EWD

[2018] NSWCATGD 20

NSW Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:	EWD [2018] NSWCATGD 20
Hearing dates:	5 June 2018
Date of orders:	05 June 2018
Decision date:	05 June 2018
Jurisdiction:	Guardianship Division
Before:	J S Currie, Senior Member (Legal)
Decision:	The guardianship order concerning EWD made on 8 June 2016 is revoked from 5 June 2018.
Catchwords:	GUARDIANSHIP – end-of-term review of guardianship order – mandatory considerations in s 14(2) of the Guardianship Act 1987 (NSW) – views of the person – capability to manage one’s own affairs   EVIDENCE – assessment of competing medical evidence
Legislation Cited:	Guardianship Act 1987 (NSW), ss 3, 4, 14(1)–(2) Mental Health Act 2007 (NSW)
Cases Cited:	Nil
Texts Cited:	Nil
Category:	Principal judgment
Parties:	EWD (subject person) Mrs KZD (spouse) Public Guardian (appointed guardian)
Representation:	Nil
File Number(s):	NCAT 2014/00384204
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

REVIEW OF A GUARDIANSHIP ORDER

What the Tribunal decided

1. I decided to revoke the guardianship order made for Mr EWD on 8 June 2016.

Background

2. Mr EWD, who was aged 77 years at the time of the hearing, is a resident in an aged care facility in northern Sydney. He is married to Mrs KZD, who lives in a home unit which she and her husband own in northern Sydney. Mr EWD is reported to have mild, static vascular dementia but that diagnosis is disputed by Mr and Mrs KZD. He has also been diagnosed with bipolar disorder, which is reported to have been triggered by an assault on him when he was in the US Navy at the age of approximately 20 years.

3. The Tribunal has made a number of orders in respect of Mr EWD.

1. On 2 July 2014, the Tribunal made a continuing limited guardianship order for him under which the Public Guardian was appointed as his guardian for 12 months and authorised to make decisions on his behalf about his accommodation and services.

2. That order was reviewed on 5 May 2015 when the order was renewed and varied. A continuing limited guardianship order was made. The Public Guardian was again appointed as guardian for a period expiring on 29 June 2015 and authorised to make decisions on Mr EWD’s behalf about his access to others, accommodation (with authority to engage others), health care, medical and dental consent and services.

3. The order was again reviewed on 30 June 2015. A continuing limited guardianship order was made under which the Public Guardian was again appointed for a period of 12 months with authority to make decisions on Mr EWD’s behalf about his accommodation, health care, medical and dental consent and services.

4. The order was again reviewed on 8 June 2016. A continuing limited guardianship order was made under which the Public Guardian was again appointed for a period of two years with authority to make decisions on Mr EWD’s behalf about his accommodation and services.

4. On 30 June 2014, the Tribunal had also made a financial management order for Mr EWD under which the management of his estate was committed to NSW Trustee and Guardian. That order remains in force.

5. The purpose of the proceedings before me at Sydney on 5 June 2018 was to review the guardianship order for Mr EWD last renewed on 8 June 2016.

Parties and witnesses

6. The front sheet to these Reasons identifies the parties to the proceedings and the Appendix identifies the witnesses who participated in the hearing. [Appendix removed for publication.]

Issues for determination

7. The issues for determination by me were:

1. Is Mr EWD someone for whom I could make a further guardianship order because he continues to have a disability which prevents him from being able to make important life decisions? Is he “a person in need of a guardian” for the purposes of the Guardianship Act 1987 (NSW)?

2. Should I make a further guardianship order?

3. If so what order should be made? Specifically, what decision-making functions should the guardian have, who should be the guardian and how long should any further guardianship order last?

Participation in the hearing by Mr EWD and his views

8. We seek to hold our hearings in a way which promotes the participation of the person who is the subject of the application or review and we do our best to obtain the views of the subject person whenever possible.

9. Mr EWD attended the hearing and participated actively in it. He told me that he did not wish to have a guardianship order, that he had had little contact with the appointed guardian from the Public Guardian’s office and that he had sufficient support networks to be assisted, should the need arise, with any important life decisions. He identified his main supporters as his wife, Mrs KZD, and a support group. That organisation was represented at the hearing by Mr Z, Social Worker.

10. Mr EWD insisted that he was receiving substantial assistance and support from these sources as well as from a senior officer from a community support group and assistance from a clinical psychologist at the Department of Veterans’ Affairs. Mr EWD confirmed that he was a resident in the aged care facility but that he was able to stay with his wife in the family home at reasonably frequent and regular intervals. He asserted strenuously that he should be allowed to live permanently in the family home and that in his own words he would like to “have (his) shoulders cleared of the burden of guardianship”.

