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

1. 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.

2. DBQ is reported to have a diagnosis of dementia with cognitive impairment.

3. On 5 October 2011, DBQ appointed her daughters, NOP and UAQ as her joint and several enduring guardians (the EGA).

4. DBQ has been the subject of previous applications and hearings before the Tribunal. Most recently, on 31 August 2022 the Tribunal, following review of the EGA, confirmed the appointment of NOP and UAQ as DBQ’s enduring guardians.

5. On 19 July 2024, the Tribunal received an urgent guardianship application from OZK, Consultant Physician at the Hospital. OZK has indicated concerns that DBQ has been risk feeding, and is now in respiratory failure and respiratory distress. As DBQ is reported to be nearing the end of her life, OZK sought the urgent appointment of the Public Guardian to make medical treatment decisions for her.

6. These Reasons for Decision arise from the hearing of the urgent application by OZK.

The hearing

7. At the end of these Reasons for Decision are lists of the parties to the application and the witnesses who attended the hearing. [Appendix removed for publication.]

8. The hearing was conducted on an urgent basis by phone on the day the application was received. This was due to concerns expressed by OZK that DBQ was very unwell and possibly nearing end of life. She said DBQ’s treating team had concerns around medical decision-making on DBQ’s behalf and specifically about the issue of administration of pain relief to DBQ, and refusal by NOP to agree to the administration by the treating team of morphine to DBQ.

9. DBQ did not take part in the hearing. We were informed by OZK and Dr W, a Medical Registrar at the Hospital, that DBQ was very unwell and would not be able to participate. Evidence, which we refer to in more detail below from the doctors who gave evidence, indicates that DBQ would not be able to understand the purpose of the hearing or contribute her views about the application. In this matter we found, for the reasons set out below, that there were decisions of sufficient urgency to persuade us that it was in DBQ’s best interests that we proceed to hear the application urgently.

10. The other parties to the hearing were informed by the registry of the hearing date and time by phone and email, and apart from the Public Guardian who is a statutory party, participated.

11. We decided there was a significant immediate risk to DBQ if we did not proceed with the hearing and that issues of procedural fairness could be addressed by consideration to the making of a short reviewable order.

What did the Tribunal have to decide?

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

1. Is DBQ 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 DBQ 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?

13. 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”: the Act, s 3(1). 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 (NSW); 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: the Act, s 3(2).

14. The applicant, OZK, who is a consultant physician, gave evidence that in her opinion DBQ lacks capacity to make informed decisions about important life decisions including her health care and medical treatment. OZK said DBQ has severe dementia on a background of Parkinson’s disease. DBQ was also noted by OZK to be bed-bound with a reduced level of consciousness with minimal verbal responsiveness. Other comorbidities that DBQ has were identified by OZK as being congestive heart failure and ischaemic heart disease. DBQ is also noted to be fully dependent on others for the provision of all of her care needs.

15. DBQ has severe dysphagia in the context of her Parkinson’s disease. During her admission, DBQ has been risk-feeding. That decision to proceed with risk-feeding was made with input from the medical team, dietitian and with the consent of her daughter. DBQ has now aspirated and developed pulmonary oedema and also has community acquired pneumonia. The clinical observations of the treating team indicate that DBQ is nearing the end of her life according to OZK.

16. We accepted the evidence of OZK and Dr W who presented as balanced, independent and credible witnesses. We were satisfied that DBQ has a disability, being dementia and cognitive impairment and as a consequence is at least partially incapable of managing her person. She is “a person in need of a guardian” for the purposes of the Act and is someone for whom we could make a guardianship order.

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

Legislative framework and some common law principles

17. 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 further guardianship order. These matters are the views (if any) of the person, and the person’s spouse, the person’s carer, and the importance of preserving the person’s existing family relationships, the importance of preserving the person’s particular cultural and linguistic environments, as well as the practicability of services being provided to the person without the need for the making of such an order. These matters have no hierarchy or weighting but are mandatory considerations.

18. In deciding whether to make a guardianship order, in addition to the factors listed in s 14(2) of the Act, we must have regard to the s 4 statement of principles in that Act. Among other things, this requires that in deciding whether to make a guardianship order, we must endeavour to restrict DBQ’s freedom of decision-making and freedom of action as little as possible, as far as possible enable her to be self-reliant in matters relating to her personal, domestic and financial affairs, and, at the same time, protect her from neglect, abuse and exploitation. The paramount consideration at all times is DBQ’s welfare and interests.

