EZN

[2020] NSWCATGD 4

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

EZN [2020] NSWCATGD 4

Hearing dates:

16 April 2020

Date of orders:

16 April 2020

Decision date:

21 April 2020

Jurisdiction:

Guardianship Division

Before:

M D Schyvens, Deputy President
Dr B McPhee, Senior Member (Professional)
J L Newman, General Member (Community)

Decision:

1. A guardianship order is made for EZN.

 

2. The Public Guardian is appointed as the guardian.

 

3. This is a continuing guardianship order for a period of one month from 16 April 2020.

 

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

 

FUNCTIONS:

 

5. The guardian has the following functions:

 

a) Health care

 

To decide what health care EZN may receive.

 

b) Medical/Dental consent

 

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

 

AUTHORITY:

 

6. The guardian has the following authority:

 

a) Authority to override objections to medical treatment

 

i) The guardian may override the objection of EZN to major or minor medical treatment.

 

CONDITION:

 

7. The condition of this order is:

 

a) Standard Condition

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

Catchwords:

GUARDIANSHIP – application for a guardianship order – urgent application – subject person in late stages of pregnancy – subject person detained at a mental health facility – subject person an assessable person under s 17 of the Mental Health Act – need for immediate medical treatment decisions to be made – need for health care decisions to be made – refusal of treatment – likely objection to future treatment – disengagement with all services – serious risk of harm to self and unborn child – drug and alcohol use – Public Guardian appointed – order made.

  INTERLOCUTORY – hearing with limited or no notice to the parties – hearing proceeding in the absence of the subject person.

Legislation Cited:

Guardianship Act 1987 (NSW), ss 3(1)–(2), 3C, 4, 14, 14(2), 34(2), 46A
Mental Health Act 2007 (NSW), s 17, Pt 3 of Ch 4

Cases Cited:

IF v IG [2004] NSWADTAP 3

Texts Cited:

Nil

Category:

Principal judgment

Parties:

001: Guardianship Application

  EZN (the person)
KYB (applicant)
Public Guardian
NAQ (spouse)

Representation:

K Stares, of counsel, as separate representative for EZN

File Number(s):

NCAT 2020/00112642

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. We appointed the Public Guardian as EZN’s guardian for a period of one month to make decisions about her health care and to make substitute decisions about medical and dental treatment for her, if required. We also provided authority to the Public Guardian to override any objections EZN may raise in relation to any such treatment.

Background

2. EZN is a 31-year-old Aboriginal woman who as at the time of the hearing is 37 weeks pregnant. She has been diagnosed with either Bipolar Affective Disorder or Schizoaffective Disorder.

3. On 15 April 2020, the Tribunal received an urgent application from KYB, a social worker with Hospital YZ, requesting the urgent appointment of a guardian for EZN.

4. KYB’s application indicated that EZN was taken by ambulance to Hospital AB on 8 April 2020 after she was found wandering the streets responding to unseen stimuli. EZN was transferred to Hospital YZ by ambulance and subsequently detained there under the Mental Health Act 2007 (NSW). Prior to her admission, EZN was living with her partner, NAQ, in a Department of Housing property in Regional NSW.

5. On the same day of receipt of the application, the Tribunal made an order appointing a separate representative for EZN and listed the matter for hearing on an urgent basis on the next day, 16 April 2020.

The hearing

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

7. Given the stated urgency in the application, the Tribunal listed the matter on an urgent basis resulting in limited, or no notice, being able to be provided to the parties to the proceedings. We outline later in these reasons that this deficiency was one of the primary reasons we decided to make an order of limited duration.

8. The Tribunal Registry was unable to make contact with EZN’s partner, NAQ, prior to the hearing. Fortunately in the course of the hearing, we were able to make contact with NAQ who then participated in the hearing. We note that attempts were made by the Tribunal’s Registry staff prior to the hearing to contact BCD [EZN’s aunt]. We also attempted to contact her during the hearing, but unfortunately no contact was achieved.

9. In her application, KYB provided the following explanation as to why she believed the matter should be heard on an urgent basis:

As outlined [EZN] is currently 37 weeks pregnant and as such immediate decisions regarding her ongoing medical treatment need to be made, with particular reference to the delivery of her unborn child. As per the obstetrics team who have reviewed [EZN] on multiple occasions a caesarean section at 39 weeks has been recommended due to health concerns for both [EZN] and the unborn, however [EZN] has been unable to provide consent and is unable to understand or weight up the current risks.

As such we are requesting that this application be viewed with urgency, and a hearing scheduled for as soon as possible.

10. As previously noted, the Tribunal had made an order that EZN should be separately represented in the proceedings. Ms Kellie Stares of counsel performed the role of separate representative for EZN at the hearing. Ms Stares advised that she had had the opportunity to speak with EZN before the hearing but had not had the opportunity to speak with her partner, NAQ. On the information that was available to the Tribunal, she submitted that any delay in hearing the matter would not be in EZN’s interests.

11. We were satisfied that in all of the circumstances we should proceed to hear the application as listed.

What did the Tribunal have to decide?

