FJD

[2016] NSWCATGD 23

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	FJD [2016] NSWCATGD 23
Hearing dates:	29 September 2016
Date of orders:	29 September 2016
Decision date:	29 September 2016
Jurisdiction:	Guardianship Division
Before:	Currie J, Senior Member (Legal)
Decision:	Limited guardianship order for a period of 9 months; Public Guardian appointed with accommodation functions.
Catchwords:	GUARDIANSHIP – where person is a forensic patient in hospital – where successive guardianship orders made – need to secure accommodation in specialist facility – order consistent with protection and promotion of person’s welfare and interests– guardianship order renewed
Legislation Cited:	Guardianship Act 1987 (NSW), ss 3, 4, 4(b), 14(2) Mental Health (Forensic Provisions) Act 1990 (NSW)
Category:	Principal judgment
Parties:	Mr FJD (person under guardianship) The NSW Public Guardian
Representation:	T Davis, separate representative
File Number(s):	43140
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. The Tribunal decided to renew the continuing limited guardianship order which had been made for Mr FJD on 31 March 2015. The Public Guardian was appointed as Mr FJD’s guardian for nine months from the date of this order with the authority to make decisions on behalf of Mr FJD about his accommodation.

Background

2. Mr FJD is a 74-year-old man of Korean background and culture who is currently incarcerated as a forensic patient in the Aged Care Unit of a public hospital. Mr FJD is serving a 15-year sentence for the murder of a work colleague in May 2009. In August 2011, the NSW Supreme Court found him unfit to plead. The Mental Health Review Tribunal (“MHRT”) has the power to order Mr FJD’s conditional release, but he has not at this stage been granted conditional release.

3. Mr FJD has a cognitive impairment as a result of a traumatic brain injury sustained in a motor vehicle accident in 2009. The Tribunal understands that Mr FJD is estranged from his wife, daughter and son, all of whom live in Western Australia.

4. On 25 November 2009, the Guardianship Tribunal made a guardianship order for Mr FJD, under which it appointed the Public Guardian as his guardian for 12 months. On the same date the Tribunal made a financial management order for Mr FJD, under which it committed the management of his estate to NSW Trustee and Guardian. The guardianship order was reviewed and renewed on 30 November 2010, 1 March 2011, 26 March 2012, 3 March 2014, and most recently on 31 March 2015, when the Tribunal renewed the guardianship order for 18 months but varied it so that the Public Guardian had authority only to make decisions for Mr FJD about his accommodation.

5. The purpose of the current proceedings was to conduct the statutory end of term review of the guardianship order last reviewed on 31 March 2015.

Parties and witnesses

6. 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

7. The issues for determination by the Tribunal were:

1. Is Mr FJD someone for whom the Tribunal 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 the Tribunal 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 by Mr FJD in the hearing and his views

8. Mr FJD participated in the hearing by videoconference. His Separate Representative, Mr Todd Davis, Solicitor, attended at the Tribunal. Ms Z, Clinical Nurse Consultant, participated by videoconference from the public hospital and informed the Tribunal that although arrangements had been made for an interpreter to participate to assist Mr FJD, unfortunately the interpreter had not arrived at the hospital. However, in Ms Z’ view Mr FJD had good English. Mr FJD appeared to agree that this was so. Mr Davis subsequently confirmed that he had conducted a recent interview with Mr FJD in which only English was used. The Tribunal accepted those accounts and on that basis was satisfied that it would not be disadvantageous or unfair to Mr FJD for the hearing to continue in the absence of an interpreter.

9. Mr FJD participated to a limited extent in the hearing but he was able to tell the Tribunal that he believed that he continued to need a guardian and that he was happy having the Public Guardian as his appointed guardian. In answer to further questions he indicated that he was only partly happy with his treatment at his present accommodation, but he did not elaborate. In answer to the Member’s questions he indicated that he did not know whether or not he was in good health and that he was not sure whether someone else should continue to be appointed to make decisions on his behalf.

10. The views of Mr Todd Davis, the appointed Separate Representative of Mr FJD, are set out below, commencing at paragraph 19.

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

Is Mr FJD someone for whom the Tribunal 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?

