FBI

[2014] NSWCATGD 2

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	FBI [2014] NSWCATGD 2
Hearing dates:	10 January 2014
Decision date:	10 January 2014
Jurisdiction:	Guardianship Division
Before:	Boland J, Senior Member (Legal) Wroth M, Senior Member (Professional) Koussa J, General Member (Community)
Decision:	Temporary guardianship order made for a period of 14 days; Public Guardian appointed with accommodation (with additional authority to authorise others) and health care functions.
Catchwords:	GUARDIANSHIP - application for guardianship order - enduring guardianship appointment made - disability and incapacity in issue - need for an order - subject person refusing treatment and services - subject person self-discharging from hospital - subject person objecting to order - after hours hearing - temporary guardianship order
Legislation Cited:	Guardianship Act 1987 (NSW) Drug and Alcohol Treatment Act 2007 (NSW)
Category:	Principal judgment
Parties:	Mrs FBI Dr X (Applicant) The Public Guardian
File Number(s):	54416
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

1. At the conclusion of the hearing conducted by teleconference on the evening of 10 January 2014, the Tribunal made a temporary guardianship order under s 14 of the Guardianship Act 1987 (NSW) ("the Act"), appointing the Public Guardian as guardian for Mrs FBI. The order is for a period of fourteen days. The Public Guardian may make decisions for Mrs FBI in respect of accommodation, with coercive powers, and healthcare.

1. These are the Tribunal's reasons for the order made. A list of the parties to the hearing and witnesses who gave evidence to the Tribunal is set out in an appendix at the conclusion of these reasons. [Appendix removed for publication]

The applications and issues identified

1. An oral application in respect of Mrs FBI, who is aged 68, was made to the Tribunal by Dr Z at approximately 5.20pm on Friday 10 January 2014. Dr Z is an Associate Professor. He is the Medical Director, Emergency Department, at a hospital in regional NSW ("hospital A"). He has been involved with Mrs FBI's care from time to time for approximately the last seven years.

1. Dr Z, and others involved in the treatment and care of Mrs FBI, sought orders from the Tribunal the effect of which would be to restrain Mrs FBI leaving the hospital during the forthcoming weekend, and for further assessments to be undertaken, particularly neuropsychological assessment, and eventually at some time in the foreseeable future an assessment by the Aged Care Assessment Team ("ACAT").

1. Dr Z reports Mrs FBI has been diagnosed as suffering chronic alcoholism. She has been subject of an order under the Drug and Alcohol Treatment Act 2007 (NSW) ("the Drug and Alcohol Act"). Pursuant to the Drug and Alcohol Act Mrs FBI was retained for a period of approximately 20 days in hospital B in regional NSW but her rehabilitation treatment was unsuccessful. Dr Z had access to a copy of a discharge summary from hospital B (which was not in evidence before the Tribunal). Part of the contents of the discharge summary, which were read to us by Dr Z, discloses Mrs FBI scored 16/30 on a mini mental state examination and her Wechsler testing score was 59. These scores, and Mrs FBI behaviour during the hearing, was indicative to the Tribunal of some cognitive impairment.

1. Mrs FBI has a chronic history of calling the NSW Ambulance service after falls, and regular admissions to the hospital. She had presented to hospital A on 5 occasions in the 52 hours preceding this application. Those involved with Mrs FBI's care held grave concerns for her safety if she self discharged from the hospital on the evening of the hearing.

1. Mrs FBI participated in the hearing. She repeated on numerous occasions her wish to go home to her own house immediately, and to visit her husband in his nursing home the following day. She stressed she was sober, able to care for herself, and that she did not have funds to purchase alcohol.

1. Mrs FBI was subject of a previous application for a guardianship order in about September 2013, but the application was withdrawn in circumstances where her sister was coming from England to care for her. Before this Tribunal it was asserted that Mrs FBI's sister, Ms HBC, has been appointed as her enduring guardian, but she had returned to the United Kingdom on 28 December 2013 after which Mrs FBI relapsed, with frequent periods of intoxication resulting in calls to the NSW Ambulance service and hospital admissions.