12. The questions which had to be decided by the Tribunal were:

• Is EZN 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?

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

• Who should be the guardian?

• How long should the order last?

Is EZN 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?

13. Section 14 of the Guardianship Act 1987 (NSW) (“the Act”) provides that the Tribunal may make a guardianship order for a person if it is satisfied that he or 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”: s 3(1) of the Act. 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; 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: s 3(2) of the Act.

14. We were provided with a comprehensive report dated 15 April 2020 and authored by Dr Z, Psychiatry Registrar, under the supervision of Dr Y, Consultant Psychiatrist, both associated with Hospital YZ. That report included the following information:

[EZN] has had contact with psychiatric services intermittently since 17 - 18 years of age, with at least eight admissions since then. She has been given various diagnoses, inclusive of drug induced psychosis, depression with psychotic symptoms, schizophrenia and bipolar affective disorder.

….

Her most recent admission was in January 2020, when she was admitted to [Hospital YZ] with acute mania. At that time, there were many concerns regarding her mental health as well as her physical health, as she had received little to no antenatal care and had a previous history of a possible cervical malignancy. Unfortunately [EZN] absconded from the unit before her care was completed, and despite many efforts made by the staff, she disengaged from the services.

…

There are also notable concerns related to substance misuse with cannabis, methamphetamine and alcohol. [EZN] herself admits to recent methamphetamine, cannabis and alcohol use, and doesn't demonstrate an understanding of why this is a concern to her or the pregnancy. There are persistent observations related to impoverished family support, repeated disengagement with all services including Aboriginal services and antenatal care, chaotic and disorganised behaviour.

…

[EZN] has a 13-year-old child, who was taken into care of Department of Community and Justice when only 3 months of age, and she has had no contact with the child. In addition, she has had two previous miscarriages.

…

[EZN] currently presents with mania (restlessness, decreased need for sleep, pressure speech, flight of ideas) and psychotic symptoms (auditory hallucinations),and thus has a diagnosis of either Bipolar Affective Disorder (a major mood disorder with psychotic symptoms) or Schizoaffective Disorder (primarily a psychotic illness like Schizophrenia but inclusive of equally prominent mood symptoms). Without treatment, this will place her and the pregnancy (and thus the unborn child) at a significant risk and she is also at a higher risk of post-partum psychosis.

…

She does not have capacity to consent or make decisions about her psychiatric treatment at the current time.

In addition, there is significant concern regarding her pregnancy, delivery and unborn child due to her lack of engagement with antenatal care and Inability to make informed decisions. [EZN] is unable to engage in a meaningful consult, and she is currently unable to comprehend or retain information given to her regarding the need for possible Interventions, nor weigh the pros and cons of treatment options and make an informed decision e.g. she would like a vaginal delivery, but is unable to understand and engage with extensive monitoring required.

…

Based on the above, i.e. [EZN] poor insight and lack of capacity to consent and make decisions about her health and necessary services required, the clinical team is of the view that [EZN] requires a public guardian to make essential and important decisions with regard to her medical and dental health and services required. Without this, there would be serious concerns of risk to herself and her child.

15. Dr Y participated in the hearing and confirmed the diagnoses provided in the written report. He confirmed that it was his view that at this point in time, EZN’s diagnosed condition is significantly affecting her ability to make decisions as to her care and treatment.

16. We also had before us correspondence authored by Dr X, Senior Medical Resident Officer, Maternity and Gynaecology at Hospital YZ dated 14 April 2020. That report provided, in part:

From my assessment of [EZN], she is currently unable to understand or weigh the risks in order to consent to a mode of delivery. Secondly, in her current mental state, she is highly unlikely to be cooperative with continuous monitoring and intravenous cannulation, the standard of care for vaginal birth after caesarean.

17. We endeavoured to seek EZN’s views on her ability to make significant life decisions. Most of her engagement with us was to ask when she could leave the facility. She advised us on more than one occasion, in response to our questions on the application, that she wished to stay “at [a hotel]”.

18. EZN’s partner, NAQ, when queried as to his view as to his partner’s capacity, responded by also wanting to know when she would be able to come home stating “I want her at home – so I can hug her.”

19. Ms Stares informed us that she was of the view it was clear from her conversation with EZN that she has a disability and is currently unable to make rational decisions. She noted that at one point in her conversation with EZN, EZN was adamant that she had never previously given birth to a child, however, after a period, she later agreed that she had in fact had a child.

20. We were satisfied on the uncontested evidence before us that EZN has a disability, specifically a mental illness with a diagnosis of either Bipolar Affective Disorder or Schizoaffective Disorder. The submissions of Ms Stares accorded with our own attempts to interact with EZN, that is, she is currently unable to make important life decisions. This is of particular significance given the decisions that will need to be made as to the birth of her child.

21. We were satisfied that EZN currently has a disability which prevents her from making important life decisions and she is a person for whom we could make a guardianship order if the other legislative criteria are met.

Should the Tribunal make a guardianship order and what order should be made?

22. 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 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.

23. 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 may be guided by the principles that are set out in s 4 of the Act (see IF v IG [2004] NSWADTAP 3).