11. The Tribunal may make a further guardianship order for a person if it is satisfied that he or she is a person in need of a guardian. That phrase is defined in s 3 of the Guardianship 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 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 2007 (NSW); or

4. otherwise disabled;

5. 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 hearings on 3 and 31 March 2015, the Tribunal had accepted medical and clinical evidence, including evidence from a Geriatrician at the public hospital, as establishing to the Tribunal’s satisfaction that Mr FJD had a severe brain injury, that his cognitive ability had deteriorated over the previous 12-18 months and that as a result he was unable to make important life decisions.

13. Ms Z told the Tribunal that since the hearings in March 2015, substantial behavioural issues had emerged and that Mr FJD had assaulted fellow inmates and had been treated as unsafe to be transferred from the public hospital. Other than this information from Ms Z, there was no new or updated written medical or clinical evidence available for this hearing. However the participants appeared to be in consensus that there had been no change to Mr FJD’s diagnosis and no improvement to his ability to make important life decisions. In light of this uncontroverted evidence the Tribunal was satisfied that Mr FJD continues to have disabilities which prevent him from making some important life decisions, and that he is a “person in need of a guardian” for the purposes of the Guardianship Act and someone for whom a further guardianship order could be made.

Should a further guardianship order be made?

The views of the Clinical Nurse Consultant, Ms Z

14. Ms Z informed the Tribunal that recently, following the development of behavioural issues by Mr FJD, a facility which specialises in caring for people with challenging behaviour had indicated that it was prepared to consider admitting and accommodating him, subject to the MHRT granting his conditional release. The facility is in Regional NSW.

15. Ms Z and her team are of the view that accommodation at the facility in Regional NSW, or a similar facility would be more appropriate and beneficial to Mr FJD than his present incarceration in the forensic ward of a hospital. Ms Z understood that the facility is well equipped and that members of its clinical and nursing staff are trained specifically in caring for patients with behavioural problems. Ms Z noted that although her medical and nursing colleagues at the public hospital had reviewed the behavioural control strategies in place for Mr FJD, his range of activities remained quite limited and he was incarcerated for most of the time. That in turn accelerated the current deterioration in his behaviour and accordingly in her view there was limited utility in prolonging his incarceration. Ms Z’ view was that a conditional release application should be made for him as soon as possible.

The Public Guardian’s View

16. The Tribunal considered a detailed report from the Office of the Public Guardian (“OPG”) dated 22 August 2016, entitled the “Public Guardian’s View”, and the submissions at the hearing from a representative of the OPG. The written report recommended a finding that Mr FJD remains in need of a guardian and that a further order should be made with the accommodation function.

17. However at the hearing, the OPG representative advised that the Public Guardian’s view had changed; that there was no current need for the accommodation function which was granted under the present order or for any other functions and that it followed that the order should lapse and should be revoked.

18. We understood the OPG representative to make those submissions on the basis of the following contentions:

1. In the OPG representative’s contention it was unlikely that there would be any early consideration by the MHRT of an application for Mr FJD’s conditional release. His conditional release was rejected at the MHRT hearing on 28 April 2016 and the MHRT is not due to reconsider the matter until 28 April 2017.

2. A continuation of the guardianship order would not be the least restrictive course in the circumstances. The OPG representative pointed out that Mr FJD has been under guardianship for over seven years and has not been released from custody. Accordingly, the Tribunal would need to be satisfied that some direct benefit was likely to flow from the order, in terms of a reduction of restrictions presently imposed on Mr FJD, before it could properly decide to renew the current order. There was in her contention no immediate prospect of such a reduction of the restrictions on Mr FJD. Accordingly the appropriate course would be for the Tribunal to lapse the order. The OPG representative submitted that the proper course would be for the current order to lapse and be revoked and that if appropriate arrangements can be made to accommodate Mr FJD in a suitable care facility, and if the MHRT on that basis grants his conditional release, then a new application for a guardianship order can and should be made at that time.

3. The OPG representative confirmed that she had been unaware of the possible availability of the facility in Regional NSW. However, she pointed out that the MHRT at its last hearing in April 2016 had found that Mr FJD was a risk to himself and others and that his conditional release was not justified. The OPG representative contended that any facility would need to await the grant of a conditional release order from the MHRT before accepting Mr FJD as a resident, but noted that his conditional release application was not due for further consideration by the MHRT until 28 April 2017.

