FQM
[2016] NSWCATGD 19
•18 February 2016
|
New South Wales |
Case Name: | FQM |
Medium Neutral Citation: | [2016] NSWCATGD 19 |
Hearing Date(s): | 18 February 2016 |
Date of Orders: | 18 February 2016 |
Decision Date: | 18 February 2016 |
Jurisdiction: | Guardianship Division |
Before: | J Kearney, Senior Member (Legal) |
Decision: | Guardianship order made; Public Guardian appointed for 3 months to make decisions about accommodation (including authorising other), medical and dental treatment and services. |
Catchwords: | GUARDIANSHIP – urgent application for a guardianship order – whether hearing should proceed in absence of the subject person – question as to subject person’s capacity – consideration of s 14 of the Guardianship Act 1987 (NSW) – alcohol related brain damage – accommodation, medical, dental and services function – short term guardianship order made |
Legislation Cited: | Guardianship Act 1987 (NSW), ss 3(1), 3(2), 4, 14, 14(2), 15(3) |
Cases Cited: | IF v IG [2004] NSWADTAP 3 |
Category: | Principal judgment |
Parties: | Ms FQM (subject person) |
Representation: | Nil |
File Number(s): | 60672 |
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
The Tribunal appointed the Public Guardian as Ms FQM’s guardian for a period of three months to make decisions on her behalf about her accommodation (including authorising others), medical and dental treatment, and services which she should receive as set out in the Tribunal’s order.
This order is to be reviewed concurrently with the financial management order made on 13 November 2015 in matter number 2015/8933.
GUARDIANSHIP APPLICATION
Background
Ms FQM is a 56-year old woman who lives independently in her own unit in East Sydney. She has had some recent admissions to a public hospital in East Sydney. Ms FQM receives support from her mother, Ms JDM, a treating team in a public health centre specialising in alcohol and other drug treatment services, other health services, and friends.
On 13 November 2015, the Tribunal considered an application for guardianship and financial management. On that day the Tribunal appointed the NSW Trustee and Guardian as the financial manager with a review period of six months and concurrently dismissed the guardianship application.
When the Tribunal considered the guardianship application on 13 November 2015, the Tribunal found that Ms FQM has a disability that prevents her making important life decisions and she is a person for whom the Tribunal could make a guardianship order. At that stage the Tribunal noted that Ms FQM was planning to sell her home unit in East Sydney and move to an aged care facility where she would have access to services and three levels of residential care. Ms FQM was then being assisted by her friend. The Tribunal accepted a submission from the Public Guardian that a guardianship order should not be made because informal arrangements were in place to assist her in making decisions and there was no current important life decisions needing to be made by a guardian.
Thus, the Tribunal did not make a guardianship order on 13 November 2015 because it was not satisfied that there was a current need for a guardian.
On 9 February 2016 the Tribunal received an urgent application for guardianship from Mr KSD, social worker at the public health centre. The current application alleges that Ms FQM is vulnerable in the community and in her home. She has refused to accept recommendations for clinical care. The application says a guardian with coercive powers is needed to bring Ms FQM to hospital for treatment. The Public Guardian is proposed.
The hearing
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.]
Ms FQM did not attend the Tribunal hearing on 18 February 2016. She had participated in the Tribunal hearing on 13 November 2015 by telephone.
The Tribunal tried to contact her by mobile telephone and her home telephone without success. Mr KSD, the applicant, said that he had spoken to her three or four times in the last week in person and by telephone about the Tribunal hearing. He had also spoken to close friends of Ms FQM who had told Mr KSD they had urged her to attend.
The Tribunal noted that a Tribunal officer spoke with Ms FQM on 17 February when she indicated she would attempt to attend the Tribunal hearing with her friend.
The Tribunal decided to proceed with the hearing in the absence of Ms FQM because it appeared she had ample notice of the hearing and because of the urgency of the matter that is apparent from the facts outlined below. Any adjournment was pointless since there was no certainty that she would attend on any adjourned date. The Tribunal decided to make a short term guardianship order, in part, so that Ms FQM could have an opportunity to put her point of view at the review date.
