DZT

[2022] NSWCATGD 7

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

DZT [2022] NSWCATGD 7

Hearing dates:

3 June 2022

Date of orders:

3 June 2022

Decision date:

03 June 2022

Jurisdiction:

Guardianship Division

Before:

R H Booby, Senior Member (Legal)
Dr P Landau, Senior Member (Professional)
J L Newman, General Member (Community)

Decision:

Review of Guardianship Order

The guardianship order for DZT made on 27 March 2022 has been reviewed. The order now is as follows:

1.   SBT, of [Address removed for publication.], is appointed as the guardian.

2.   This is a continuing guardianship order for a period of 12 months from 3 June 2022.

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

FUNCTIONS:

5. The guardian has the following functions:

a) Accommodation

To decide where DZT may reside.

b)   Health care

To decide what health care DZT may receive.

c)   Medical/Dental consent

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

d)   Services

To make decisions about services to be provided to DZT.

CONDITION:

6. The condition of this order is:

a) Standard Condition

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

Financial Management Application

Today’s hearing is adjourned to a day to be confirmed by the registry.

Catchwords:

GUARDIANSHIP – end-of-term review of guardianship order – whether a further guardianship order should be made – subject person suffered a stroke – cognitive impairment and physical conditions – subject person lacks insight into her condition – need for decisions to be made about accommodation, health care, medical and dental consent, and services – Aboriginal woman with a strong family network – in the subject person’s best interests to appoint a family member as her guardian – discord amongst family members – subject person supports the appointment of a private guardian – suitability of one of the proposed guardians – private guardian appointed – order made.

Legislation Cited:

Civil and Administrative Tribunal Act 2013 (NSW), ss 36(1), 51

Guardianship Act 1987 (NSW), ss 3(1)-(2), 3D, 3F(3)(d), 4, 14, 14(2), 15(3), 17(1), 33A(4)

Cases Cited:

C S and M Y v the Guardianship Tribunal and the Public Guardian (Supreme Court (NSW), Windeyer J, 29 November 1999, unrep and Re B [2011] NSWSC 1075

IF v IG [2004] NSWADTAP 3

P v D1 & Ors [2011] NSWSC 257

P v NSW Trustee and Guardian [2015] NSWSC 579

Texts Cited:

None cited.

Category:

Principal judgment

Parties:

002: Review of Guardianship Order

DZT (the person)
Public Guardian (appointed guardian)
SBT (carer)

003: Financial Management Application
DZT (the person)
Illawarra Shoalhaven Local Health District (applicant)
SBT (carer)

NSW Trustee and Guardian

005: Financial Management Application
DZT (the person)
VYT (applicant)
SBT (carer)
NSW Trustee and Guardian

Representation:

L Carriage, separate representative for DZT

File Number(s):

NCAT 2022/00088170

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

1. DZT is an 80-year-old Aboriginal woman who, at the time of the hearing, was a patient at a public hospital.

2. On 27 March 2022 the Tribunal conducted an after-hours hearing and made a guardianship order appointing the Public Guardian for two months to make decisions for DZT about her accommodation, services, health care and medical/dental treatment.

3. On 21 April 2022 the Tribunal ordered that DZT be separately represented in respect of the review of the guardianship order.

4. On 2 May 2022 the Tribunal received an application seeking the appointment of a financial manager for DZT. The applicant was the Illawarra Shoalhaven Local Health District per Ms Z, a social worker.

5. On 24 May 2022 the Tribunal received an application from VYT, who is DZT's daughter in law, seeking the appointment of a financial manager for DZT.

The hearing

6. Due to restrictions necessitated by the COVID-19 pandemic the Tribunal's hearings are currently being conducted by way of telephone and, where possible, video communication.

7. At the end of these Reasons for Decision is a list of witnesses who participated in the hearing. [Appendix removed for publication.]

8. During the hearing Ms Y, a social worker at the public hospital represented the Illawarra Shoalhaven Local District in the application.

Preliminary matter - parties

9. Section 3F(3)(d) of the Guardianship Act 1987 (NSW) (“the Act”) provides that the parties to review of a guardianship order include a person who has the care of the person who is the subject of the order. The same applies in respect of parties to a financial management application: the Act, s 3F(5)(d).

10. Section 3D of the Act provides guidance as to who should be considered as a person who has the care of another. It states:

3D circumstances in which a person "has the care of another person"

(1)   For the purposes of this Act, the circumstances in which a person is to be regarded as "having the care of another person" include (but are not limited to) the case where the person, otherwise than for remuneration (whether from the other person or any other source), on a regular basis:

(a)   provides domestic services and support to the other person, or

(b)   arranges for the other person to be provided with such services and support.

