EKX

[2020] NSWCATGD 49

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

EKX [2020] NSWCATGD 49

Hearing dates:

9 July 2020

Date of orders:

9 July 2020

Decision date:

09 July 2020

Jurisdiction:

Guardianship Division

Before:

J C Simpson, Senior Member (Legal)

Decision:

The guardianship order for EKX made on 16 July 2019 has been reviewed. The order now is as follows:

1. The Public Guardian is appointed as the guardian.

2. This is a continuing guardianship order for a period of six months from 9 July 2020.

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

FUNCTIONS:

4. The guardian has the following functions:

a) Accommodation

To decide where EKX may reside.

b) Health care

To decide what health care EKX may receive.

c) Medical/Dental consent

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

CONDITION:

5. The condition of this order is:

Standard Condition

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

RECOMMENDATION:

6. The Tribunal recommends:

The guardian should seek to ensure appropriate medical and dental reviews occur, clarify what treatments EKX needs and decide whether an application should be made for the guardian to have authority to override EKX’s objections to treatment.

Catchwords:

GUARDIANSHIP – end-of-term review of guardianship order – whether a guardianship order should continue – subject person refusing health care – ongoing need for accommodation decisions to be made – recommendation that appropriate medical and dental reviews occur – applicant to consider whether authority be sought to override objections to treatment – Public Guardian appointed for a further six months - order made.

Legislation Cited:

Nil

Cases Cited:

Nil

Texts Cited:

Nil

Category:

Principal judgment

Parties:

002: Review of Guardianship Order

EKX (the person)
Public Guardian (appointed guardian)

Representation:

Nil

File Number(s):

NCAT 2019/00204935

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. Mr EKX is a 66-year-old man with a history of schizophrenia who now lives in an aged care facility at regional NSW suburb A. In July 2019, the Tribunal appointed the Public Guardian to make decisions for EKX about his accommodation, health care and consents and services. EKX had been admitted to the aged care facility after major problems with maintaining his previous home and becoming homeless but EKX was strongly opposed to being in the facility.

2. EKX’s financial affairs have been under financial management since 1997.

3. Now, I had to review the guardianship order and decide whether to make a further order.

What did I have to decide?

4. I had to decide:

1. Does EKX continue to have a disability which prevents him from being able to make some important life decisions?

2. Should I make a new guardianship order and if so, what order should I make?

3. Who should be the guardian?

4. How long should the order last?

Decision

5. There was no new evidence to dispute previous finding of the Tribunal that EKX had schizophrenia and was at least partially incapable of managing as person.

6. The Public Guardian reported that EKX continued to want to leave the facility and live more independently. The guardian recommended that guardianship continue to ensure EKX remained living in suitable supported accommodation.

7. In the hearing, EKX spoke reasonably positively about the aged care facility but also said that he would like to live in a unit in regional NSW suburb B, regional NSW suburb A, or perhaps in regional NSW suburb C. He only acknowledged the need for a small amount of support. He did not see the need for guardianship.

8. Dr Z, general practitioner, and Ms Y clinical nurse consultant told me about EKX needing support including in prompting for showering and dealing with urinary incontinence. Also, EKX’s acceptance of medications varies. He has refused medical assessments or treatments including by a urologist, a cardiac specialist, a dentist and in relation to a growing basal cell carcinoma and another growth on his face.

9. In view of the ongoing issues about where EKX should live and about his need for access to health care that he is refusing, I was clear that I should make a further guardianship order in relation to accommodation, health care and consents.

10. Sitting as a single member, I did not have the power to consider whether the guardian should be given authority to override EKX’s objections to treatment. In any case, this issue needs balanced consideration by both health professionals and the guardian and, if appropriate, the Tribunal.

11. I recommended that the guardian should seek to ensure appropriate medical and dental reviews occur, clarify what treatments EKX needs and decide whether an application should be made for the guardian to have authority to override EKX’s objections to treatment.

12. In the absence of an alternative, I reappointed the Public Guardian.

13. The further guardianship order is for six months. At the review hearing in six months or earlier if needs be, the Tribunal can consider any request that the guardian have authority to override EKX’s objections to treatment.

14. In the meantime, if appropriate, an application can also be made to the Tribunal to override EKX’s objection to particular treatment.

Who took part in the hearing?

15. The following people attended by phone:

1. Mr EKX

2. Ms X of the Public Guardian

3. Dr Z, general practitioner

4. Ms Y, clinical nurse consultant at the aged care facility

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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