ESI

[2015] NSWCATGD 13

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	ESI [2015] NSWCATGD 13
Hearing dates:	23 February 2015
Date of orders:	23 February 2015
Decision date:	23 February 2015
Jurisdiction:	Guardianship Division
Before:	R Booby, Senior Member (Legal)
Decision:	Guardianship order reviewed and confirmed with no variations
Catchwords:	GUARDIANSHIP – requested review – consent to major medication – no person responsible – lack of material change
Legislation Cited:	Guardianship Act 1987 (NSW)
Category:	Principal judgment
Parties:	Mr ESI (the person under guardianship) Mrs NBI (the spouse of Mr ESI) The Public Guardian (the guardian of Mr ESI and the applicant)
File Number(s):	56895
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

What the Tribunal decided

1. The Tribunal reviewed the previous guardianship order concerning Mr ESI and confirmed that order with no variations.

Background

2. Mr ESI is 86 years old and lives in a nursing home in Regional NSW. His wife, Mrs NBI, continues to live in their marital house in Regional NSW.

3. On 23 October 2014 the Tribunal considered an application by Miss UCD, who is a social worker, seeking the appointment of a guardian and financial manager for Mr ESI. The Tribunal committed Mr ESI's affairs to management by the NSW Trustee and Guardian and made a guardianship order appointing the Public Guardian for a period of 12 months to make decisions for Mr ESI about his health care and to consent to his medical and dental treatment.

4. On 13 November 2014 the Tribunal received a request to review the guardianship order. The applicant was Mrs LDC of the Office of the Public Guardian and in her application she states that there is no current need for the order.

5. The hearing conducted on 23 February 2014 was the review requested by Mrs LDC.

The hearing

6. At the end of these Reasons for Decision are lists of the parties to the application and witnesses who attended the hearing [appendix removed for publication].

What did Tribunal have to decide?

7. On reviewing the current guardianship order the Tribunal may confirm, vary, suspend or revoke the order.

8. There was no suggestion by the applicant or others who attended the hearing that Mr ESI has ceased being a person with a disability that prevents him from being able to make important life decisions and is therefore no longer a person for whom the Tribunal could make an order. Accordingly the Tribunal was satisfied that Mr ESI remains a person for whom the Tribunal could make an order.

9. In conducting the review the Tribunal the questions to be decided by the Tribunal were:

• Should the guardianship order continue?

• What functions should now be given to the guardian?

• Who should be the guardian?

Should the guardianship order continue and if so, what functions should the guardian have?

10. When considering whether to make a further guardianship order and what order should be made the Tribunal is required to take into account as far possible the views of Mr ESI and of his carers as well as the importance of preserving his family relationships and cultural or linguistic environment and must also consider the practicability of services being provided to him in the absence of an order. The Tribunal is also required to act in accordance with the principles set out in section 4 of the Guardianship Act 1987 (NSW) which requires that the following additional matters be considered in respect of Mr ESI:

• His welfare and interests are to be given paramount consideration;

• His freedom of decision and freedom of action should be restricted as little as possible;

• He should be encouraged as far as possible to live a normal life in the community;

• He should be encouraged as far as possible to be self-reliant in matters relating to his personal and domestic affairs;

• He should be protected from neglect, abuse and exploitation.

11. The Tribunal considered these matters in relation to Mr ESI's circumstances.

12. Whilst Mr ESI was present by way of a teleconference during the hearing he did not actively participate in the hearing and the Tribunal was not able to ascertain his views.

13. In a note to the Tribunal, a Tribunal Officer states that Mrs NBI is also subject to a guardianship and financial management order and that the daughter and son-in-law of Mr ESI have advised the aged care facility that they do not wish to be contacted regarding Mr ESI.

14. The published Reasons for Decision relating to the making of the guardianship order on 23 October 2014 note the following matters:

• Mr ESI was receiving Risperidone, a major medication for which consent is required.

• The Acting Deputy Care Services Manager at the aged care facility was unable to say who could consent to this medication.

• Mrs NBI is recorded as Mr ESI's 'person responsible' but was described as being confused and anxious. She said she did not know what medications her husband was taking or the purpose of the medication. Both Mrs NBI and the Acting Deputy Care Services Manager agreed that Mr ESI needs a guardian to make decisions about his health care and medical treatment.