What did the Tribunal have to decide?
The questions which had to be decided by the Tribunal were:
(1)Is Ms FQM 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?
(2)Should the Tribunal make a guardianship order and if so, what order should be made?
(3)Who should be the guardian?
(4)How long should the order last?
Is Ms FQM 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?
Section 14 of the Guardianship Act 1987 (NSW) (‘the Guardianship 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), Guardianship Act). 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 (NSW); 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 (s 3(2), Guardianship Act).
The Tribunal decided on 13 November 2015 that Ms FQM had a disability which prevents her making important life decisions.
Given that Ms FQM was not participating in the hearing, the current Tribunal decided to review the medical evidence. It noted the diagnosis of Dr Z, psychiatrist, that Ms FQM suffered chronic alcohol dependence and bipolar disorder. Dr Z also said she has a cognitive disorder secondary to a brain injury in 2009. He notes she has major difficulties with tasks that require organisation, planning, judgement, and insight and has a long history of alcohol dependence with inability to adhere to outpatient treatment programs.
A neuropsychological report of 18 September 2015 by Ms Y notes severe impairment of verbal memory and psychomotor speed. Attention, working memory, and some aspects of executive functioning were also impaired. Ms Y said that Ms FQM’s cognitive profile is suggestive of alcohol related brain damage.
The Tribunal accepted that medical evidence and is satisfied that Ms FQM has a disability that prevents her making important life decisions. She is a person for whom the Tribunal could make a guardianship order.
Should the Tribunal make a guardianship order and what order should be made?
The Tribunal must consider all of the following matters set out in s 14(2) of the Guardianship Act before exercising its discretion to make a guardianship order:
(a)the views (if any) of:
(i)the person, and
(ii)the person's spouse, and
(iii)the person's carer and
(b)the importance of preserving the person's existing family relationships, and
(c)the importance of preserving the person's particular cultural and linguistic environments, and
(d)the practicability of services being provided to the person without the need for the making of such an order.
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). When undertaking this task the Tribunal may be guided by the principles that are set out in s 4 of the Guardianship Act (see IF v IG [2004] NSWADTAP 3).
The Tribunal was unable to directly obtain the views of Ms FQM. Mr KSD said that Ms FQM expressed to him anger and confusion at the application for guardianship. He said that when she was sober, she was not opposed to a guardianship order but when intoxicated she was opposed to it.
Ms FQM told a Tribunal officer on 17 February 2016 that she wished to remain living in her unit but didn’t directly provide a view about whether she requires a guardian or not.
None of Ms FQM friends or family attended the hearing.
Mr KSD, the applicant, stated that Ms FQM has been using alcohol to excess for many years but in particular in the last few months. During periods when she is not an inpatient, she has been perpetually intoxicated.
Her home unit was sold just prior to the NSW Trustee and Guardian taking over as her financial manager. The Tribunal was told on 13 November 2015 that she planned to live at the aged care facility. However, her application to reside at the aged care facility was refused. Consequently she faces homelessness. The incoming purchasers of her home unit have agreed to a delay in settlement so far, but such arrangements are only temporary.
Mr KSD said the constant intoxication has led to increased concern by social workers at the clinic of the public health centre and her friends that she is vulnerable to exploitation and physical injury.
This is borne out by the hospital clinical notes that were before the Tribunal. In summary, the notes record that:
(1)On 1 February 2016, Ms FQM was brought to the Emergency Department of a public hospital in East Sydney stating she was unable to climb the stairs to get to her apartment due to alcohol intoxication. She did not wait for treatment and discharged herself.
(2)On 14 February 2016, she presented to the Emergency Department of a public hospital in East Sydney covered in faeces after a drinking binge. She was brought back to the same hospital a few hours later when she was found wandering around and there were concerns for her safety.
