ERX

[2016] NSWCATGD 15

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	ERX [2016] NSWCATGD 15
Hearing dates:	22 March 2016
Date of orders:	22 March 2016
Decision date:	22 March 2016
Jurisdiction:	Guardianship Division
Before:	J Currie, Senior Member (Legal) M Wroth, Senior Member (Professional) S Rylands, General Member (Community)
Decision:	Guardianship order made; Public Guardian appointed for 12 months with limited accommodation and services functions.
Catchwords:	GUARDIANSHIP – application for a guardianship order – consideration of factors in section 4 of the Guardianship Act 1987 (NSW) – consideration of factors in section 14(2) of the Guardianship Act 1987 (NSW) – scope of functions to be given to guardian – need for coercive function
Legislation Cited:	Guardianship Act 1987 (NSW), ss 4, 4(a), and 14(2)
Category:	Principal judgment
Parties:	Miss ERX (the subject person) Mr TJD (the applicant) The NSW Public Guardian
Representation:	Nil
File Number(s):	61698
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 (s 65, Civil and Administrative Tribunal Act 2013 (NSW)).

REASONS FOR DECISION

GUARDIANSHIP APPLICATION

What the Tribunal decided

1. The Tribunal decided to make a continuing limited guardianship order for Miss ERX. The Public Guardian was appointed as Miss ERX's guardian for 12 months with the decision-making functions of accommodation and services.

Background

2. Miss ERX is a 49-year-old woman who is reported to have schizoaffective disorder compounded by drug use and to have a history of homelessness and multiple hospital admissions. She is presently a resident of an accommodation centre in central Sydney. The management of her estate has been committed to NSW Trustee and Guardian.

3. On 27 January 2016, the Guardianship Division of the NSW Civil and Administrative Tribunal (NCAT) received from Mr TJD, Case Manager at the Centre, an application which sought the appointment of a guardian for Miss ERX. The purpose of the Tribunal's hearing at Balmain on 22 March 2016 was to conduct the hearing of that application.

Parties and witnesses

4. The Appendix to these Reasons for Decision identifies the parties to the application and the witnesses who participated in the hearing. [Appendix removed for publication.]

Issues for determination by the Tribunal

5. The issues for determination by the Tribunal were:

1. Is Miss ERX 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?

3. If an order is to be made, who should be the guardian and what functions and authorities should the guardian have?

4. How long should the guardianship order last?

Participation in the hearing by Miss ERX and her views

6. Miss ERX attended the hearing and provided her views to the Tribunal. She told us that she did not like living at her current accommodation centre because there was no private space for her. She described herself as "not a people person". Miss ERX said that her general health had been good, although she recently had bronchitis, and she felt that her mental health was also good and that she took the medications which had been prescribed. She said that she took these medications by herself and without supervision, because she understood the medication and certainly did not need an alternate decision-maker for her medication. Miss ERX confirmed that she had been in hospital at Concord during the Christmas period in 2015.

7. Miss ERX also told us that she thought she did need someone to make decisions for her about her housing and accommodation.

THE TRIBUNAL'S ASSESSMENT OF THE EVIDENCE AND DETERMINATION OF THE ISSUES

Is Miss ERX 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?

8. The Tribunal received and considered a written report dated 19 January 2016 from the applicant Mr TJD, who is Miss ERX's case manager. Mr TJD also attended the hearing and provided additional information concerning Miss ERX. In his written report, Mr TJD confirmed that Miss ERX has a diagnosis of schizoaffective disorder, that she is non-compliant with her current medications and will not engage with mental health services. She was reported to have exhibited alcohol misuse and to present at the gate of the Centre most days highly intoxicated and abusive towards staff. In Mr TJD's view, due to Miss ERX's non-engagement with services over the years it has been difficult to obtain a clear picture of her support and housing needs.

9. Mr TJD also reported that on 18 September 2015, Miss ERX left Sydney to visit family in Regional NSW, but did not return until 22 December 2015, when she presented in a dishevelled state and was urinating and defecating in her clothing. On 23 December 2015, she was assessed by a crisis team and transported to a public hospital where she was commenced on lithium and serenace. However, since being discharged from hospital on 5 January 2016, Miss ERX has refused any attempts to have her lithium levels checked by a blood test. In the view of Mr TJD and his colleagues, Miss ERX is vulnerable to exploitation and is unable to make suitable accommodation and medical decisions.

10. At the hearing Mr TJD confirmed that more recently Miss ERX had been hesitant in seeing a Psychiatrist and that she was only 44% compliant with her medications.

11. Although we did not have the benefit of any written reports from a psychiatrist or other medical practitioners, and noted that Miss ERX asserted that she took the medication she needed and was in good health, in relation to this issue we preferred Mr TJD's objective and professional views to Miss ERX's own assertions, which were made on a lay and subjective basis, to the extent of any inconsistency.

