FXE

[2018] NSWCATGD 4

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

FXE [2018] NSWCATGD 4

Hearing dates:

17 January 2018

Date of orders:

23 February 2018

Decision date:

23 February 2018

Jurisdiction:

Guardianship Division

Before:

P H Molony, Senior Member (Legal)
S E Taylor, Senior Member (Professional)
L Stewart, General Member (Community)

Decision:

The application for guardianship is dismissed.

Catchwords:

GUARDIANSHIP – subject person resides in NSW “border town”– medical treatment undertaken in NSW and Victoria – substitute consent provisions in Victoria and New South Wales jurisdiction  

 

GUARDIANSHIP – interstate recognition of guardianship orders – substitute consent provisions in Victoria and New South Wales – whether NCAT orders overriding objection to medical treatment can be registered by VCAT

GUARDIANSHIP – substitute consent for medical treatment for persons aged 16 to 18 in NSW – parental consent to medical treatment – interrelationship between Guardianship Act and “parental responsibility” provisions of Family Law Act 1975 (Cth)

Legislation Cited:

Family Law Act 1975 (Cth), s 61B-C
Guardianship Act 1987 (NSW), div 3 of pt 3, div 5 of pt 5, pt 5, ss 3(1), 3(2), 14, 14(2), 33(3), 33A(4), 34(1), 36, 46(2), 46(4) 46A
Guardianship and Administration Act 1986 (Vic), pt 4A, 6A, div 2 of pt 6, ss 26, 42HA(4), 42HA(6), 63A-F, 63F(5), 63G
Guardianship and Administration Act 1993 (SA), s 32
Guardianship Regulation 2016 (NSW), cl 10(c)

Cases Cited:

CR (Guardianship) [2009] VCAT 1188
Department of Health & Community Services v JWB and SMB (“Marion's Case”) [1992] HCA 15
EMG v Guardianship and Administration Board of Victoria [1999] NSWSC 501
JAK [2007] NSWGT 23
NGM [2011] NSWGT 7
PT (Guardianship) [2009] VCAT 1187
R v Wallis; Ex parte Employers Association of Wool Selling Brokers (1949) 78 CLR 529
RC (Guardianship) [2007] VCAT 2483
Re Carla (Medical Procedure) [2016] FamCA 7

Category:

Principal judgment

Parties:

Miss FXE (the person concerned)
Ms TBE (mother, carer, and applicant)
The Public Guardian

Representation:

J Sloan (Separate Representative)

File Number(s):

2017/00275467

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. The Tribunal dismissed the application for guardianship orders with respect to Miss FXE.

Background

2. Miss FXE is a 16-year-old young woman who lives with her mother, Ms TBE, in a suburb in regional NSW. Her parents are separated, but Miss FXE maintains regular contact with her father, Mr UZE, who also lives locally. The suburb is a border town on the Murray River.

3. Miss FXE is said to have a moderate intellectual disability because of contracting meningitis, and consequent hydrocephalus, when she was a baby.

4. A permanent ventriculoperitoneal shunt has been surgically implanted to manage her hydrocephalus. This irregularly, but consistently, requires surgical revision to address blockages and pressure problems.

5. While Miss FXE lives in NSW, none of the local NSW hospitals are equipped to undertake that surgery, and, when necessary, it takes place at a children’s public hospital in Melbourne, Victoria. This will continue to be the case until she turns 18, when she will be referred to another Melbourne hospital.

6. Miss FXE has recently turned 16. Her neurosurgeon advised her mother to obtain a guardianship order so that she can continue to be intimately involved in Miss FXE’s care. Since then, Ms TBE has had her online access to Miss FXE’s medical records at the children’s public hospital denied. She is concerned that she will not be included in medical decision making for Miss FXE.

7. According to Miss FXE’s parents it is common for Miss FXE to object to medical treatments that she finds uncomfortable, from blood test to surgery under general anaesthetic. Miss FXE is not a small girl and her objections often take the form of physical resistance.

8. Her parents have applied to the Tribunal to be appointed as her guardians to ensure that they have the legal ability to make decisions regarding Miss FXE’s ongoing medical care, and the ability to continue to access her medical records.