ASSESSMENT OF THE EVIDENCE AND DETERMINATION OF The issues

Is Mr EWD someone for whom I could make a further guardianship order because he continues to have a disability which prevents him from being able to make important life decisions? Is he “a person in need of a guardian” for the purposes of the Guardianship Act?

The legal principles

11. Under s 14 (1) of the Guardianship Act, I may make a guardianship order for a person if I am satisfied that he or she is a person in need of a guardian. That phrase is defined in s 3 of that Act as “a person who because of a disability, is totally or partially incapable of managing his or her person”. A person with a disability is someone who is intellectually, physically, psychologically or sensorily disabled, of advanced age, a mentally ill person within the meaning of the Mental Health Act 2007 (NSW), or 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.

12. At its previous hearing on 2 July 2014, the Tribunal considered a number of professional reports including an Aged Care Client Record and a neuropsychological assessment as establishing to its satisfaction that Mr EWD had disabilities which prevent it is making some important life decisions and that he was a person in need of a guardian. There was no new medical evidence available for the subsequent hearings.

Conflicting medical opinion

13. However, two sets of professional reports were made available for this hearing and, significantly, they reflected inconsistent views as to Mr EWD’s capacity to make important life decisions. Confusingly, both doctors involved have the same surname, XX, but apparently they are not related.

14. The two sets of reports also merit detailed attention because it was asserted at the hearing that Mr EWD’s neurologist, Dr AXX, had not communicated any of the reports of his reviews of Mr EWD to staff at Mr EWD’s place of residence or to his general practitioner, Dr BXX.

15. I considered first the more recent medical evidence, being that from Dr BXX, General Practitioner. There was firstly the doctor’s written report dated 22 May 2018. There was also a Health Professional Report Form from him received on 26 March 2018 but apparently prepared on 16 November 2017. In that Report Form the doctor opined that Mr EWD has mild static vascular dementia and has had it for the past four years. Significantly however, in his view that disability does not affect Mr EWD’s capacity to make informed decisions about his health and medical care, his accommodation, care or services or his financial affairs. There is nothing in the doctor’s short report of 22 May 2018 to contradict that conclusion. The indeed that report opens with the following paragraph:

[Mr EWD] has very early dementia, however he is quite capable and competent to travel outside the premises of (the aged care facility), unaccompanied. [Mr EWD] manages his own finances and is able to attend appointments to his GP and other Allied Consultants (sic).

16. A different impression is gained from the reports of Dr AXX, Neurologist. I was provided with and considered his written reports dated 16 October 2017, 8 January 2018 and 23 April 2018. It was apparent that Dr AXX has consulted with Mr EWD on other occasions, apparently over a fairly extensive period. Unfortunately, no other reports from him were available. The reports I read reflect the doctor’s consistent view that Mr EWD has bipolar disorder, triggered by some form of sexual assault whilst he was a member of the US Navy at the age of 19 or 20 and that he has a cognitive impairment “thought to be due to vascular dementia or frontal lobe dysfunction” which, although suggested to be “mild” in the report of 16 October 2017 is noted in subsequent reports to be steadily reducing Mr EWD’s cognitive capacity. Significantly:

1. in his report of a January 2018 Dr AXX confirms that Mr EWD:

has a psychiatric disorder as well as a possible early dementia illness and this will affect his ability to make decisions related to finances, to accommodation and medical care

2. in his most recent report of 23 April 2018, Dr AXX confirms that Mr EWD’s cognitive abilities are “decreasing”. On that date Mr EWD had scored 23/30 on a Mini Mental State Examination (“MMSE”) and only 16/30 on the Montréal Cognitive Assessment (“MoCA”). The doctor opined that:

([Mr EWD]’s) cognitive impairment has progressed since the previous test where he scored 26/30 on 16 October 2017. I would suggest that he has a slowly progressive cognitive impairment consisted with the history of dementia, and this should be taken into account when deciding his ability to make decisions.

17. Ultimately I preferred the views of the specialist neurologist Dr AXX to those of the general practitioner Dr BXX because:

1. he has specialist qualifications in neurology;

2. his opinions were based on the results recent and recognised cognitive screening tests and assessments undertaken by Mr EWD;

3. his reports are recent; and

4. the General Practitioner, Dr BXX’s relevant report was not as recent (having been prepared on a consultation in mid-November 2017) and consisted of box-ticking and short form answers rather than a detailed narrative description of the doctor’s views, or commentary on clinical testing; whereas Dr AXX provided a detailed clinical analysis and a narrative set of conclusions and opinions.

18. In reaching that conclusion, of course I intend no adverse reflection on the views of or the treatment provided by Dr BXX.

