DKT - [2018] NSWCATGD 52

NSW Civil and Administrative Tribunal

New South Wales

Case Name:	DKT
Medium Neutral Citation:	[2018] NSWCATGD 52
Hearing Date(s):	8 June 2018
Date of Orders:	8 June 2018
Decision Date:	8 June 2018
Jurisdiction:	Guardianship Division
Before:	R H Booby, Senior Member (Legal) Dr G Jamieson, Senior Member (Professional) L Porter, General Member (Community)
Decision:	1. A guardianship order is made for DKT. 2. TAT, of [Address removed for publication.], is appointed as the guardian. 3. NBT, of [Address removed for publication.], is appointed as the alternative guardian. 4. This is a continuing guardianship order for a period of three years from 8 June 2018. 5. This is a limited guardianship order giving the guardian(s) custody of DKT to the extent necessary to carry out the functions below. FUNCTIONS: TAT 6. TAT has the following function: a) Health care To decide what health care DKT may receive. CONDITIONS: 7. The condition of this order is: a) Standard Condition In exercising this role the guardian shall take all reasonable steps to bring DKT to an understanding of the issues and to obtain and consider his views before making significant decisions.
Catchwords:	GUARDIANSHIP – application for a guardianship order – subject person with profound intellectual and physical disabilities – resident of FACS group home – palliative care plan – Withdrawal of Active Resuscitation order – previous orders signed by mother as person responsible – where CPR would be burdensome, intrusive and cause serious injury – new FACS policy on resuscitation plans – cardiopulmonary resuscitation mandated under policy unless guardian appointed to approve not for resuscitation order – consideration of common law principles concerning withholding of treatment – consideration of NSW Ministry of Health Directive on Using Resuscitation Plans in End of Life Decisions – finding that decisions relating to the withholding of treatment can be made under a health care function – appointment of private guardians – order made.
Legislation Cited:	Guardianship Act 1987 (NSW), ss 3(1)-(2), 3D, 3F(2)(d), 4, 14, 14(2), 14(2)(d), 17(1), 18(1)(a), 18(1B); Pt 5
Cases Cited:	Application of Justice Health; Re a Patient [2011] NSWSC 432 C S and M Y v the Guardianship Tribunal and the Public Guardian (Supreme Court (NSW), Windeyer J, 29 November 1999, unrep FI v New South Wales Trustee and Guardian (No. 2) [2010] NSWADT 43 FI v Public Guardian [2008] NSWADT 263 IF v IG [2004] NSWADTAP 3 Re B [2011] NSWSC 1075
Texts Cited:	NSW Ministry of Health Policy Directive on Using Resuscitation Plans in End of Life Decisions FACS Resuscitation Plans – Common Scenarios, March 2018
Category:	Principal judgment
Parties:	002: Guardianship Application DKT (the person) OZE (applicant) TAT (carer, proposed guardian) Department of Family and Community Services (joined party) Public Guardian
Representation:	Solicitors: V H Nguyen for Family and Community Services N Danis as separate representative for DKT
File Number(s):	NCAT 2010/00439086
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…

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: DKT [2018] NSWCATGD 52
Case: [2018] NSWCATGD 52
Decision Date: 8 June 2018

CaseChat Overview and Summary

This case involved an application for a guardianship order on behalf of a person with profound intellectual and physical disabilities. The subject person, DKT, was a resident of a Family and Community Services (FACS) group home in Inner West Sydney. The dispute centred on the administration of cardiopulmonary resuscitation (CPR) in the event of DKT's medical emergency, given the palliative care plan in place. The previous orders, signed by DKT's mother as the person responsible, had withdrawn active resuscitation. However, a new FACS policy mandated cardiopulmonary resuscitation unless a guardian was appointed to approve a Not For Resuscitation order. The court was required to determine whether the decisions concerning the withholding of treatment fell within the health care function of the guardianship order and whether the new FACS policy was legally sound.