9. The Tribunal had appointed Mr James Sloan to act as separate representative for Miss FXE. Mr Sloan met with Miss FXE before the hearing. He said she was happy for her parents to be appointed as her guardians. As separate representative, he recommended their appointment.

The hearing

10. 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.]

11. At the conclusion of the hearing, the Tribunal reserved its decision because there were a number of legal matters that required consideration. These reasons outline the decision we have reached after considering those issues.

Settlement

12. There was no dispute in this matter.

What did the Tribunal have to decide?

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

• Is Miss FXE 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?

Is Miss FXE 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?

14. 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 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), 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 2007; 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), the Act).

15. The Tribunal had the following reports relating to Miss FXE:

• School Counsellors report prepared by Ms Z and dated October 2015, reporting on assessments of Miss FXE using the Stanford-Binet Intelligence Scale – Fifth Edition (SB5) and the Adaptive Behaviour Assessment System (ABASII). Ms Z concluded –

While [Miss FXE]’s scores on the cognitive assessment … show that [Miss FXE] is functioning in the upper range of moderate intellectual disability, her scores on adaptive functioning assessment confirm that she is functioning in the range of moderate intellectual disability.

• Letter from Dr Y, Neurosurgeon, to Miss FXE’s GP dated 16 March 2017 reporting on a neurosurgery review Miss FXE. This found no evidence of stunt dysfunction at that time. It includes a detailed list of past procedures relating to pressure build-ups and the management of Miss FXE’s shunts.

• A Neuropsychology Report from Ms X the Coordinator of Neuropsychology at the children’s public hospital, Melbourne, relating to an assessment of Miss FXE undertaken in early February 2009, some nine years ago. She was then seven years of age. This report outlined Miss FXE’s medical history and found that her level of intellectual function was in the extremely low-range. She displayed poor attention and concentration, which, “impacted on her ability to perform assessments”. She had difficulty learning complex information, but was able to retain, through repetition, simple information that was more meaningful to her. The report suggested that her memory structures may not have been damaged, and that learning for her might prove to require lots of repetition of material at her assessed age level (then that of a three to four-year-old).

16. While Miss FXE attended the hearing, she did not actively participate in the discussion, nor did she appear to follow what was going on. As time went by she became increasing agitated and anxious to leave.

17. There was no recent assessment of Miss FXE’s level of intellectual disability.

18. Ms TBE told the Tribunal that Miss FXE lives with her partner, Mr W, and her in their home in regional NSW. Miss FXE attends School, where she is in year 11. She loves animals and it is hoped that she might be able to work in a suitable job caring for them.

19. The usual method of decision making for Miss FXE is to frame and explain the issues for her and to try to give her a choice. This, however, is not always possible as there are certain decisions that Miss FXE will not make; for example, she does not like needles, and will sometime stubbornly refuse to have a needle or a blood test. In such circumstances her parents have made the decision they believe to be in her best interest. Similarly, in day-to-day decisions making her parents will decide contrary to her expressed wishes if they believe what she wants to do is not in her best interest.

20. Miss FXE’s father, Mr UZE, maintains regular contact with Miss FXE and has been intimately involved in decision making regarding her health and care. Both he and Ms TBE emphasised their concern at the prospect of being taken out of the decision-making loop regarding Miss FXE’s health care now that she has turned 16.

21. The termination of Ms TBE’s on-line access to Miss FXE’s medical records at the children’s public hospital had emphasised to them the potential problems that Miss FXE might face, if they are unable to make and medical consent decisions for Miss FXE because she has turned 16. Both Ms TBE and Mr UZE were concerned that if she were, “in a mood,” Miss FXE might refuse necessary medical treatment, due to her failure to comprehend why it is necessary. They believed that they need to be able to decide that Miss FXE should have necessary treatment, despite her objections.

22. We were satisfied that Miss FXE has a moderate intellectual disability. We were satisfied on the evidence that because of her intellectual disability Miss FXE is at least partially incapable of managing her person and requires supervision. She is therefore someone for whom this Tribunal could appoint a guardian.

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

23. 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, and

2. the person's spouse, and

3. the person's carer and

2. the importance of preserving the person's existing family relationships, and

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.

