CYS

[2020] NSWCATGD 19

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

CYS [2020] NSWCATGD 19

Hearing dates:

13 March 2020

Date of orders:

13 March 2020

Decision date:

13 March 2020

Jurisdiction:

Guardianship Division

Before:

S Roushan, Senior Member (Legal)

Decision:

The guardianship order for CYS made on 23 September 2018 has been reviewed. The order now is as follows:

1. The Public Guardian is appointed as the guardian.

2. This is a continuing guardianship order for a period of 12 months from 13 March 2020.

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

FUNCTIONS:

4. The guardian has the following functions:

a) Health care

To decide what health care CYS may receive.

b) Medical/Dental consent

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

c) Services

To make decisions about services to be provided to CYS.

CONDITION:

5. The condition of this order is:

a) Standard Condition

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

Catchwords:

GUARDIANSHIP – review of guardianship order – end of term review – whether guardianship order should be allowed to lapse – whether allowing guardianship order to lapse is “least restrictive” option – ongoing need for oversight of medical and dental consent decisions – ongoing need for health care decisions – no private person available – order made – public guardian appointed.

Legislation Cited:

Guardianship Act 1987 (NSW), ss 3(1)-(2), 4, 14, 14(2), 15(3)

Cases Cited:

DTX [2019] NSWCATGD 11

IF v IG [2004] NSWADTAP 3

MAQ [2016] NSWCATGD 70

ZGV v ZGT [2018] NSWCATAP 55

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Review of Guardianship Order

CYS (the person)
NSW Public Guardian (appointed guardian)

Representation:

Nil

File Number(s):

NCAT 1998/00066247

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 and Procedural History

1. CYS is 53 years old. She currently resides in a group home in west Sydney, managed by a housing and supported independent living provider. CYS is estranged from her mother, Ms QS, and two sisters, Ms US and Ms DS.

2. CYS has a previous diagnosis of a mild to moderate intellectual disability and anxiety.

3. In March 1998, the Public Guardian was appointed as guardian and the Protective Commissioner was appointed as financial manager for CYS.

4. On 5 September 2017, the Tribunal reappointed the Public Guardian as guardian for a period of two years, with the functions of accommodation, health care, medical and dental consent and services. On 23 September 2019, the Guardianship Order was reviewed and the Public Guardian was appointed for six months with the functions of health care, medical and dental consent, and services.

5. The matter before the Tribunal is the statutory end of term review of the Guardianship Order.

The Hearing

6. The hearing in relation to the review of the guardianship order was held on 13 March 2020.

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

Statutory Review of Guardianship Order

8. On reviewing the current guardianship order the Tribunal may renew, renew and vary the order or determine that the order is to lapse.

9. The questions to be considered by the Tribunal are:

1. Is CYS someone for whom the Tribunal could make an order because she continues to have a disability which prevents her from being able to make important life decisions?

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

3. Who should be the guardian?

4. How long should the order last?

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

10. 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 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': s 3(1) of the Act. A person with a disability is a person who is:

1. (a)    intellectually, physically, psychologically or sensorily disabled;

2. (b)    of advanced age;

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

4. (d)    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) of the Act.

11. When the previous order was made, the Tribunal found that CYS had a disability, being intellectual, and was unable to make important life decisions. There was no new evidence before me.

12. I was satisfied that CYS continues to have a disability, and that as a result of this disability, she is incapable of managing her own person and is unable to make important life decisions on her own behalf. She is a person for whom the Tribunal could make a further guardianship order.

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

13. 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;

2. the person’s spouse;

3. the person’s carer; and

2. The importance of preserving the person’s existing family relationships;

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.

14. 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).

15. CYS attended the hearing. She was generally agreeable with what was being put forward and did not express any particular views.

16. In a written report, dated 24 February 2020, the Public Guardian recommended the order to be lapsed. It was stated that CYS receives support services through her National Disability Insurance Scheme (NDIS) Plan, including accommodation, a day program, occupational therapy, behaviour support, and various independent living services. She also has the assistance of a Support Coordinator. It was stated that, during the previous six months, the Public Guardian has made a services decision on CYS’s behalf, being a decision to provide psychology services, but has not been approached to make any health care decisions or to provide consent to CYS’s medication.

17. This information was inconsistent with information provided to me at the hearing by Ms Z, Team Leader and Service Coordinator, at the group home. Ms Z told me that the Public Guardian had provided consent to CYS’s medication, being Oroxine, Citalopram, Quetiapine, on 29 January 2020. The Public Guardian had also given consent to CYS going on a holiday in mid-January 2020.

18. The Duty Guardian, Mr Ibrahim, was unable to explain the discrepancy. He contended, nevertheless, that, despite CYS being on ‘major medication, the question for the Tribunal is whether there are ‘least restrictive mechanisms’ that can be applied. When the person is on a regular medication without significant health issues it’s not unusual for the Public Guardian to recommend the least restrictive option. Mr Ibrahim was of the view that the Tribunal can give consent should it be required.