19. For those reasons I was satisfied that Mr EWD continues to have disabilities which prevent him from making some important life decisions, that he continues to be a “person in need of a guardian” for the purposes of the Guardianship Act and is someone for whom a further guardianship order could be made.

Should a further guardianship order be made?

20. I have discretion as to whether or not to make a guardianship order, including any renewal of an order on review, even where I conclude that the subject person is prevented by a disability from making important life decisions. 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, which I must consider in deciding whether or not to make a further order.

21. Essentially, I am directed to consider whether the subject person’s life circumstances, their needs and the protection of their rights necessitate the appointment of a legally authorised and legally empowered substitute decision-maker (that is, a guardian) or alternatively whether    their need for appropriate decision making can be achieved in a less formal way.

22. I took into account a written report from the Public Guardian, entitled the “Public Guardian’s View” dated 23 May 2018. In that report the Public Guardian expressed the view that Mr EWD continues to require a guardian with the functions of accommodation and services and that a further order should be made for two years.

23. However at the hearing, Ms Lauren O’Leary, an Acting Principal Guardian from the Office of the Public Guardian, told me that the Public Guardian wished to update its recommendation. The Public Guardian’s current view is as follows:

1. Mr EWD is not appropriately placed in the aged care facility. That form of accommodation is an unnecessary restriction on his freedom and could lead to a recurrence of the symptoms of his bipolar disorder;

2. the Tribunal should be cautious about concluding that a further guardianship order is needed on the basis of the medical reports available for this hearing. There are apparently other recent medical reports which support the perception that Mr EWD, supported by his wife and a support group and the other supports identified by him at [9] could make sensible decisions without the need for a guardian;

3. the Public Guardian is of the view that Mr and Mrs KZD are somewhat traumatised by the operation of the guardianship order; and

4. for these reasons the Public Guardian supported a revocation of the order.

24. As a result of my discussions during the hearing with the participants the following facts emerged and were established to my satisfaction:

1. Mr EWD has a strong and active support network. He is supported in his decision making by his wife Mrs KZD, by staff and fellow members of the support group, by a community support group and by his contact with medical professionals. For example, he intends to continue consulting Mr Y, a Clinical Psychologist at the Department of Veterans’ Affairs.

2. Mr EWD would clearly prefer to live with his wife Mrs KZD in their home in northern Sydney than to continue residence in the aged care facility.

3. At home, Mr EWD would be able to lead a more normal life in the community in a supportive environment. I was satisfied that Mrs KZD would provide care and support on an ongoing basis and would recognise the need for external support mechanisms to be available for her husband.

4. Mr EWD’s medical condition is stable and with his wife’s support he will continue seeking specialist medical treatment. He appears able to give his own consent to medication and to medical treatment; and

5. although Mr EWD will probably continue to need support services, these can be arranged informally with the help of Mrs KZD and the support group.

25. These findings support a conclusion that the guardianship order should be revoked. However, there are important factors under the Guardianship Act which I must consider and apply before finalising any decision as to whether or not to revoke the order. Accordingly, I considered the relevant factors in ss 14(2) and 4 of the Guardianship Act.

26. In particular it seemed clear that the services which Mr EWD appears to need could, as a practicable matter, be made available to him without the further appointment of a guardian. I found, on the basis of the evidence, particularly the views of Mr EWD himself, Mrs KZD and Mr Z from the support group, that the s 4 principles would also be satisfied by the revocation of the order.

27. In particular that would be the course which restricted Mr EWD’s freedom of decision and freedom of action as little as possible, it would encourage Mr EWD, so far as possible, to live a normal life in the community and to be self-reliant in in relation to his personal, domestic and financial affairs and it would be the course which best preserves his existing family relationships. I was satisfied that with the support mechanisms presently in place Mr EWD could expect to be reasonably protected from neglect, abuse and exploitation. Finally I was satisfied that, given his informal supports, his welfare and interests would be preserved notwithstanding revocation of the order.

28. Mr EWD’s position and the continuation of the guardianship order must be considered in light of the strong support network which he has, as described at [24](1) above. I am satisfied that, with input and guidance from that network, Mr EWD can properly be regarded as having adequate assisted decision-making ability which can be utilised in many areas of his life, including important decisions about his accommodation, health care and services. I am satisfied by exercising his own freedom of decision-making with important input from these sources (which the evidence establishes are readily available to him) Mr EWD can be relied upon to make sensible and prudent decisions consistent with his welfare and interests, without the need for decision making by a guardian. Putting it another way: his need for decision making in important areas of his life can be achieved without the need for the further appointment of a guardian.

29. It must follow that there is no further need for a guardianship order and that the current order must be revoked.

30. I ordered accordingly.

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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

Amendments

30 January 2019 - Anonymised party name in Cover sheet.

Decision last updated: 30 January 2019