24. In the present case a major complicating factor that led us to reserve our decision, was the fact that the main need which was said to justify the Tribunal making a guardianship order, was the need for someone to make decisions regarding major and minor medical treatment that Miss FXE will foreseeably require, not only in New South Wales but also in Victoria.

25. Orders made by this Tribunal do not have extra-territorial application (see EMG v Guardianship and Administration Board of Victoria [1999] NSWSC 501 at [6] per Young J, JAK [2007] NSWGT 23 and NGM [2011] NSWGT 7) and are not automatically enforceable in other states.

26. We wanted time to consider whether there was a demonstrated need for a guardian to be appointed for Miss FXE in NSW, and with what powers? We also wished to investigate whether any order we made could assist with respect to medical treatment in Victoria, which is where it is likely that Miss FXE will receive major medical treatment. This included the effect of registration of any order we might make in Victoria.

Substitute consent for medical treatment for persons aged 16 to 18 in NSW

27. As the parents of a person under 18 both Ms TBE and Mr UZE have parental responsibility for her under the provisions of the Family Law Act1975 (Cth), and can consent to medical treatment on her behalf when she is unable to do so. (See the discussion of Parental Consent below)

28. In addition, as Miss FXE is now over 16, both Ms TBE and Mr UZE may be persons responsible for her for the purposes of pt 5 of the Act (Medical and Dental Treatment), without a guardianship order being made. This is so because s 34(1) of the Act provides:

34   Application of Part

(1)    This Part applies to a patient:

(a)    who is of or above the age of 16 years, and

(b)    who is incapable of giving consent to the carrying out of medical or dental treatment.

…

29. Section 36 of the Act provides that a person responsible may consent to major or minor medical treatment for a patient who is unable to consent (such as Miss FXE), but not special treatment. The Tribunal may consent to medical and dental treatment “in any case”. The types of treatment which are contemplated for Miss FXE are major (an operation under general anaesthetic – see cl 10(c) of the Guardianship Regulation 2016 (NSW)) and minor medical treatments.

30. There is a hierarchy of persons responsible created by s 33A(4) of the Act which provides:

33A   Person responsible

…

(4)    Person responsible for another person There is a hierarchy of persons from whom the "person responsible" for a person other than a child or a person in the care of the Director-General under section 13 is to be ascertained. That hierarchy is, in descending order:

(a)    the person's guardian, if any, but only if the order or instrument appointing the guardian provides for the guardian to exercise the function of giving consent to the carrying out of medical or dental treatment on the person,

(b)    the spouse of the person, if any, if:

(i)    the relationship between the person and the spouse is close and continuing, and

(ii)    the spouse is not a person under guardianship,

(c)    a person who has the care of the person,

(d)    a close friend or relative of the person.

…

Objections to medical treatment in NSW under the Act

31. Section 46(2) of the Act provides, among other things, that a consent given by a person responsible has no effect:

46   Effect of consent

…

(a)    if the person carrying out or supervising the proposed treatment is aware, or ought reasonably to be aware, that the patient objects to the carrying out of the treatment, …

…

32. Circumstances in which a patient is taken to object to treatment are set out in s 33(3) of the Act:

33   Definitions

…

(3)    For the purposes of this Part, a person shall be taken to object to the carrying out of medical or dental treatment:

(a)    if the person indicates (by whatever means) that he or she does not want the treatment to be carried out, or

(b)    if the person:

(i)    has previously indicated, in similar circumstances, that he or she did not then want the treatment to be carried out, and

(ii)    has not subsequently indicated to the contrary.

…

33. However, s 46(4) of the Act provides that an objection to a proposed treatment is to be disregarded if:

46   Effect of consent

…

(a)    the patient has minimal or no understanding of what the treatment entails, and

(b)    the treatment will cause the patient no distress or, if it will cause the patient some distress, the distress is likely to be reasonably tolerable and only transitory.

…

34. Thus, if a person responsible consents to a medically recommended blood test to determine if a patient with a moderate intellectual disability has Ross River Fever: and, beyond the fact that the blood test involves a needle, the patient has little or no understanding of what the treatment really involves; then, an objection by the patient could be disregarded, if the distress caused by the blood test is likely to be both reasonably tolerable and transitory.