19. I referred to a written report by Ms Y, Psychologist, dated 23 February 2020, stating that CYS ‘has not received any psychology services to date except for this report to inform ongoing services [she] would benefit from receiving’. One of the services identified in the report is a Behaviour Support Plan (BSP). Ms Z explained that the medication CYS is on is to treat her mental health issues and not to manage he behaviour. There is a no need for restrictive practices and the BSP is intended to address the management of CYS’s anxiety. She said the Public Guardian had given consent to the BSP on 25 February 2020. However, consent is required in relation to the ‘ongoing’ services recommended by Ms Y.

20. Mr Ibrahim contended that CYS can be supported informally around her NDIS planning and whether she has sufficient understanding of ‘what she is signing for’. Ms Z stated that CYS’s support workers ordinarily explain everything to CYS. If matters are explained in very simple terms to her, she would be able to understand. However, Ms Z stated that CYS says ‘yes’ to everything.

21. In relation to medical consent, Ms Z noted the CYS does not understand the nature of the medication being prescribed and she is happy to consent to everything. She also noted that CYS is blind in one eye and she continues to attend an eye clinic, particularly when there is swelling in the other eye or any other condition that would put the eye at risk. In February 2020, CYS had to receive urgent treatment in relation to her eye. Mr Ibrahim was of the view that the group home can informally manage CYS’s ongoing medical needs in relation to her eye. I note that CYS does not have any family or friends who have contact with her on a regular basis and there is no one that others could turn to for substitute consent on her behalf as person responsible.

22. In relation to CYS’s NDIS plan, Ms Z stated that they are required to refer each of the services to the Public Guardian for their consent. Mr Ibrahim contended that this is a mere formality and that it appeared that CYS has sufficient capacity to give consent to the provision of services with support provided through her NDIS ‘service process’. He stated that if the informal support received by CYS proved to be insufficient, then guardianship could be considered again.

23. I was not persuaded by the Public Guardian’s views, which appeared to place much weight on CYS’s capacity to make her own decisions or service providers providing support to CYS in making important decisions regarding a range of matters. These views were advanced by the public Guardian on the basis that these mechanisms were the least restrictive options.

24. As stressed by the Appeals Panel of this Tribunal in ZGV v ZGT [2018] NSWCATAP 55, it would be improper to put undue emphasis on the idea that that the Tribunal should as a matter of general principle make ‘the least restrictive order’. The Tribunal’s considerations must not exclude the totality of the principles in s 4 of the Act and the mandatory considerations found in s 14(2) of that Act.

25. In this context, as noted by Deputy President Schyvens in DTX [2019] NSWCATGD 11, ‘the focus should be on making whatever orders will best promote [the subject person’s] welfare and interests, having regard to all of the matters outlined in ss 4 and 14 of the Act’. That decision cited with agreement comments made by Principal Member Britton in MAQ [2016] NSWCATGD 70 at [34], where she said:

…it is flawed logic to suggest that where the nature of the subject person’s decision-making disability is such that they are effectively unable to make decisions of significance on their own behalf, not being subject to guardianship order is the “least restrictive option”. Absent a guardianship order, decisions will continue to be made on behalf of Ms MAQ on an informal basis. The question is who will make those decisions.

26. The evidence before me did not suggest that decisions that are required to be made in relation to CYS, including consents that may need to be given in relation to her medical conditions, are infrequent. With regard to consent to medical treatment, the appointment of a guardian would ensure consistent oversight of CYS’s needs and prevent any unnecessary delays that may be caused by the requirement to make individual applications seeking consent from the Tribunal. With regard to health care, as noted in DTX:

[The] ability for individual consents to be obtained from the Tribunal does not encompass the role of the ‘health care function’, a function which the Tribunal may grant to a guardian. That function authorises the guardian to engage in forward planning for a person’s health care needs and to make decisions which go well beyond the binary process of giving or withholding consent to any treatment which may be recommended or prescribed by a medical practitioner, including, if required, decisions that involve the withdrawal of life-sustaining treatment.

27. 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 the Act, I was satisfied that a further guardianship order should be made. I decided that it was appropriate to renew the guardianship order, giving the appointed guardian the functions of health care, consent to medical and dental treatment and services.

Who should be the guardian?

28. 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. The Public Guardian was appointed as CYS’s guardian on the last occasion. As there was no private person available to be appointed as CYS’s guardian, I continued the appointment of the Public Guardian as her guardian.

How long should the order last?

29. On review, a guardianship order can be renewed for a period of up to three years from the date on which it was made. I was satisfied that CYS has permanent disabilities and is unlikely to become capable of managing her person in the near future. I was satisfied that, in the circumstances of this case, it was appropriate to make an order for a period of 12 months to enable the appointed guardian to continue to undertake the important decisions on CYS’s behalf with regard to the functions specified in the Tribunal’s order. The order will be reviewed at the end of this period.

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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 August 2020