DMO v Public Guardian
[2018] NSWCATAD 268
•22 November 2018
Civil and Administrative Tribunal
New South Wales
Medium Neutral Citation: DMO v Public Guardian [2018] NSWCATAD 268 Hearing dates: 16 November 2018 Date of orders: 16 November 2018 Decision date: 22 November 2018 Jurisdiction: Administrative and Equal Opportunity Division Before: Hennessy LCM, Deputy President Decision: The Respondent's decision made on 29 June 2018 to withhold consent to the applicant to attend the next specialist medical appointment for the applicant's son with a psychiatrist on 20 November 2018 is affirmed.
Catchwords: ADMINISTRATIVE REVIEW - where Public Guardian has decided to withhold consent for mother of man with disabilities to attend psychiatric appointment – whether correct and preferable decision Legislation Cited: Administrative Decisions Review Act 1997 (NSW)
Guardianship Act 1987 (NSW)Category: Principal judgment Parties: DMO (Applicant)
Public Guardian (Respondent)Representation: Counsel:
DMO (self-represented)
M Higgins (Respondent)
Crown Solicitor’s Office (Respondent)
File Number(s): 2018/00339060 Publication restriction: The disclosure of the name of the applicant or her son is prohibited.
REASONS FOR DECISION
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These proceedings concern Mr X, a man with autism and an intellectual disability who lives in a supported group home. The Public Guardian has been appointed to make certain decisions on his behalf. A decision has been made that Mr X’s mother not be permitted to attend the next medical appointment with Mr X’s psychiatrist. Mr X has been seeing the psychiatrist twice a year since 2013. He specialises in treating people with autism and intellectual disabilities and has prescribed psychotropic medications which are reviewed during the consultations.
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The psychiatrist has stated that if either of Mr X’s parents accompany him to any of his consultations he will withdraw from Mr X’s treatment and care. His statement contains the following reason for that decision:
(Mr X’s) parents have a history of providing conflicting information during the consultations. I cannot effectively review (Mr X) and make the necessary adjustments to his psychotropic medications during the consultations if I must cross check the veracity of the information that is provided to me by (Mr X’s) parents.
If I am to continue as (Mr X’s) consultant psychiatrist, I propose to rely solely on information and observations about (Mr X’s) health, behaviour and medication that I receive from the support staff from (Mr X’s) group home who accompany him to the appointments.
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The Public Guardian provided the following background to its decision:
On 16 February,(the psychiatrist) informed the Public Guardian that he is unable to continue as (Mr X’s) treating psychiatrist if he cannot rely on factual information.
In previous consultations, (DMO’s) issues of concern have dominated the consultation as evidenced by his consultation reports.
(The psychiatrist) advised the Public Guardian he is “unable to establish the veracity of (DMO’s) views at the time of the consultation”. As a consequence, (the psychiatrist) stated that he has not “had a free hand” to make rational changes to the current medications given to Mr X.
Mr X is supported by the group home to attend the scheduled review with (the psychiatrist). The team leader (name deleted) prepares independent information and data collected over the last six months for (the psychiatrist) to review at the appointment.
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Mr X’s mother, who I will refer to as DMO, has applied to the Tribunal for the Public Guardian’s decision to be set aside. The issue is whether the Public Guardian’s decision to exclude DMO is the “correct or preferable” decision: Administrative Decisions Review Act 1997 (NSW), s 63(1). In determining that issue I must take into account several principles including that “the welfare and interests“ of Mr X “should be given paramount consideration”: Guardianship Act 1987 (NSW), s 4.
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The Public Guardian considers it paramount to Mr X’s welfare and interests to maintain continuity of care with the psychiatrist. If the decision is set aside the Public Guardian will need to find another psychiatrist who is prepared to allow DMO to be present during consultations.
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Mr X stays with his mother every second weekend and, until July 2018, she has accompanied him to appointments with the psychiatrist. DMO has great respect for the psychiatrist’s professional competence but queries how he can treat her son effectively without the benefit of her input. She makes two main points in support of her case.
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Firstly, she says her support allows her son to focus on her rather than the discussion between the psychiatrist and the representative from the group home. According to DMO, listening to that conversation which includes discussion of behavioural issues upsets Mr X.
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Secondly, the support staff from the group home change regularly and staff members do not know all of Mr X’s medical history nor are they up to date with changes in funding and service delivery. DMO can provide holistic information to the psychiatrist. She added that without an advocate at the psychiatrist’s appointments her son is in jeopardy of being exploited because he will not have all the relevant information.
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Some other points that DMO made were not directly relevant to the question of whether her presence would benefit her son.
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As a general proposition, it is in Mr X’s best interests for him to continue to be treated by the same psychiatrist who has been seeing him since 2013. The question is whether the absence of Mr X’s mother from those consultations means that it is no longer in his best interests to see that particular psychiatrist. In my view, it does not. While there may be some staff turnover, a representative from the group home is likely to be able to convey accurate information about Mr X’s emotions and behaviour. No doubt Mr X has a close relationship with his mother and values her support. Nevertheless, that support, and any extra information that DMO may be able to provide, is not so significant that it justifies ending the long standing relationship between the psychiatrist and Mr X.
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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: 22 November 2018
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