19. A number of issues are raised on the evidence available to us about decisions concerning medical treatment at the end of life and we consider it useful to set out briefly some relevant principles from the case law.

20. The law does not mandate that in all cases involving a person without decision-making capacity, a guardian must be appointed if decisions are to be made to either withdraw, withhold or continue life sustaining treatment. In FI v Public Guardian [2008] NSWADT 263 at [46], the Administrative Decisions Tribunal acknowledged that:

“[T]he law recognises that clinical judgements are involved, and that there is no need to continue treatments which are therapeutically ineffective, or are extraordinary, excessively burdensome, intrusive, or futile. The law does not assume that a patient’s best interests are served by extending the person’s life by whatever means are available and for as long as possible.”

21. In a decision of the Supreme Court of NSW, Application of Justice Health; Re a Patient (2011) 80 NSWLR 354; [2011] NSWSC 432, the same considerations that have been held to apply to the proposed “withdrawal” of treatment were applied in relation to the “withholding” of treatment ([6]-[8]). In that matter Brereton J said at [6]-[7]:

“A patient is not entitled to insist on being prescribed particular drugs or receiving particular treatment but to that treatment, which the medical practitioner, using reasonable care, judges is best for the patient in the circumstances.”

“It seems to me that it would be a rare case in which the Court would, by mandatory injunction, require a medical practitioner to render to a patient a particular form of medical treatment, which the practitioner genuinely and reasonably thought was not warranted or appropriate in the circumstances.”

22. The provisions of Pt 5 of the Act are directed to proactive medical interventions but where a medical practitioner proposes not to treat a patient having formed a clinical judgment that it is not appropriate to provide certain treatment, then no occasion arises for the operation of Pt 5 of that Act.

Overview of the evidence

23. Given the context in which the application has been made, it is relevant to consider some of the decisions that have been made by DBQ’s enduring guardians since she was admitted to hospital and interactions with members of DBQ’s treating team by them.

24. A summary of entries made in DBQ’s clinical records was provided to us in support of the application. This summary records a number of discussions between NOP and members of DBQ’s treating team regarding DBQ’s treatment and care.

25. On 2 July 2024, the family were noted, based on their religious beliefs, to want “everything done” including intensive care unit (ICU) and cardiopulmonary resuscitation (CPR) and intubation. On review by ICU on the same date, NOP was told that DBQ would not be taken to ICU or have CPR as DBQ would “certainly have a bad outcome from CPR in the unlikely event it was unsuccessful”.

26. On 3 July 2024, a review by the cardiology team noted NOP had said she did not think DBQ was unwell and will recover. It was explained to NOP that if DBQ did deteriorate she will not have her heart restarted or be intubated with the priority being to keep her comfortable. NOP is noted to have refused to acknowledge this as a possibility and said she believed DBQ will recover.

27. On 5 July 2024, a discussion with NOP by the general medical team about the distress and the undue suffering that CPR would cause to DBQ with NOP saying that she did not think her mother would need CPR.

28. On 8 July 2024, a general medical consult details that DBQ has a number of irreversible conditions including congestive heart failure. It is also recorded that “family are adamant that they do not want palliation and want continued active management”.

29. On 15 July 2024, an entry by Dr V says NOP was wanting the naso-gastric tube (NGT) that had been inserted for DBQ, to remain in place. This was because NOP wanted to see if with improved nutrition her mother could regain strength and might be able to swallow. The doctor informed NOP that a NGT was not a long-term option, noting that even without the NGT, DBQ was aspirating her own saliva.

30. On 16 July 2024, Dr V records that NOP believed that staff had removed the NGT tube and did not believe that DBQ did so herself. NOP is reported to have threatened legal involvement as a result. NOP is recorded as saying that “we don’t even starve dogs”. It was agreed for a trial oral intake. If DBQ pulled the NGT out again or there was no clinical improvement on objective measures, then the plan by the treating team was for removal after a week.