The views of the Separate Representative, Mr Todd Davis

19. Mr Davis told the Tribunal that he had met Mr FJD three days before this hearing and discussed the matter with him in some detail (in English) in order to obtain his views. Mr FJD had indicated that he wished to leave prison as soon as possible and that he would be prepared to live anywhere other than prison. He had also expressed his satisfaction with the Public Guardian.

20. Mr Davis submitted that there remained a need for a guardianship order for Mr FJD with the sole function of accommodation. He made that submission on the following grounds:

1. Although MHRT had previously declined applications for Mr FJD’s conditional release, there were now new factors in play. These included the availability of a place at the facility and the fact that substantial preparatory legal work was presently being undertaken by the Legal Aid lawyer who represented Mr FJD at the MHRT. He advised that that lawyer was in the process of preparing independent expert reports as to the issues required to be considered under the Mental Health (Forensic Provisions) Act 1990 (NSW). He asserted that substantial progress was being made in the preparation of those reports.

2. Another important element in obtaining a conditional release order had been satisfied. That is the requirement that MHRT be satisfied that Mr FJD has spent sufficient time in custody. We understood Mr Davis to contend that the MHRT was satisfied as to that at its hearing in September 2015. In Mr Davis’s contention, the result was that Mr FJD remained incarcerated for “due process” reasons (that is, because he is awaiting the completion of reports which are necessary as part of the process involved in obtaining a conditional release) rather than for any reason based on the penalty imposed for his crime or for reasons related to his rehabilitation as a convicted offender.

3. If the necessary preparations for the further hearing of the conditional release application can be concluded in the reasonably near future Mr Davis’s understanding is that the matter could be brought back before the MHRT prior to the scheduled review date of 28 April 2017. An additional incentive for the acceleration of the MHRT hearing is the fact that there can be no guarantee that a possible place for Mr FJD at the facility will remain available.

4. It was Mr Davis’s understanding that the facility could not finalise its acceptance of a referral of a conditionally released patient without a formal written consent by the patient himself or herself or through a substitute decision-maker such as a guardian. Although the Tribunal understood Mr Davis to concede (in answer to the Tribunal Member’s questions to this effect) that there was not a high probability that Mr FJD would be conditionally released and otherwise cleared for transfer to the facility in Regional NSW within approximately the next three months, Mr Davis emphasised that a guardian may well be required to give substituted consent to such a move (that is to make an accommodation decision) within the next three months.

5. Additionally, in Mr Davis’s submission there might well be difficulties in finalising the necessary assessments of Mr FJD which would support the conditional release application if no guardian were in place, because a guardian may have to provide consent to those assessments.

6. In Mr Davis’s submission, lapsing and revocation of a guardianship order might actually be the more restrictive course for Mr FJD; that is, the course which would restrict his freedom of action and freedom of decision to a greater extent than would be the case if he continued to have a guardian. Mr Davis asserted that Mr FJD is currently incarcerated for approximately 19 hours in each 24 hour period, most days. Mr Davis reminded the Tribunal that there has been a finding that his confinement will continue until a conditional release order is made by the MHRT. Any course of action which will accelerate or facilitate the MHRT’s consideration of a conditional release application or improve the prospects of a successful application is for that reason to be preferred. The continued availability of a guardian would satisfy those conditions. In Mr Davis’s contention, renewal of the current order would therefore be the course which best satisfies the principle stated in s 4(b) of the Guardianship Act that Mr FJD’s freedom of action and freedom of decision should be restricted as little as possible.

7. For those reasons Mr Davis contended that there was a current need for a guardian for Mr FJD and that the current guardianship order should be renewed with the accommodation function.

The Tribunal’s assessment and conclusions on this issue

21. The Tribunal accepted and gave substantial weight to the views of the Public Guardian as ably expressed by the OPG representative. In particular, the Tribunal accepted that it was open to Mr FJD or someone on his behalf to make a new application for guardianship once the MHRT had granted is conditional release, or perhaps at some prior time in anticipation of that order being made.