(2)   A person who resides in an institution (such as a hospital, nursing home, group home, boarding-house or hostel) at which he or she is cared for by some other person is not, merely because of that fact, to be regarded as being in the care of that other person, and remains in the care of the person in whose care he or she was immediately before residing in the institution.

(3)   In this section: "remuneration" does not include a carer's pension.

11. At the commencement of the hearing we sought to clarify who should be considered a party to the hearing as a 'carer'. That is, who amongst DZT's family members had the care of DZT prior to her being hospitalised.

12. Mr X had been identified as the person who was responsible for providing care and support for DZT prior to her hospitalisation but during the hearing he advised that he had not been acting in that role just prior to DZT entering hospital.

13. SBT indicated that she had been responsible for providing services and support to DZT prior to her hospitalisation. It was agreed by others that this was the case. The Separate Representative, Ms Carriage, was of the view that SBT should be considered as party to the hearing as a person who fitted the description and there was no objection to that proposal by the Public Guardian. There was no objection by VYT or the Illawarra Shoalhaven Local Health District to SBT being recognised as a party to the hearing of their financial management applications.

14. Having considered these matters we removed Mr X as a party to the hearings and recognised SBT as a party due to her role as DZT's carer.

FINANCIAL MANAGEMENT APPLICATIONS

Adjournment of the hearing of the applications

15. The Tribunal may adjourn proceedings to any time and place: Civil and Administrative Tribunal Act 2013 (NSW), s 51. When considering whether to adjourn proceedings, the Tribunal has regard to the guiding principle of the Civil and Administrative Tribunal Act: which is to facilitate the just, quick and cheap resolution of the issues in the proceedings (s 36(1)).

16. Having conducted the review of the guardianship order we were without time to embark on the proceedings in respect of the applications for financial management. Accordingly we adjourned the hearing of those applications to a date to be fixed.

STATUTORY REVIEW OF GUARDIANSHIP ORDER

What did the Tribunal have to decide?

17. On reviewing the current guardianship order the Tribunal may renew, renew and vary the order or determine that the order is to lapse.

18. The questions to be considered by the Tribunal are:

• Is DZT someone for whom the Tribunal could make an order because she continues to have a disability which prevents her from being able to make important life decisions?

• Should the Tribunal make a further guardianship order and if so, what order should be made?

• Who should be the guardian?

• How long should the order last?

19. Section 4 of the Act provides that it is the duty of everyone exercising functions under this Act with respect to persons who have disabilities to observe the following principles:

1. the welfare and interests of such persons should be given paramount consideration,

2. the freedom of decision and freedom of action of such persons should be restricted as little as possible,

3. such persons should be encouraged, as far as possible, to live a normal life in the community,

4. the views of such persons in relation to the exercise of those functions should be taken into consideration,

5. the importance of preserving the family relationships and the cultural and linguistic environments of such persons should be recognised,

6. such persons should be encouraged, as far as possible, to be self-reliant in matters relating to their personal, domestic and financial affairs,

7. such persons should be protected from neglect, abuse and exploitation,

8. the community should be encouraged to apply and promote these principles.

Is DZT someone for whom the Tribunal could make a further order because she continues to have a disability which prevents her from being able to make important life decisions?

20. Section 14 of the Act provides that the Tribunal may make a guardianship order for a person if it is satisfied that 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)

21. The term "social habilitation" is not defined in the Act. In P v NSW Trustee and Guardian [2015] NSWSC 579, Lindsay J considered its meaning in the context of s 3(2) of the Act, at [303]:

The expression "social habilitation" (in the context of references to "disability", "restricted", "major life activities" and the word "requires") may be taken to refer to a need for services to help a person to be, or become, able to function normally in community with others.

22. The order made on 27 March 2022 was made in an after-hours hearing without access to written evidence. The Reasons for Decision of the Tribunal upon making the order indicate the following:

1. The application was brought by Ms W, RN, a nurse at the public hospital, after DZT's son, Mr V and his wife, VYT had discharged DZT from hospital against medical advice. DZT did not participate in that hearing.

2. Ms W indicated that she had known DZT from the latter's previous hospital admissions. She said that some three to four weeks prior to the hearing DZT had a stroke that had resulted in her hospital admission. She had also developed a urinary tract infection and had some delirium. She also described DZT as having extensive co-morbidities, including possible dementia, and diabetes.