1. Thus, the issues requiring determination by this Tribunal were primarily whether or not Mrs FBI suffers a disability, whether or not a guardian should be appointed, and the functions the guardian, if appointed, should have. It was not suggested that there is a suitable family member who could be Mrs FBI's guardian, at least on a temporary basis, due to her sister's residence in the United Kingdom, and accordingly if an order is made the guardian would, of necessity, be the Public Guardian.

Background

1. The following matters, unless noted by us to be an assertion, were accepted as relevant facts established to the requisite civil standard on the evidence before us.

1. Mrs FBI was born on [date removed for publication] 1948. She is married, but lives separately from her husband who is a full time patient in a nursing home. He is asserted to suffer Parkinson's syndrome. He is asserted to have been admitted to the nursing home in November 2012. It is asserted that Mrs FBI was subject to domestic violence during her cohabitation with her husband.

1. Mrs FBI now lives alone in her own home in regional NSW. At the time of the hearing she was a patient in the Emergency Department at hospital A.

1. Mrs FBI, when sober, is able to maintain her home in a clean condition. She has a current driver's licence but has been persuaded to hand over her car keys to prevent her driving, particularly to her husband's nursing home, when intoxicated. Although her home is reported to presently be clean, her caseworker asserts there is little food in the house.

1. Mrs FBI has refused to participate in an ACAT assessment.

1. During the period Mrs FBI's sister was in Australia she is reported to have done well, attending Tai Chi classes, going swimming and socialising. But on her sister's departure, she is reported to have resumed consuming alcohol to excess, and engaged in frequent calls to the NSW Ambulance Service. She has presented to the hospital on 10 occasions over the last 9 days.

1. Dr Z asserts in the three days prior to the hearing Mrs FBI had been discovered by her neighbour in a semi-naked state in her backyard. On admission to hospital she was observed to be badly sunburnt and dehydrated.

1. In September 2013, when the initial guardianship application with lodged with the then NSW Guardianship Tribunal, it was foreshadowed that an application would be made for a financial management order in respect of Mrs FBI's estate. However, to date, no such application has been lodged with this Tribunal or its predecessor.

The Hearing

1. The hearing was conducted by the Tribunal using the Tribunal's after hours conference facility. Mrs FBI participated for the majority of the hearing. She strongly opposed the making of any order, and asserted throughout the whole period she participated in the hearing her desire to "go home to sleep" in her own home immediately.

1. As well as Dr Z, the Tribunal heard evidence from Ms TAP, from the Drug and Alcohol Service at hospital A, and from Ms KAQ, Social Welfare Worker and ACAT assessor, who accompanied Mrs FBI during the hearing.

1. At the conclusion of the hearing, the Presiding Member spoke to Mrs FBI and explained the order made. She also spoke with the Duty Guardian, of the Public Guardian's office, and advised him of the order made by the Tribunal.

1. Before it makes a decision the Tribunal must try to bring the parties to a settlement if this is possible and appropriate. There was no dispute that the Tribunal had jurisdiction to hear the application, and there was acceptance by the Tribunal that Dr Z had the requisite standing as an applicant.

1. There was an issue at the commencement of the hearing, having regard to the paucity of the evidence before us, about whether Mrs FBI suffers a disability as defined in s 3(2) of the Act. As earlier noted, Mrs FBI strongly expressed the view that no order should be made. Thus, the Tribunal was unable to achieve a settlement of this matter.

What did the Tribunal have to decide?

1. The issues that had to be decided independently by the Tribunal in relation to guardianship were:

• does Mrs FBI suffer a disability (as defined in the Act);
• should the Tribunal make a guardianship order and if so, what order should be made;
• who should be the guardian; and
• how long should the order last.

Is Mrs FBI 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?

