner that would enable her to seek the assistance that she requires.

18. Mr David Thomson from the Office of the Public Guardian told the Tribunal that, in circumstances where a person is rendered vulnerable due to their inability to understand processes and make poor choices in relation to those processes, the Public Guardian may be appointed to make substitute decisions. The Public Guardian, however, would not step into that role if the person is merely unhappy with unfavourable legal outcomes. Mr Thomson expressed the view that, if a person lacks the capacity to instruct a legal representative, a guardian is required to instruct on her behalf. He noted that Ms CNL appears to be prioritising issues that are not priorities for her and this would indicate that she cannot instruct.

19. The Tribunal was persuaded by the evidence before it that, due to her disability, Ms CNL does not have the capacity to make the different types of decisions that are involved in engaging legal representation, understanding legal issues relating to her Protection visa application or visa status in Australia or managing related proceedings, which could, potentially, have serious consequences for her. The Tribunal was satisfied that a guardian with a legal services function would be able to seek advice or information from a migration lawyer or agent, on behalf of Ms CNL, about a range of issues, including the status of the review in relation to her Protection visa application and the status of her legal stay in Australia. The Tribunal was also satisfied that Ms CNL would require a guardian to advocate on her behalf in relation to these issues.

20. Whilst Ms Y also referred to a potential need for decision making functions in relation to treatment for Ms CNL’s mental health issues, she acknowledged that she did not have sufficient information in relation to Ms CNL’s history or the type of treatment she would require. The Tribunal was not satisfied that Ms CNL requires a substitute decision maker with respect to medical and dental treatment, as well as accommodation, health care, and services.

21. Having carefully considered the evidence before it, in the circumstances of this case, the Tribunal formed the view that it should make a guardianship order. The Tribunal decided that a guardian should be appointed with legal services and advocacy functions.

Who should be the guardian?

22. 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 (s 15(3) of the Act).

23. There were no private guardians available and willing to be appointed as guardian. In the absence of any private guardians, having carefully considered the evidence before it, the Tribunal decided that it was appropriate to appoint the Public Guardian as guardian.

How long should the order last?

24. An initial guardianship order can be made for a period of up to one year from the date on which it was made. The Tribunal decided to make a reviewable order for six months to ensure that the Public Guardian would be able to undertake important decisions on Ms CNL’s behalf with regard to the functions specified in the Tribunal’s order.

FINANCIAL MANAGEMENT APPLICATION

25. At the hearing, Ms Y stated that she wished to withdraw her application for financial management orders. In the absence of any evidence in relation to Ms CNL’s finances and having regard to the principles in s 4 of the Act, with a view that the paramount consideration is the welfare and interests of Ms CNL, the Tribunal consented to the withdrawal of the application. Accordingly, the application for financial management orders was dismissed pursuant to s 55(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW).

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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: 12 January 2018