3. Ms W indicated that she had been authorised to speak on behalf of the treating team that included Dr U, a rehabilitation consultant, and Dr T, a Registrar, and that their view was that DZT lacked capacity to make her own decisions about her medical treatment and whether she needed to remain in hospital.

4. During that hearing, DZT's grandson, Mr X's partner, Ms S, were of the view that DZT's cognition had been declining in recent years and she needed assistance about her medication and other care.

5. The Tribunal was satisfied that DZT was a person for who it could make a guardianship order.

23. At the review of the order we were assisted by a number of reports from health and medical practitioners.

24. In a letter addressed To Whom it May Concern and dated 11 April 2022, Dr T provides the following information:

1. Following a stroke on 5 March 2022 DZT had significant deficits including "profound hemianopia and severe short term memory impairment" and she also had a reduced sense of balance. Her short-term memory loss was such that she is unaware of her stroke and her vision impairment. She could retain information about her stroke for only a few minutes.

2. DZT is not able to lay down new memories, and as result, she is not able to develop any compensatory techniques for her visual impairment and reduced balance.

3. The combined effect of DZT's conditions is that she needs supervision at all times. Due to her falls risk she needs a person to assist her with mobility and for self-care activities such as showering and dressing. She would also require assistance and supervision for activities such as cooking and cleaning.

25. In a Health Professional Report form dated 13 April 2022 Dr T provides the following additional information:

1. DZT is vulnerable to harm because she will not be able to voice any concerns on her own behalf because she will be unable to recall events in her recent past.

26. In a neuropsychological assessment dated 14 April 2022, Mr R, a Clinical Neuropsychology Registrar, provides the following information based on assessments of DZT on 1 April 2022 and 8 April 2022:

1. DZT showed marked impairment when learning new verbal information and was not able to recall any verbal information after a delay of a few minutes. The use of prompts and cues did not assist her. She was slightly more able to learn and recall context-rich visual information but her ability to recall that information after a delay of several minutes was unreliable.

2. DZT's memory deficits affected her ability to complete testing, with her forgetting instructions and becoming confused.

3. DZT has poor insight into her condition and her memory impairment prevents her from learning and utilising appropriate strategies to mitigate the risks. Her ability to mobilise and carry out her activities of daily living is severely compromised.

4. DZT's severe anterograde memory deficit results in profoundly impaired insight into her present health condition. She is unable to state the reason for her hospitalisation and needs to be reminded about her stroke and resultant impairments. As a result she is not able to understand the risks of discharge without appropriate 24/7 supervision and assistance.

5. Due to DZT's memory impairment she is not able to retain information for long enough to weigh up the pros and cons of different discharge options.

27. In a report dated 14 April 2022, Ms Q,   an occupational therapist, provides the following information:

1. DZT has been provided with a memory card on her tray table in hospital to assist her to recall why she is in hospital. However this has been unsuccessful.

2. DZT has no insight into how the stroke has affected her.

3. DZT needs 24/7 supervision by one person for activities including showering, dressing and one person to assist with meal preparation, shopping and domestic tasks.

4. DZT also needs level access in her home and bathroom with level access and potential to install grab rails in the shower and toilet, and adequate space for a shower chair.

5. The home needs to have space for the use of 4-wheeled frame.

28. During the hearing Dr P advised that DZT continued to experience memory impairment resulting from the stroke and that this was unlikely to resolve.

29. DZT said on a number of occasions during the hearing that she was not disabled and believed that she could return to live in her own home.

30. Ms Carriage indicated that she relied on the evidence of the health and medical practitioners and was satisfied that DZT was a person for whom the Tribunal could make an order.

31. We took DZT's views into account but we placed weight on the consistent evidence of the health and medical practitioners as that of adequately qualified practitioners with experience of DZT's condition and her presentation. We were satisfied on the basis of that evidence that, as a result of the stroke, DZT now has a cognitive impairment and physical conditions that restrict her ability to manage her person, and also restrict her ability to gain insight into those impairments and to develop adequate strategies to deal with the consequences of those impairments. We are satisfied that as result she needs some supervision and assistance in living in the community. Having formed these views, we were satisfied that DZT is a person for whom we could make another guardianship order.

Should the Tribunal make a further guardianship order and if so, what order should be made?

32. 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:

1. the views (if any) of:

1. the person;

2. the person's spouse;

3. the person's carer; and

2. the importance of preserving the person's existing family relationships;

3. the importance of preserving the person's particular cultural and linguistic environments; and

4. the practicability of services being provided to the person without the need for the making of such an order.