1. The Tribunal may make a guardianship order for a person if it is satisfied that he/she is " a person who because of a disability is totally or partially incapable of managing his or her person." Section 3(2) of the Act defines "disability". A person with a disability is a person who is

(a)   intellectually, physically, psychologically or sensorily disabled,

(b)   of advanced age,

(c)   a mentally ill person within the meaning of the Mental Health Act 2007, or

(d)   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.

1. The Tribunal had the benefit of some material provided to the Tribunal in support of the earlier application, namely, a report prepared by Ms KAQ dated 17 October 2013. At the time of that report a guardianship application appears to have been pending and Ms KAQ advocated for an order to restrain Mrs FBI at hospital B until a guardian was appointed with a services function.

1. Ms KAQ also wrote an earlier letter to the former Tribunal dated 10 September 2013. At that time she noted:

Throughout the time that health services have been receiving referrals for [Mrs FBI] from concerned relatives and community services, she has been referred and re referred to Community Mental Health and Drug and Alcohol Services and a home detoxification service with no change in her behaviours and a continued reluctance on her behalf to accept or comply with any recommendations.

1. Ms KAQ attached a report from the NSW Ambulance Service which disclosed numerous attendances with cause shown as "fall", "overdose" "unconscious faint" as well as five attendances recorded as "Asthma".

1. Dr Z provided a report to the Tribunal which is undated, but date stamp received 13 September 2013. He opined Mrs FBI suffers from "the chronic disease of Alcoholism with an inability to provide ongoing self care". Dr Z very fairly did express some concern to the Presiding Member on approaching the Tribunal for an urgent hearing as to whether or not Mrs FBI's condition meant that she suffers a disability such that the Tribunal could be satisfied of the establishment jurisdictional facts necessary to support the making of the order sought. However, the Tribunal was able to explore with him at the hearing the facts set out in the discharge summary from hospital B, and to question him about Mrs FBI's presentation. Dr Z impressed as a balanced and professional witness. The Tribunal had no hesitation in accepting his evidence.

1. As noted above, the Tribunal also had the benefit of oral evidence of Dr Z advising of the content of the discharge summary from hospital B. Clearly, on a review of the order made in this proceedings it will be imperative for that discharge summary to be provided to the Tribunal. Ideally, the Tribunal should have the benefit of a copy of any neuropsychological assessment of Mrs FBI conducted at hospital B to make a fully informed assessment of her current cognitive capacity or any updated psychiatric or psychological testing carried out at the hospital.

1. Because the hearing was conducted by teleconference the Tribunal did not have the benefit of being able to assess Mrs FBI's demeanour. However, her perseveration during the hearing and inability to demonstrate any insight into her condition, together with the extracts from the discharge summary, satisfied us on the balance of probabilities that she suffers a disability, at least in part, as defined in s 3 (2) of the Act.

1. Further we were satisfied that disability affects Mrs FBI's ability to make informed life-style decisions. This is cogently demonstrated by her outright rejection of an ACAT assessment and rejection of services. We were accordingly satisfied that Mrs FBI is a person for whom a guardianship order could be made.

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

1. Two provisions of the Act are relevant to whether or not an order should be made. These are s 4, which section contains the overarching principles, which the Tribunal must observe in dealing with any application under the Act, and the provisions contained in s 14(2).

1. The overarching principles in s 4 include the following considerations of relevance in this matter:

• that the welfare and interests of Mrs FBI be given paramount consideration;
• that Mrs FBI's freedom of decision and freedom of action should be restricted as little as possible;
• that Mrs FBI should be encouraged, as far as possible, to live a normal life in the community;
• the views of Mrs FBI should be taken into account;
• the importance of preserving Mrs FBI's family relationships should be recognised as should her cultural and linguistic environments; and
• Mrs FBI should be protected from neglect, abuse and exploitation.

1. Section 14 requires the Tribunal to have regard to the views of Mrs FBI, and any person who has had the care of her. The section also stresses the importance of preserving existing family relationships, the importance of a person's particular cultural and linguistic environment, and the practicability of services being provided to the person without the need for the making of a guardianship order. The reasons now address the relevant matters under these sections.

