DBQ - [2024] NSWCATGD 24

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: DBQ [2024] NSWCATGD 24
Hearing dates: 19 July 2024
Date of orders: 19 July 2024
Decision date: 19 July 2024
Jurisdiction: Guardianship Division
Before: L Organ, Senior Member (Legal)
Dr B McPhee, Senior Member (Professional)
R K Richter, General Member (Community)
Decision:
1. A guardianship order is made for DBQ.
2. The Public Guardian is appointed as the guardian.
3. This is a continuing guardianship order for a period of four weeks from 19 July 2024.
4. This is a limited guardianship order giving the guardian(s) custody of DBQ to the extent necessary to carry out the functions below.
FUNCTIONS:
5. The guardian has the following functions:
(a) Accommodation
To decide where DBQ may reside.
(b) Health care
To decide what health care DBQ may receive.
(c) Medical/Dental consent
To make substitute decisions about proposed minor or major medical or dental treatment, where DBQ is not capable of giving a valid consent.
(d) Services
To make decisions about services to be provided to DBQ.
CONDITION:
6. The condition of this order is:
(a) Standard Condition
In exercising this role, the guardian shall take all reasonable steps to bring DBQ to an understanding of the issues and to obtain and consider her views before making significant decisions.

Catchwords:
GUARDIANSHIP – urgent application for guardianship order – 85-year-old subject person inpatient at hospital – request that Public Guardian be appointed with medical consent function – end of life care decisions – whether appointed enduring guardians are acting in the subject person’s best interests – allegations that enduring guardians have refused the administration of pain relief for subject person – finding that enduring guardians are not able to objectively assess the circumstances and make decisions in the best interests of the subject person – order made appointing NSW Public Guardian – enduring guardian appointments suspended – four week reviewable order

Legislation Cited:
Guardianship Act 1987 (NSW), ss 3(1)-(2), 4, 14,
14(2)(a)-(b), 14(2)(d), 15(3), 17(1); Pt 5

Cases Cited:
Application of Justice Health; Re a Patient (2011) 80 NSWLR 254; [2011] NSWSC 432
FI v Public Guardian [2008] NSWADT 263
P v D1 & Ors [2011] NSWSC 257

Texts Cited:
None cited.

Category: Principal judgment
Parties:
005: Guardianship Application
DBQ (the person)
OZK (applicant)
NOP (enduring guardian)
UAQ (enduring guardian)
Public Guardian
Representation: None.

File Number(s): NCAT 2020/00249549
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

APPLICATION FOR GUARDIANSHIP ORDER

Background

DBQ is an 85-year-old woman who is currently an inpatient at a public hospital (the Hospital). DBQ is usually a permanent resident at an aged care facility. Her children are NOP, UAQ (both of whom live in Queensland) and Mr Z who lives in Sydney. DBQ also has two stepdaughters, Ms Y and Ms X.
DBQ…

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 DBQ

Details

AGLC: DBQ [2024] NSWCATGD 24
Case: [2024] NSWCATGD 24
Decision Date: 19 July 2024

CaseChat Overview and Summary

The matter before the court involved an urgent application for a guardianship order concerning an 85-year-old individual, DBQ, who was an inpatient at a hospital. The application sought the appointment of the Public Guardian with the function of providing medical consent and making end-of-life care decisions, following allegations that DBQ's enduring guardians had refused to administer pain relief. The central legal issue was whether the enduring guardians were acting in DBQ's best interests, particularly in making decisions about her medical care. The court had to determine if the guardians were capable of objectively assessing DBQ's circumstances and making decisions that aligned with her best interests.

The court found that the enduring guardians were unable to objectively assess the situation and make decisions that were in DBQ's best interests. This finding was based on evidence suggesting that the guardians had refused to administer pain relief, which was deemed contrary to DBQ's best interests. Consequently, the court concluded that it was in DBQ's best interests for the Public Guardian to be appointed with the function of providing medical consent and making end-of-life care decisions. The enduring guardian appointments were suspended, and a four-week reviewable order was made.

The court's order appointed the Public Guardian as DBQ's guardian, granting the guardian functions over accommodation, health care, medical and dental consent, and services. The order stipulated that the guardian must take reasonable steps to understand DBQ's views before making significant decisions. This decision provided immediate relief for DBQ, ensuring that her medical care and end-of-life decisions would be made in her best interests.

Orders

Orders of the court

1. A guardianship order is made for DBQ.

2. The Public Guardian is appointed as the guardian.

3. This is a continuing guardianship order for a period of four weeks from 19 July 2024.

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

FUNCTIONS:

5. The guardian has the following functions:

(a) Accommodation

To decide where DBQ may reside.

(b) Health care

To decide what health care DBQ may receive.

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

(d) Services

To make decisions about services to be provided to DBQ.

CONDITION:

6. The condition of this order is:

(a) Standard Condition

In exercising this role, the guardian shall take all reasonable steps to bring DBQ to an understanding of the issues and to obtain and consider her 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:	DBQ [2024] NSWCATGD 24
Hearing dates:	19 July 2024
Date of orders:	19 July 2024
Decision date:	19 July 2024
Jurisdiction:	Guardianship Division
Before:	L Organ, Senior Member (Legal) Dr B McPhee, Senior Member (Professional) R K Richter, General Member (Community)
Decision:	1. A guardianship order is made for DBQ. 2. The Public Guardian is appointed as the guardian. 3. This is a continuing guardianship order for a period of four weeks from 19 July 2024. 4. This is a limited guardianship order giving the guardian(s) custody of DBQ to the extent necessary to carry out the functions below. FUNCTIONS: 5. The guardian has the following functions: (a) Accommodation To decide where DBQ may reside. (b) Health care To decide what health care DBQ may receive. (c) Medical/Dental consent To make substitute decisions about proposed minor or major medical or dental treatment, where DBQ is not capable of giving a valid consent. (d) Services To make decisions about services to be provided to DBQ. CONDITION: 6. The condition of this order is: (a) Standard Condition In exercising this role, the guardian shall take all reasonable steps to bring DBQ to an understanding of the issues and to obtain and consider her views before making significant decisions.
Catchwords:	GUARDIANSHIP – urgent application for guardianship order – 85-year-old subject person inpatient at hospital – request that Public Guardian be appointed with medical consent function – end of life care decisions – whether appointed enduring guardians are acting in the subject person’s best interests – allegations that enduring guardians have refused the administration of pain relief for subject person – finding that enduring guardians are not able to objectively assess the circumstances and make decisions in the best interests of the subject person – order made appointing NSW Public Guardian – enduring guardian appointments suspended – four week reviewable order
Legislation Cited:	Guardianship Act 1987 (NSW), ss 3(1)-(2), 4, 14, 14(2)(a)-(b), 14(2)(d), 15(3), 17(1); Pt 5
Cases Cited:	Application of Justice Health; Re a Patient (2011) 80 NSWLR 254; [2011] NSWSC 432 FI v Public Guardian [2008] NSWADT 263 P v D1 & Ors [2011] NSWSC 257
Texts Cited:	None cited.
Category:	Principal judgment
Parties:	005: Guardianship Application DBQ (the person) OZK (applicant) NOP (enduring guardian) UAQ (enduring guardian) Public Guardian
Representation:	None.
File Number(s):	NCAT 2020/00249549
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.