22. However, ultimately the Tribunal came to the view that the guardianship order should be renewed. It did so for the following reasons:

1. The Tribunal was persuaded by the submissions of Mr Davis and it accepted as reliable the expert evidence of Ms Z. When those two elements are considered in conjunction, they persuade the Tribunal that Mr FJD’s personal freedom is presently substantially restricted for some 19 hours per day and it is that very restriction which exacerbates Mr FJD’s behavioural problems.

2. Moreover, any course of action which facilitates or accelerates Mr FJD’s transfer to a suitable alternate accommodation facility will satisfy four of the important principles encapsulated in s 4 of the Guardianship Act. In the Tribunal’s assessment such a transfer of accommodation is likely:

• to reduce the present restrictions on Mr FJD’s freedom of action and expression;

• to encourage him so far as possible to live a normal life in the community;

• to encourage him so far as possible to be self-reliant in matters relating to his personal, domestic, and financial affairs; and

• that it is the course most consistent with protection and promotion of Mr FJD’s welfare and interests.

3. Although the MHRT is not due to consider Mr FJD’s application until April 2017, it is reasonable on the basis of the preparations currently being made to conclude that the application may well be heard at an earlier date. There is currently a clear incentive for some acceleration of those preparations, given the possible availability of alternative accommodation for Mr FJD at the facility in Regional NSW. It is likely that a guardian will be needed to consent to the change of accommodation and additionally a guardian may be needed in order to make preliminary decisions relating to the new accommodation.

4. All those factors lead to a conclusion that an accommodation decision on Mr FJD’s behalf may well be necessary within the coming months and quite possibly well before April 2017. It follows that there is a need for such a decision to be made on Mr FJD’s behalf by a guardian and the need is, on any reasonable view, a current one.

5. It follows that the guardianship order should be renewed.

23. In finalising its decision on this important issue the Tribunal considered the factors prescribed by s 14(2) of the Guardianship Act. The factors which were of relevance to this case included the views of Mr FJD himself. The Tribunal gave substantial weight to the question of whether the services which Mr FJD needs could, as a practicable matter, be made available to him without the guardianship order being continued. The Tribunal accepts that Mr FJD’s transfer to a facility such as the facility in Regional NSW will expand the range of services available to him and are likely to enhance services directed at his particular behavioural problems. These are clearly services which he needs and the Tribunal accepts they may not be available to Mr FJD unless a guardian is in place to consent to his change of accommodation and make related accommodation decisions.

23. The Tribunal also took into account the guiding principles set out in s 4 of the Guardianship Act. The principles which appeared to have primary relevance to this case, other than those already considered by reference to s 14(2), were those explained in [22 (2)] above.

24. On the basis of this analysis of the evidence and the relevant principles the Tribunal was satisfied that there continues to be a current need for decisions on behalf of Mr FJD in particular, decisions about his accommodation, to be made by a guardian. It follows that a further 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

26. There was consensus amongst the participants that legal services could be provided to Mr FJD without the need for the grant of a specific legal services function in the guardianship order and that there was no current need for decisions about Mr FJD’s health care, medical or dental consent, services or any other relevant matter to be made by a guardian.

27. It followed that the guardian would only need authority to make decisions about Mr FJD’s accommodation.

Identity of the guardian

28. No private person had indicated a willingness to be considered for appointment as Mr FJD’s guardian. The Tribunal therefore decided to continue the appointment of the Public Guardian.

Duration of the order and its review

29. Where the Tribunal decides to renew the guardianship order it can make a further period in the ordinary case for a maximum of three years. Where the Tribunal is satisfied that the person the subject of the order has permanent disabilities and it is unlikely that he or she will become capable of managing their person the Tribunal may make a further order not exceeding five years.

30. The Tribunal was satisfied that the duration of the renewed order should be sufficient to allow for the further hearing of the conditional release application by the MHRT and also to allow for completion of the formalities arising from any proposed change of accommodation for Mr FJD. But, in order to ensure that the order is not restrictive, that should be the maximum term.

31. On that basis, the Tribunal renewed the order for nine months.

32. There was no suggestion that the order should be non-reviewable and an end-of-term review of the order would clearly be appropriate in Mr FJD’s interests.

33. The Tribunal 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

Decision last updated: 31 October 2016