The court examined the legal principles surrounding the withholding of treatment, including the common law principles and the NSW Ministry of Health Directive on Using Resuscitation Plans in End of Life Decisions. The court found that decisions relating to the withholding of treatment could indeed be made under a health care function. The court also considered the new FACS policy and its alignment with legal advice, which emphasised that only appointed enduring guardians or guardians appointed by NCAT had the authority to direct the withholding of life-sustaining treatment. The court concluded that the new policy was necessary to ensure compliance with legal requirements and to mitigate potential legal risks. Given the evidence, the court determined that NSW Ministry of Health policies did not apply to FACS facilities outside a hospital setting.

Following its deliberations, the court made several orders. A guardianship order was issued for DKT, with TAT and NBT appointed as the primary and alternative guardians, respectively. The guardianship order was limited to a three-year period and included specific functions, such as the health care function to decide what health care DKT may receive. The court imposed a condition on the guardian to ensure that DKT's views were considered before making significant decisions. The outcome of the case was that the guardians were granted the authority to make decisions regarding the withholding of life-sustaining treatment, aligning with the palliative care plan and respecting DKT's wishes and best interests.

Orders

Orders of the court

1. A guardianship order is made for DKT.

2. TAT, of [Address removed for publication.], is appointed as the guardian.

3. NBT, of [Address removed for publication.], is appointed as the alternative guardian.

4. This is a continuing guardianship order for a period of three years from 8 June 2018.

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

FUNCTIONS: TAT

6. TAT has the following function:

a) Health care

To decide what health care DKT may receive.

CONDITIONS:

7. The condition of this order is:

a) Standard Condition

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

OZE said that at the time of the hearing DKT was not in good health mainly due to persistent vomiting which was preventing him receiving adequate nutrition. She said that it has been agreed with his family members that CPR would cause him harm and as a result it has been agreed that this should not be administered to him. Evidence and submissions given on behalf of FACS Mr Nguyen indicated that the FACS Performance Improvement section had recently undertaken a review of palliative care plans and Not For Resuscitation Orders held for residents of FACS supported accommodation across NSW. Advice was sought from FACS Legal and this led to the development and distribution of the new FACS Policy Documents issued in March 2018 by the FACS Deputy Secretary, Disability. As confirmed in an email dated 19 March 2018, a copy of which was provided to us and the other parties, this material was sent to the Directors of a number of FACS operated services including the Director of the group home in Inner West Sydney. The email advised, relevantly, that:(1)The FACS position aligns with the “emergency action principle”, that is, to render first-line emergency care in critical/emergency situations(2)FACS Legal have provided advice that if a person does not have capacity, only appointed enduring guardians or guardians appointed by NCAT or NCAT itself, have the authority to give direction to withhold life sustaining treatment. (3)NSW Health and NSW Ambulance have policy documents addressing the issue of the withholding of life sustaining treatment. However, such documents are to be applied by their respective staff only. These documents are not applicable to FACS staff as they appear not to meet the requirements set out by FACS Legal.(4)Based on FACS Legal advice, a clear and unambiguous instruction to FACS staff on the validity of Not For Resuscitation Orders is required. This is due to the current understanding and practice of staff and the potential legal risks associated in this area. Any instruction should ensure that FACS follows all legal requirements, and that frontline staff, including Nurses and Career Medical officers, adhere to their professional obligations.(5)As a matter of priority, Directors were asked to review all current documentation involving instructions around withholding CPR. The process of validating current plans (as valid or invalid) and the briefing of FACS group home staff was required to be completed by 20 April 2018. Mr Nguyen said that it is the view of FACS that NSW Ministry of Health policies regarding resuscitation plans and end of life decisions do not apply outside of a hospital and have no application in facilities such as the Inner West Sydney group home. The Tribunal lacked evidence from others, such as representatives from the Ministry of Health that would establish that the situation was other than Mr Nguyen submitted. In response to questions from the Tribunal, Mr Nguyen said that FACS accepts that a treating medical practitioner could form a view that future resuscitation efforts should not be made in respect of a patient, but that such a decision has effect only on the actions of that medical practitioner or persons immediately under the direction of that practitioner and cannot be used as the basis for decisions by FACS staff about the administration of life saving treatment.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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