31. OZK gave evidence that DBQ is experiencing pain and said there were clear objective signs of this observed including DBQ grimacing when nursing staff tried to re-position her in bed. DBQ’s respiratory rate was also noted to increase markedly when she is moved or re-positioned as part of her necessary nursing care. She was recorded by nursing staff to have been heard calling out “Help me I’m in pain.” She also has urinary retention and will require pain relief to be administered for catheter insertion. OZK said another drug (Glycopyrolate) has been administered to DBQ to reduce the amount of fluid secretions in her lungs so that she does not experience so much discomfort from this. OZK said proposed treatment going forward would be small doses of morphine when required and possibly some Clonazepam to relax DBQ’s muscles prior to nursing staff moving/repositioning her to attend to her care needs.

32. OZK and Dr W said there had been some attempts to discuss palliative care with NOP, but this was rejected.

33. The written and oral evidence of the medical practitioners is that the proposal to administer morphine to DBQ has been based on a genuine desire to reduce her distress and experience of pain.

34. NOP has been closely involved in communicating with members of DBQ’s treating team since her admission. UAQ said she is supportive of NOP’s views as expressed to the treating team and in her evidence to the Tribunal.

35. NOP said her mother has been strongly opposed to the idea of taking pain relief for many years. She said her mother did not even like to take Panadols. She was also reported by NOP to be strongly against the use of Morphine with NOP saying DBQ had heard stories from friends and acquaintances about the real purpose of administration of Morphine being to hasten end of life. NOP said she is not against medical treatment for her mother and, in fact, wants her to be fully treated. She said her mother always believed there was hope and “didn’t want to give up”.

36. NOP denies that she has refused palliative care and asserted that no one has spoken to her about this. However, she acknowledged a conversation with Dr V in which the idea of palliative care was raised. When NOP expressed concern about the concept, Dr V did not pursue the topic.

37. NOP was adversarial in giving her evidence. For example, she was critical of OZK for ringing her in the middle of the night and informing her DBQ had aspirated and may not survive the night.

38. NOP also challenged the evidence given by Dr W that DBQ had been noted to be in considerable pain the night before the hearing and asserted she had been on the phone talking to her mother, reassuring her for a number of hours until the early hours of the morning. She said she did not hear any indication of DBQ being in pain. She queried the accuracy of observations in the medical records by nursing staff that her mother appeared to groan and grimace when being moved.

39. For his part, Mr Z said he does not believe his mother had any issues with having morphine. He said the views expressed by NOP and UAQ reflect their views, rather than DBQ’s views. It was clear from the interactions between NOP and UAQ on the one hand, and Mr Z on the other, that there is considerable conflict between them, not only to do with issues about DBQ, but also other matters that appeared unrelated to the matters under consideration. That conflict appears to be longstanding and is referred to in the Reasons for Decision of the Tribunal of 31 August 2022.

Consideration and findings

40. The starting point in this matter is that, at a time when she apparently had capacity to do so, DBQ appointed her daughters UAQ and NOP as her enduring guardians to make decisions in the event DBQ no longer had capacity to do so herself. That appointment must be carefully considered when deciding whether to make a guardianship order.

41. We are not satisfied that NOP and UAQ have given close consideration to the potential value of pain relief medication. We are of the view that in concluding that the medication morphine was being used for other purposes, NOP has not considered other explanations that it would be reasonable for a guardian to consider in the best interests of DBQ. Nor, in our view, have the enduring guardians objectively considered the proposed treatment plan outlined for DBQ more generally. They have focussed on the possible disadvantages of the use of certain medications and their belief that their mother would not want these administered. Underlying their views appears to be a reluctance to accept that DBQ may not recover from her illness.

42. OZK and Dr W are specialist medical practitioners with relevant expertise and their opinions regarding DBQ’s condition and prognosis should be accorded substantial weight in considering appropriate medical treatment for her. Taking into account their opinions, it was our view that it was in DBQ’s best interests to closely consider whether she should be treated to provide comfort and reduce pain and distress. We are of the view that NOP’s responses to the questions about this matter, as canvassed above, indicate that NOP has not objectively evaluated the advantages of reducing DBQ’s pain, discomfort and possible suffering as DBQ nears the end of her life. UAQ has also not demonstrated that she has done so and is broadly supportive of NOP’s position.