24. As previously noted, EZN is pregnant and due to give birth in the next one to two weeks. Whilst we had the benefit of the participation of both EZN and her partner in the hearing, neither provided any particular views as the actions we should take in consequence of the application.

25. In the previously mentioned report, Dr X commented:

[EZN], 31[information removed for publication], is currently 36+5 weeks pregnant and under the inpatient psychiatric care of [Dr W] at [Hospital YZ]. She has a history of a previous caesarean section, and thus mode of delivery planning is required in the current pregnancy.

The options are caesarean section or vaginal birth.

The risks of caesarean section include bleeding, infection, damage to surrounding structures, venous thromboembolism, and increased rate of placenta praevia and accretta in future pregnancies.

The conditions for safe vaginal birth after caesarean section are intravenous cannula, continuous electronic fetal monitoring and appropriate progress. The risks of VBAC include uterine rupture, 1:200, which, if occurs, carries a significant risk of fetal and maternal morbidity and mortality. This includes maternal haemorrhage requiring hysterectomy.

26. The applicant, KYB, submitted to us that the evidence was clear that EZN is currently unable to absorb information as to her impending pregnancy and her general health and well-being. She argued that a substitute decision-maker is required as a matter of urgency to provide substitute consent for EZN’s treatment with the authority to override any objections EZN may have to any treatment which is consented to.

27. KYB also recommended that we give consideration to appointing a guardian with a services function to allow for substitute decision-making as to the services EZN may receive post-birth and leaving the hospital environment.

28. Ms Stares drew our attention to evidence before us that EZN has previously had medical issues during pregnancy and that due to this and other factors, there was some unpredictability as to the course of her imminent labour. She was of the view that it would be appropriate that a guardian be appointed with authority to make medical treatment decisions for EZN but, given the urgent circumstances and the lack of notice provided to the parties, any appointment made should be reviewed within a short period. In the same vein, she did not support the grant of a services function at this point in time.

29. We determined that there was a current and immediate need for a guardian to be appointed to make substitute decisions for EZN in terms of her overall health care and to provide substitute consent to medical and dental treatment as required. The evidence spoke for itself. EZN, in a matter of days, will give birth to her child and there may well be some complexity with the procedure given her past history, which could risk the health and well-being of both her and the unborn child. EZN, due to her disability, is not currently in a position to provide consent for the treatment associated with her pregnancy, and accordingly, she requires a guardian with the requisite authority to do so on her behalf.

30. We were also satisfied on the evidence before us that there was a strong probability that EZN may object to any treatment that is recommended for her and otherwise consented to by her appointed guardian. An example of the evidence that so persuaded us included the report of Dr X (see [16] above) where she advised that she was of the view that it was highly unlikely that EZN would be co-operative with the treatment required if a vaginal birth was to be pursued.

31. We were minded to grant to her appointed guardian the authority to override any objections she may have to treatment as permitted by s 46A of the Act. In this regard, we note that we made contact with a Principal Guardian of the Public Guardian during the course of the hearing, Ms Donna Thomas, who consented to us granting such authority if we were to appoint the Public Guardian as EZN’s guardian.

Who should be the guardian?

32. There was no private person seeking appointment as EZN’s guardian. Accordingly, we appointed the Public Guardian of NSW.

How long should the order last?

33. An initial guardianship order can be made for a period of up to one year from the date on which it was made.

34. Ms Stares opined that we should make an order that would be reviewed after a relatively short period, perhaps after one month. This would to allow for a substitute decision-maker to be in place during the course of EZN’s pregnancy and delivery. However, given the lack of notice and the urgent circumstances in which the application for guardianship was heard, the order should not be in place for any longer than is required without a further review being conducted.

35. There were no contrary views to those of Ms Stares.

36. We agreed with the basis of the submissions put to us by Ms Stares and accordingly proceeded to make the order reviewable after one month.

Notation – intersection with the Mental Health Act 2007 (NSW)

37. It was our understanding that the matter of EZN’s detention under the Mental Health Act was yet to come before the Mental Health Review Tribunal (MHRT).

38. EZN had been described in documentation before us as an “involuntary patient”. We enquired as to whether there may be an issue as to our jurisdiction in those circumstances. We were informed by both the applicant, KYB, and Dr Y, that EZN was currently “an assessable person” as defined in s 17 of the Mental Health Act and therefore they did not believe there was any jurisdictional difficulties with the orders proposed. In fact, Dr Y informed us he had sought advice on the matter from the MHRT prior to the application being made to the NSW Civil and Administrative Tribunal, and was told that it was advisable to make an application for the appointment of a guardian given that EZN detention was yet to reviewed by the MHRT.

37. We note that in the event that EZN comes before the MHRT and an order is made further detaining her as an “involuntary patient”, this may impact upon the authority of the Public Guardian to make substitute decisions as to EZN’s medical treatment by virtue of the operation of ss 3C and 34(2) of the Act and the provisions in Part 3 of Chapter 4 of the Mental Health Act relating to consent to treatment for involuntary patients.

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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: 23 April 2020