12. On that basis we were satisfied that Miss ERX is someone for whom we could make a guardianship order because she has disabilities which prevent her from making at least some important life decisions.

Should the Tribunal make a guardianship order?

Legal basis for the Tribunal's analysis

13. The Tribunal has a discretion as to whether or not to make a guardianship order, even where it has concluded that the subject person is "a person who has a disability" for the purposes of the Guardianship Act 1987 (NSW). Not all people with a disability who are incapable of making life decisions should be regarded as being in need of a guardianship order and there are important principles in the Guardianship Act, particularly in ss 14(2) and 4 of that Act, which govern the circumstances in which the Tribunal should make an order.

The evidence

14. Miss ERX asserted firmly that she was able to understand the need for medication and could consent herself to medical treatment she needed. Mr TJD confirmed that Miss ERX had been homeless on several occasions over recent years. He said that since the filing of his application overall behaviour had improved, but that was because she had had some access to necessary medication and she needs more. Mr TJD asserted that the road to recovery for Miss ERX consisted of obtaining good accommodation, medical care and medication, and that her compliance with such a structure would enhance the prospects of her being able to live with greater independence. The present difficulty was that although the Centre would not terminate a client's accommodation other than in extreme circumstances, the accommodation offered by the Centre was temporary, so that there was a current need for important accommodation decisions to be taken for Miss ERX.

15. Mr TJD asserted that Miss ERX needs supported care and that this should be attempted on a trial basis. He said that his organisation had a transitional property in inner southern Sydney which may well be suitable for her, in that it provided drop in support during the daytime and this could include assistance in taking medication. We accepted Mr TJD's evidence in this regard as reliable and persuasive. We also accepted as genuine Miss ERX's expression of her need to live a private life and to retain some independence in taking the medication she needs.

The Tribunal's determination of this issue

16. In reaching a conclusion on this important issue we considered each of the factors prescribed by s 14 (2) of the Guardianship Act which appeared to be relevant. We also had regard to the general principles set out in s 4.

17. In considering the s 14(2) factors, we gave to due consideration to the views Miss ERX, but gave more substantial weight to the question of whether, as a practicable matter, the services which she needs could be made available to her without the need for a guardianship order. The evidence as analysed above persuaded that the services which Miss ERX needs, including particularly accommodation and support services, could not be made available without a guardianship order.

18. We also had regard to the guiding principles set out in s 4 of the Guardianship Act. The principles, other than those already considered by reference to s 14 (2), which appeared to have primary relevance to this case were the need to protect Miss ERX from neglect abuse and exploitation and the need to minimise any restrictions which are order might place on her freedom of action and freedom of decision. We also recognise the importance of encouraging Miss ERX, so far as possible to be self-reliant in her personal care and to encourage her, so far as possible, to live a normal life in the community. As s 4(a) of the Guardianship Act requires, we gave paramount consideration to Miss ERX's welfare and interests. Ultimately we were satisfied on the basis of the evidence as analysed above that Miss ERX's welfare and interests would best be preserved by the making of an order and that there is a current need for particular decisions to be made for her by a guardian. It followed that a guardianship order should be made.

What order should be made? Specifically what functions should the guardian have, who should be the guardian and what should be the duration of the order?

Decision-making functions

19. We accepted that if the functions under the proposed order were restricted to accommodation and services decisions and, as appeared likely, supported care accommodation could be made available to Miss ERX in the reasonably near future, that she should have the opportunity to demonstrate that she was self-reliant and capable of making her own treatment decisions, including decisions about her medication. It would follow that only accommodation and services functions should be authorised under the order. In reaching this view we gave considerable weight to Miss ERX's frank concession about her disabilities and her need for some treatment and medication. We were also influenced by the requirement of s 4 of the Guardianship Act, that we should restrict Miss ERX's freedoms as little as possible. On that basis we decided that Miss ERX's guardian should not have the health care or medical and dental consent functions. However, it was apparent from the evidence as analysed above, particularly the history of Miss ERX's homelessness and difficulty in making appropriate accommodation and services decisions, that there was a clear need for the guardian to have the accommodation and services functions.

20. We also concluded that there was insufficient evidence of a clear and present risk to Miss ERX to justify a further restriction on her freedoms by the imposition of a coercive authority to support accommodation decisions.

Identity of the guardian

21. Mr TJD indicated, and Miss ERX confirmed, that she had very little contact with family members. It was apparent that there was no private person who was willing to be considered for appointment as Miss ERX's guardian. On that basis we decided to appoint the Public Guardian

Duration of the order

22. Mr TJD sought an order reviewable in 12 months on the basis that it might take time to trial the proposed supported accommodation in inner southern Sydney, or to identify and implement an appropriate alternative accommodation solution. We agree that this was so. We therefore made an order of 12 months duration.

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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 September 2016