43. In reaching the conclusions set out above, we do not doubt or underestimate the love and concern that NOP, UAQ and Mr Z each have for DBQ, or their commitment to doing what they each believe is best for DBQ. However, we are of the view that where the decisions now required call for objective evaluation of the facts and options, NOP and UAQ have been unable to conduct that evaluation.

40. In reaching the decision to make a guardianship order, we considered the existence of the enduring guardianship appointment. It is not up to the Tribunal to form a view as to what treatment should be provided to DBQ. However, we are of the view that NOP and UAQ have not been able to objectively assess DBQ’s current circumstances and the proposals given by the medical practitioners involved in her care and treatment. We are of the view that there is a need to appoint a guardian who is able to conduct that objective assessment, taking into account the views of NOP, UAQ, Mr Z as well as DBQ’s treating team.

41. In considering the matters in s 14(2) of the Act to which we must have regard, there was nothing in the evidence that indicated making or not making an order would impact on DBQ’s existing family relationships (s 14(2)(b)). There were no particular cultural or linguistic considerations that appeared relevant to our decision. We acknowledge that DBQ is reported to be a member of a religious organization. However there were no particular issues drawn to our attention in this regard. After considering s 14(2)(d) of the Act and the practicability of services being provided without an order, we reached the conclusion that this factor neither weighs in favour of or against the making of an order. We consider a guardianship order would give DBQ’s welfare and interests paramount consideration: the Act, s 14(2)(a).

42. As the effect of a guardianship order being made will be to suspend the enduring guardian appointment made by DBQ for the duration of the order, we consider the same functions should be conferred on the guardian as given by DBQ to her enduring guardians.

43. The guardian should have the authority to make decisions about DBQ’s accommodation, health care, medical and dental consents and services.

Who should be the guardian and how long should the order last?

48. The Tribunal has to be satisfied that any person appointed as a private guardian meets the following requirements in accordance with s 17(1) of the Act. He or she must:

1. have a personality generally compatible with the personality of the person under guardianship;

2. have no undue conflict of interest (particularly financial) with those of the person; and

3. be able and willing to exercise the functions of the order.

49. In P v D1 & Ors [2011] NSWSC 257, the Supreme Court noted the importance of a proposed guardian being able to demonstrate insight and explain plans for how to act as guardian objectively and without conflict of interest.

50. 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: the Act, s 15(3).

51. Whether a person is able to exercise the functions conferred under a guardianship order requires consideration of whether the proposed guardian is practically able to discharge those functions. This requires consideration to be given to all relevant considerations, including the nature of the functions conferred, the type of decisions that will be, or are likely to be, required to be made on behalf of the subject person, the circumstances surrounding those decisions and the personal attributes of the proposed guardian. That assessment also requires consideration to be given to whether the proposed guardian is willing and able to exercise the functions conferred in a manner consistent with the principles in s 4 of the Act.

52. Mr Z proposed that he be appointed as DBQ’s guardian. NOP and UAQ are DBQ’s appointed enduring guardians.

53. We do not consider NOP or UAQ would be able to discharge the functions in the order in accordance with the principles in s 4 of the Act. NOP and UAQ as DBQ’s appointed enduring guardians have been unable to conduct objective evaluation of the facts and options for DBQ’s health care and treatment. There is a considerable conflict and animosity between Mr Z and his sisters. Given this fraught environment and the probability that in the foreseeable future sensitive decisions, such as whether palliative care is appropriate, may need to be made, we are not confident that either NOP, UAQ or Mr Z has the necessary objectivity and detachment to make decisions in a manner consistent with DBQ’s best interests.

54. Given the decisions that now need to be made about DBQ and the fraught family dynamics which were so clearly on display at the hearing, we consider that decisions on the issues identified in the order should be made by an independent person who can take a transparent and dispassionate approach to these issues. We, therefore, appointed the Public Guardian.

55. For the reasons given, we do not think NOP, UAQ or Mr Z, at this point in time, are able to exercise the functions of a guardian in a manner consistent with the principles in s 4 of the Act.

56. We decided to make a relatively short order of four weeks to be reviewed at the end of term to determine if there should be any variation to the terms of the order or if the order can lapse.

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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: 08 May 2025