(3)On 16 February 2016, the drug and alcohol community nurse visited her home and found her confused and intoxicated, she had faeces and urine soaked clothing on and was in a grossly neglected environment.
(4)She was taken to a public hospital in the Sydney CBD later the same day but refused to stay. The notes record that nursing staff at the hospital had to remove all the foam hand sanitizers from her vicinity as she was trying to consume the contents (that contain some alcohol). She was recorded as being intoxicated.
Mr KSD, the applicant explained to the Tribunal that Ms FQM has a pattern of behaviour whereby she drinks to excess and then calls on friends to assist. Her friends assist for a time until they suffer carer fatigue where upon she continues drinking and calls upon another friend and so starts a pattern of cycling through her friends. Once she runs out of friends she obtains admission to a rehabilitation facility. There have been multiple admissions in this regard over the years.
Mr KSD said currently Ms FQM cognitive function is very poor and she is unable to participate in a care program.
Mr KSD explained that the appointment of a guardian was needed in order to:
(1)Make a decision with respect to Ms FQM accommodation – she will have to move from her unit in East Sydney which has now been sold although the settlement is currently delayed;
(2)Further, a coercive order was needed to ensure Ms FQM attends and stays at hospital because she is unsafe at home and in the community given the extent of her drinking. There is a reasonable prospect that she may recover to the point where rehabilitation and other care programs can be successful, but only if she achieves sobriety. He said history shows sobriety will not be obtained without a coercive order;
(3)Provide Ms FQM with proper treatment – she is currently not receiving sufficient input and care from her friends who assisted in the past but are currently suffering from carer burnout, particularly in the face of her persistent abuse of alcohol. The Tribunal noted that none of Ms FQM’s friends or family attended the Tribunal hearing.
Mr KSD and a fellow social worker told the Tribunal of potentially catastrophic outcomes if Ms FQM continues to abuse alcohol as she has done in recent months. Service providers (including his own – the clinic at the public health centre) would not continue to provide any services to her without a guardianship order since she refuses to engage with them in her present state. Further, she is vulnerable to physical injury through intoxication and vulnerable to exploitation. While sobriety is a matter of choice, treatment programs may be more persistent with a guardian.
The Tribunal considered and accepted all of the evidence set out above and found that Ms FQM had reached a stage of appalling self-neglect. While a guardianship order was not made on 13 November 2015 the current Tribunal considered that circumstances had changed and there was now a need for a guardian. In particular, she had sold her unit but could not move to an aged care facility. She faces homelessness. Further, her alcohol abuse had reached alarming proportions and there did not appear to be any friend or family member to continue as her carer.
Further, the Tribunal accepted the evidence that Ms FQM requires treatment urgently. Thus, the guardian would require a coercive power to ensure Ms FQM receives medical treatment to achieve sobriety and thereafter to have some hope of engaging in treatment and rehabilitation.
The guardian would also need the function of services and medical and dental consents.
The Tribunal decided on the basis of all of this evidence that a guardianship order should be made.
Who should be the Guardian?
The applicant proposes the Public Guardian. The Tribunal is not able to appoint the Public Guardian as a person’s guardian if there is a private person who can be appointed (s 15(3), Guardianship Act).
There is a mention of Ms FQM wishing for her brother to be her guardian. Mr KSD raised this with her but Ms FQM refused to give Mr KSD any contact details for her brother who apparently resides in Western Australia.
The Tribunal found that there is no private person available.
As there is no private person available to be appointed as guardian, the Tribunal appointed the Public Guardian.
How long should the order last?
An initial guardianship order can be made for a period of up to one year from the date on which it was made.
The Tribunal decided to make an order for three months because the application was urgent and the Tribunal did not have the views of Ms FQM in making its order. It is noted that the financial management order made on 13 November 2015 is due to be reviewed in about three months from now and ordered the review in this matter to be held concurrently with the review of the financial management order made on 13 November 2015 in matter number 2015/8933.
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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
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