33. These matters have no hierarchy or weighting and each is a mandatory consideration. However, the Tribunal must undertake a balancing exercise for its consideration of the matters in s 14(2) of the Act. When undertaking this task the Tribunal is guided by the principles that are set out in s 4 of the Act (see IF v IG [2004] NSWADTAP 3).

34. We were in receipt of a report from Ms O, Principal Guardian, and during the hearing, Mr N, of the office of the Public Guardian, spoke to the report. The information and views of the Public Guardian were to the following effect:

1. No decisions had been made by the Public Guardian since the order was made.

2. Mr V and Mr X had each made accommodation proposals to the Public Guardian. Mr X had withdrawn his application (we note that during the hearing Mr X indicated that he wanted his proposal considered). The occupational therapy report that had been prepared was not site-specific to either proposal, and there would need to be an assessment made of the suitability of any accommodation proposed for DZT. The Public Guardian was of the view that there was a need for a substitute decision maker to decide about DZT's post discharge accommodation.

3. There are services decisions that need to be made by a substitute decision maker. These include decisions about homecare services if DZT were to return to a domestic situation. There could be a need for residential aged care respite accommodation whilst suitable long-term accommodation was arranged, and an ACAT assessment would be required.

4. There had been no health care or medical/dental decisions required for DZT and she was receiving only minor medications. The hospital had advised that a person responsible could consent to medical treatment where necessary. Mr V had proposed that he take on that role and said that he had previously fulfilled that role.

35. In respect of DZT's post discharge accommodation needs, in her report dated 11 April 2022 Dr T indicates that in her view the following are required:

1. Full 24-hour supervision because of her lack of awareness of her stroke deficits;

2. One person assistance when she stands, walks, showers, dresses, prepares meals and for shopping and other domestic tasks;

1. Home accessibility features and equipment including house with no steps, a bathroom with level access and a shower chair, grab rails in the bathroom and sufficient space for a walking frame;

2. Assistance with medication management.

36. SBT said that DZT had previously undergone an ACAT assessment and had been receiving services at her home. However her needs had now increased. SBT was aware that the services provider was in a position to offer increased hours of assistance. In a report dated 2 May 2022, Ms Z, social worker, advised that DZT had been receiving a Level 3 homecare package under which she received assistance on three days per week for attendance at appointments and social groups and some domestic assistance.

37. During the hearing Dr P indicated that DZT was under the care of a rehabilitation physician. Ms M suggested that DZT should be seen by Professor L, a geriatrician. The Tribunal explained that a decision about seeking referrals is a decision that could be made by a guardian with a health care decision-making function.

38. During the hearing it was evident that there were different views amongst family members about where DZT should live, and particularly as to whether she should remain in the Shoalhaven/Illawarra region or whether she should be discharged to live with Mr V and VYT in another area regional NSW. In her report Ms Z indicates that family members have not been able to agree about discharge arrangements.

39. Ms Carriage indicated that in discussions with her, DZT was of the view that she did not need a guardian. DZT had said that she wanted to return to her own home and she understood that she might need increased services to do so. Mr V submitted that DZT had meant that she wanted to return home as a first preference, but if she was not able to do so, she had said that she was keen to go to live with him and VYT. During the hearing DZT repeated that she wanted to return to her home, where she believed that she could look after herself and her children could visit. She said that she would also like to spend time with her son Mr V.

40. Ms M, VYT and Mr X each expressed the view that DZT's condition was improving and that her memory had improved. Mr V was of the view that DZT was able to live at her own home, but was of the view that when she not able to do so, she should live with him. As explained during the hearing, it is not up to this Tribunal to assess DZT's accommodation options. That is the role of a guardian appointed with an accommodation decision.

41. It was agreed by all parties that there were guardianship decisions to be made for DZT about her accommodation and services. Ms Carriage agreed that this was the case and she was of the view that there was need for a guardian to be appointed to make decisions about DZT's accommodation and services. She submitted that due to intrafamilial discord there was also a need for a guardian to be appointed to make decisions for DZT about her health and medical treatment.

42. We were satisfied that there are decisions to be made about DZT's accommodation. DZT is not able to make those decisions as she lacks insight into her condition and to the need for extensive supports at her place of accommodation. We were also of the view that the accommodation decision cannot be made informally because of the considerable discord amongst family members and alternative proposals about which family members have not been able to agree. We are also satisfied that if DZT is to return to a domestic situation she will need a substantial services provision. As she lacks insight into her needs we are satisfied that she is not able to make her own services decisions and, as formal assent to services will be required, we are satisfied that services cannot be determined informally.