• Mrs NBI was critical of the treatment provided to Mr ESI by his GP, Dr Z, who remained Mr ESI's general practitioner following his admission to the facility.

• At the time of the hearing each of the participants in the hearing, with the exception of a Principal Guardian with the Office of the Public Guardian, supported the proposed appointment of a guardian for Mr ESI.

• In making its decision to appoint a guardian, the Tribunal took into account the view of the Public Guardian and also took into account that Mr ESI was receiving a major medication and that Mrs NBI was dissatisfied with Mr ESI's general practitioner.

15. In a report to the Tribunal dated 19 February 2015 Mrs LDC provides information and opinion to the following effect:

• Mr ESI receives adequate health care services at the aged care facility where he is reviewed regularly, or as required, Dr Z who has been his doctor for many years.

• The Public Guardian understands that Mr ESI has a good rapport with Dr Z and there are no evident concerns.

• The Public Guardian has not received any proposals to change Mr ESI's GP and is of the view that Mr ESI would not benefit from such a change.

• Mr ESI's health is currently stable and he is now in a healthy weight range.

• Mr ESI's care plan is reviewed every three months by the facility and the Public Guardian is satisfied that his health is well monitored by Dr Z and the facility staff.

• The Public Guardian is satisfied that Mr ESI is not being denied access to appropriate health care and therefore is of the view there is no current need for a substitute decision maker with a healthcare function.

• Mr ESI is receiving a major medication that requires a substitute decision maker for consent purposes. However consent could be sought directly from the Guardianship Division of NCAT and Dr Z has provided the view to the Public Guardian that Mr ESI's current medication regime and is likely to remain unchanged and that he is aware that a one-off application for medical consent could be submitted directly to the Tribunal.

16. During the hearing the Tribunal noted that the review hearing was not in the nature of an appeal against the decisions of the Tribunal in making the order on 23 October 2014 and enquired what had changed since the order was made. Mrs LDC said that there have been no changes since the order was made. Mrs LDC also said that there had been no application for consent to Mr ESI's medical treatment.

17. During the hearing Mrs NBI expressed her ongoing and marked dissatisfaction with the treatment provided to Mr ESI by Dr Z.

18. In response to a question from the Tribunal the Deputy Director of Nursing at the Aged Care Facility said that Dr Z is elderly and is past retirement age but continues to treat his own patients whilst not accepting new patients. She said that given Dr Z's circumstances it is possible that Mr ESI could require a new GP. She also said that in the absence of a guardian there would be no-one to consent to end of life planning for Mr ESI. However she said that Mr ESI's health has improved since he was admitted to the facility and the need for that decision is not imminent and might not occur within 12 months.

19. The Tribunal notes that the application to review the order was made some three weeks after the order was made. As noted, the review hearing was not in the nature of an appeal.

20. In reaching its decision in October 2014 the Tribunal reached the decision that there was a need, albeit limited, to appoint a guardian to make decisions about Mr ESI's health care and medical treatment. The circumstances outlined by the Tribunal when it made that order continue to apply and the applicant candidly stated that nothing had changed since the order was made.

21. The Tribunal decided that the order should be confirmed without variation for the following reasons:

• The decision of the Tribunal in making the order on 23 October 2014, that included consideration of the view advanced by the Public Guardian that there was no need for an order and the lack of material changes since that order was made.

• The evidence that Mrs NBI continues to be dissatisfied with the treatment provided by Dr Z to Mr ESI. Despite Mrs NBI's own decision making limitations the Tribunal is satisfied that her view should be taken into account in decision making regarding Mr ESI's health care and that therefore there is an ongoing issue about the appropriateness of Mr ESI's GP.

• The possibility that due to Dr Z's circumstances it might be necessary, in any case, to choose an alternative GP for Mr ESI.

• The need for substitute consent to Mr ESI's major medication.

Who should be the guardian?

22. The Public Guardian cannot be appointed if there is a suitable private person who can be appointed as the person's guardian.

23. There is no private person now available to be appointed as guardian, therefore, the Tribunal decided to appoint the Public Guardian.

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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: 28 July 2015