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

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.
CYS has a previous diagnosis of a mild to moderate intellectual disability and anxiety.
In March 1998, the Public Guardian was appointed as guardian and the Protective Commissioner was appointed as financial manager for CYS.
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…

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.

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Details

AGLC: CYS [2020] NSWCATGD 19
Case: [2020] NSWCATGD 19
Decision Date: 13 March 2020

CaseChat Overview and Summary

The case involved the review of a guardianship order for a person identified as CYS, with the Public Guardian seeking to have the existing guardianship order lapse. The matter was heard by the Court, which had to determine whether the guardianship order should be allowed to lapse and if so, whether it was the least restrictive option available. The Court also had to consider the ongoing need for oversight of CYS's medical and dental consent decisions and health care.

The legal issues before the Court centred on the appropriate balance between respecting CYS's autonomy and ensuring their health and welfare were adequately safeguarded. The Court had to assess whether the continuation of the guardianship order was necessary to protect CYS's interests and if there were any less restrictive alternatives available. The Court also needed to consider whether a private person could be appointed to act as a guardian instead of the Public Guardian.

The Court found that the continuation of the guardianship order was necessary to ensure that CYS's health and welfare were adequately safeguarded. The Court determined that the ongoing need for oversight of CYS's medical and dental consent decisions and health care justified the appointment of a guardian. The Court also found that no private person was available to act as a guardian and that the Public Guardian was the most appropriate person to take on this role. The Court concluded that the continuation of the guardianship order was the least restrictive option available and appointed the Public Guardian as the guardian for a period of 12 months.

The Court made an order appointing the Public Guardian as the guardian of CYS for a period of 12 months. The order gave the Public Guardian limited guardianship functions, including the ability to make health care decisions and give substitute consent for medical and dental treatment where CYS was not capable of giving a valid consent. The order also included a condition that the guardian must take all reasonable steps to bring CYS to an understanding of the issues and to obtain and consider their views before making significant decisions.

Orders

Orders of the court

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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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.