43. The Public Guardian was of view that there may be no need for health care decisions to be made for DZT. However the Reasons for Decision of the Tribunal that made the previous order indicate that the application was made in the context of removal of DZT from hospital against medical advice. In our view this suggests that there is a need for a substitute decision maker to be authorised to make decisions about DZT's health care. In our view that need is also indicated in the proposals put during the hearing for DZT's referral to a geriatrician.

44. The Public Guardian has suggested that medical/dental decisions might be made by a person responsible. Section 33A(4) of the Act provides guidance as to who might be considered a person responsible in accordance with a hierarchy. The section defines the following, in descending order, as the person responsible:

33A Person responsible

…

(a)   The person's guardian, if any, but only if the order or instrument appointing the guardian provides for the guardian to exercise the function of giving consent to the carrying out of medical or dental treatment on the person,

(b)   the spouse of the person, if any, if:

(i)   the relationship between the person and the spouse is close and continuing, and

(i)   the spouse is not a person under guardianship,

(c)   a person who has the care of the person,

(d)   a close friend or relative of the person.

45. This Tribunal does not determine who is the person responsible. That is a decision to be made at the time consent for treatment is sought. However, we note that whilst Mr V has suggested that he should be considered as the 'person responsible', it was agreed at the commencement of the hearing that the person who had care of DZT prior to her current admission was SBT. We also noted that the Reasons for Decision of the Tribunal upon making the order in March 2022 indicate that at that time, Mr X was considered by the hospital to be the person responsible.

46. In our view there is likely to be a lack of consensus as to who should be considered the 'person responsible' and that could cause delay or confusion about consent to DZT's medical treatment. We are satisfied that it is in her best interests to clarify who has responsibility for making medical/dental decisions for DZT by appointing a guardian to do so.

47. We are required to consider the effect of a guardianship order on DZT's existing family relationships and her cultural and linguistic heritage. These matters were discussed during the hearing. It was clear during the hearing that DZT has a good relationship with an extensive family network, each member of whom is concerned to ensure that her needs are met and her welfare and best interest promoted. There is some intrafamilial conflict and not all parties to the conflict can be appointed as decision makers. However we are confident that appointing a guardian will not interfere with the close relationship that DZT has with her family members.

48. There was also discussion during the hearing about DZT's cultural and linguistic heritage. It was put both that she has existing cultural and church connections in the Shoalhaven/Illawarra area and that she has cultural and Country connections to another area in regional NSW. These two sets of connection are reflected in the two accommodation proposals set out during the hearing. An accommodation decision is likely to involve a choice between the alternative proposals and to that extent could affect DZT's cultural connections with each place of belonging. We would expect all views to be taken into account by a guardian making any guardianship decision. We are of the view that an accommodation decision will need to weigh up the effects on DZT's cultural connections and to preserve her family and community relationships.

49. Having considered the matters set out above, we were satisfied that there was a need to appoint a guardian to make decisions for DZT about her accommodation, services, health care and medical/dental treatment.

Who should be appointed as the guardian?

50. 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. S/he 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.

51. In deciding whether a person is able to undertake the role of guardian, the Tribunal must consider whether the proposed guardian is able, having regard to the circumstances, to exercise the functions in accordance with the principles set out in s 4 of the Act (C S and M Y v the Guardianship Tribunal and the Public Guardian (Supreme Court (NSW), Windeyer J, 29 November 1999, unrep and Re B [2011] NSWSC 1075, [66]).

52. 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.

53. 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).

54. The Supreme Court has held that:

“the proper meaning to be given to the section is to read it as saying that the Public Guardian should not be appointed in circumstances in which an order can properly be made in favour of another person. That requires not only that the person be willing, reliable and responsible, but that the appointment will result in the policy considerations and principles set forth in the Act being given effect (W v G [2003] NSWSC 1170, [25]).”

55. Mr X, Mr V, VYT and SBT each proposed that they be appointed as the guardian.

56. Mr V expressed a view that as DZT's only son, and as the eldest sibling, he had right to make lifestyle decisions for DZT.

57. Mr X opposed the appointment of Mr V and said that he was afraid of Mr V. He indicated that his former request to withdraw his application was prompted by his fear of Mr V.

58. VYT expressed the view that she would be able step outside the family conflict to make an independent decision as DZT's guardian. She said that Mr X was the only family member who does not speak to her and Mr V, and that she and Mr V would include him in decisions.