Evidence relevant to the welfare and interests of Mrs FBI

1. As noted above, the Tribunal had the benefit the detailed reports from Ms KAQ. The Tribunal also had the benefit of the oral evidence of Dr Z who has treated both Mrs FBI and her husband over many years. The Tribunal accepted their evidence as well as the oral evidence of Ms TAP about the proposals for Mrs FBI's immediate future welfare.

Mrs FBI's views

1. As noted above, Mrs FBI strongly opposed the making of an order. She was unable to appreciate the concern of the health professionals involved in her welfare, and continually interrupted during the course of the hearing.

1. The Tribunal accepts that Mrs FBI cogently expresses the view, and believes that she can manage independently, but the reality of the facts before the Tribunal suggest otherwise. She appears to be lonely and in need of assistance particularly since her husband became a full time nursing home patient.

1. The Tribunal was satisfied it could give little weight at this hearing to Mrs FBI's views because of her lack of insight into her condition and needs.

The effect of an order on Mrs FBI's family relationships/cultural or linguistic environment

1. There was nothing before us which indicated that appointing a guardian on a temporary basis for Mrs FBI would have an adverse impact on family relations.

Are there decisions which need to be made by a guardian?

1. Having heard the oral evidence of all those involved in Mrs FBI's welfare, including particularly Dr Z and Ms KAQ the Tribunal found there was a need for the appointment of a guardian to make decisions for Mrs FBI at least on a temporary basis.

What decision making functions should be attached to the order?

1. There was no dispute that the major issue requiring determination for Mrs FBI is in respect of accommodation. Closely linked to that is necessity of a healthcare function so that if necessary further psychological testing or psychiatric assessment can be carried out as a matter of urgency before the matter comes back before the Tribunal.

1. The Tribunal found the evidence about Mrs FBI's likelihood of self-discharge to be cogent given her past history. The Tribunal was satisfied without a coercive powers attached to the accommodation function she would either attempt to abscond from the hospital or self-discharge.

1. The Tribunal was satisfied that without the appointment of a substitute decision maker, albeit on a temporary basis, Mrs FBI is very likely to be at risk of neglect or abuse if she self discharged into the community.

Who should be the guardian?

1. The Tribunal determined the order should be a temporary one. This was because of the necessarily limited hearing the Tribunal could conduct without a formal application or any significant documentation in support, particularly the absence of records from Bloomfield Hospital and Mrs FBI's treatment in that facility.

1. As the Tribunal determined to make a temporary order s 17(4) of the Act dictates that the Public Guardian shall be appointed as the guardian.

How long should the order last?

1. An initial temporary guardianship order may be made for a period of up to 30 days. Such an order may be reviewed once only (see s 18(3)). Such an order should not be made if a continuing guardianship order appointing a person other than the public guardian may be made (see s 15(2)). We have already explained why, in our view, in the circumstances of this hearing it was not appropriate to make other than a temporary order.

1. The Tribunal determined to make an order for 14 days when it will be reviewed. This should afford those involved with Mrs FBI's welfare sufficient time to ensure appropriate expert medical evidence is provided to the Tribunal, and to enable, if practical, for Mrs FBI's sister, to participate in the hearing.

Recommendations

1. The Tribunal recommends that Mrs FBI's sister, Ms HBC, be notified of the orders made by the Tribunal and a copy of the Tribunal's reasons be forwarded to her by email. She should be notified of the date of the review of the order and encouraged to participate in the hearing.

1. The Tribunal also recommends that any relevant medical reports should be forwarded to the Tribunal as soon as possible, including the discharge summary from hospital B, together with any reports or assessments prepared about Mrs FBI at that hospital, together with any updating neuropsychological, psychological, or psychiatric reviews.

1. The Tribunal further recommends that if any person concerned with the welfare of Mrs FBI deems she is incapable of managing her financial affairs, and needs a financial manager, that an application for the making of a financial management order be promptly lodged with the Tribunal so that those proceedings can, if possible, be consolidated and heard at the same time as the review of the guardianship order.

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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: 10 April 2014