59. SBT said that she has provided care for DZT. In respect of the conflict between Mr X and Mr V she indicated that she would communicate with both of them. In respect of DZT's accommodation she was of the view that DZT should return to her own home, but if she were not able to do so she would follow the recommendations of the occupational therapist regarding the support required.

60. DZT did not express a preference as to which family member she would prefer to be appointed as the guardian. She said that she loved each of her children and grandchildren and her nieces. When asked if she would choose a decision maker she said, "they are all the same".

61. The Reasons for Decision of the Tribunal upon making the guardianship order indicated that Mr V had removed DZT from hospital and that DZT was removed against medical advice and that he had refused to wear a mask when in hospital environs. We put to Mr V that these actions might suggest that he had not acted in the best interests of DZT. In relation to these matters, Mr V provided the following explanation:

1. He and his family had exemptions from wearing COVID-19 protection masks.

2. He and his family had travelled to visit DZT in hospital and were denied entry. When they tried to talk to DZT through the window, hospital staff closed the window blinds. The next day he and his family returned to visit DZT for her birthday. They were refused consent to visit her the following day and therefore decided to remove her from the hospital.

3. Having removed DZT from the hospital he and VYT arranged for a Radio doctor to examine DZT. That doctor advised that she should be readmitted to hospital and arranged her admission to another public hospital. She was later transferred from that other public hospital to the latest public hospital.

62. Mr X submitted that the involvement of the Radio doctor occurred only after he called police to intervene in DZT being removed from hospital. SBT agreed that police had been called. She and VYT agreed that prior to the arrival of the police arrangements had been made by the Radio doctor for DZT's return to hospital and they took DZT to the Shellharbour hospital.

63. The Reasons for Decision of the Tribunal upon making the order indicate that SBT was present when DZT was removed from the hospital, and during that hearing Mr X expressed the view that SBT was fearful of Mr V and would do what he wanted.

64. We understand that the removal of DZT from hospital was in the context of heightened emotions and concern about lack of access to her. These events may have been exacerbated by COVID-19 precautions. However in our view, objectively, it was not in the best interests of DZT to be removed from hospital against medical advice. We are satisfied that this is demonstrated by the fact that a subsequent medical examination indicated that she should be returned to hospital. We are not satisfied that in removing DZT from hospital, Mr V and VYT prioritised DZT's welfare and best interests.

65. We noted that whilst SBT was present when DZT was removed from hospital, it appears that she was not the instigator of the removal, and she was instrumental in DZT being returned to hospital. It appeared to us that she might be in a position to bridge the conflict between the parties. SBT had lived with DZT prior to her hospitalisation and we were satisfied that SBT understood DZT's support and medical needs. Mr V and VYT supported the appointment of SBT as the guardian and Mr X was not opposed to the appointment though he expressed some reservations based on his concerns about possible aggression from Mr V and SBT's inability to withstand his pressure.

66. On behalf of the Local Health District, Ms Y expressed concern about the possible appointment of SBT as the guardian as she had not been able to prevent the previous removal of DZT from the hospital.

67. When we explained to DZT the possibility of appointing SBT as the decision maker, DZT reiterated that she is able to make her own decisions and that she had trust in all her family members. She said she had "no qualms" about the proposed appointment of SBT.

68. Ms Carriage supported the appointment of SBT as the guardian on the basis that the family members appeared to support the proposal.

69. We took into account the concerns of the Local Health District, but also took into account that at the time DZT was removed from the hospital there was no clearly defined decision maker with authority to make decisions about her care and accommodation. We were of the view that with that authority and with the best interests of DZT central to decision making, SBT would be in a position to make a decision if such a situation recurred.

70. DZT is an Aboriginal woman with a strong family network. In our view it is appropriate and in her best interests that, if at all possible, a family member be appointed as her guardian. Despite the intrafamilial conflict and the diverse views about decisions regarding DZT's lifestyle, it is our view that SBT is ready and able to make the decisions set out in the guardianship order and will do so in accordance with DZT's welfare and best interests whilst assisting to retain her family relationships. There was no evidence of any conflict of interests between SBT and DZT.

71. Having reached the decisions noted above, we appointed SBT as the guardian.

How long should the order last?

72. On review, a guardianship order can be renewed for a period of up to three years from the date on which it was made. We made the order for 12 months only as we were of the view that in that time discharge arrangements should be made and implemented and DZT's care arrangements settled and it will then be appropriate to review the need for the order.

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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: 18 July 2022