35. It should also be noted that this Tribunal may in the limited circumstances set out in s 46A of the Act authorise an appointed guardian (and first person responsible in the hierarchy), at the guardian’s agreement, to override a patient’s objections to treatment. That section provides:

46A   Power of guardian to override patient’s objection to treatment when authorised by the Tribunal

(1)    The Tribunal may confer on the guardian of a patient to whom this Part applies authority to override the patient’s objection to the carrying out on the patient of major or minor treatment.

(2)    The Tribunal may confer such an authority only at the request or with the consent of the guardian and only if it is satisfied that any such objection will be made because of the patient’s lack of understanding of the nature of, or reason for, the treatment.

(3)    The Tribunal may at any time:

(a)    impose conditions or give directions as to the exercise of such an authority, or

(b)    revoke such an authority.

(4)    The guardian may exercise such an authority only if satisfied that the proposed treatment is manifestly in the best interests of the patient.

36. Such situations are fraught with difficulty for both persons responsible and those treating the patient. As a result, it is not uncommon to see such situations resulting in application to the Tribunal.

37. It can be seen from the above that, in NSW, Miss FXE’s parents can consent to medical treatment as her persons responsible under the Act. Whether or not her objections to treatment can be disregarded under s 46(4) of the Act will depend on the circumstances of each case. Her past objections to blood tests based solely on a fear of needles could be disregarded because, beyond knowing that she disliked needles, Miss FXE did not have any understanding of what the treatment really involved, and the distress cause by the blood test was likely to be reasonably tolerable and transitory.

Substitute consent for medical treatment persons aged 16 to 18 in Victoria

38. There is medical consent regime established by pt 4A of the Guardianship and Administration Act 1986 (Vic). Under the Victorian provisions, a person responsible can only consent to medical or dental treatment for a person who is over 18: see pt 4A of the Guardianship and Administration Act - Medical and other treatment, and in particular s 36, which provides –

36 Persons to whom Part applies

(1)   In this Part, patient means a person with a disability who—

(a)   is of or over the age of 18 years; and

(b)   is incapable of giving consent, within the meaning of subsection (2), to the carrying out of a special procedure, a medical research procedure or medical or dental treatment, whether or not the person is a represented person.

…

39. The medical consent provisions in the Victorian Guardianship and Administration Act therefore not do apply to Miss FXE. They will once Miss FXE turns 18.

40. It should be noted that s 42HA(4) of the Victorian Guardianship and Administration Act provides that a person responsible or treating doctor must apply to VCAT for its consent to a proposed treatment if they believe that carrying out the proposed treatment would be contrary to the patient’s wishes. After conducting a hearing, VCAT may consent to that treatment (and it may be carried out) if the requirements of s 42HA(6) of the Victorian Guardianship and Administration Act are met, namely that the Tribunal is satisfied that:

42HA Consent if patient is likely to recover within a reasonable time

…

(a)   the patient is incapable of giving consent; and

(b)   a further delay in carrying out the treatment would result in a significant deterioration of the patient's condition; and

(c)   the treatment would be in the patient's best interests, having regard to the evidence (if any) of the patient's views about such treatment.

Parental consent

41. There is no specific Victorian legislation dealing with the issue of who may consent to medical treatment for persons under 18, with the consequence that the issue is determined in accordance with the common law as provided by s 61C of the Family Law Act1975 (Cth). That section says:

61C Each parent has parental responsibility (subject to court orders)

(1)    Each of the parents of a child who is not 18 has parental responsibility for the child.

…

(2)    Subsection (1) has effect despite any changes in the nature of the relationships of the child's parents. It is not affected, for example, by the parents becoming separated or by either or both of them marrying or re-marrying.

(3)    Subsection (1) has effect subject to any order of a court for the time being in force (whether or not made under this Act and whether made before or after the commencement of this section).

42. Section 61B of the Family Law Act defines “Parental responsibility”:

61 B Meaning of parental responsibility

In this Part, parental responsibility, in relation to a child, means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.

43. Put simply, if a child is incapable of giving informed consent to a proposed medical treatment, then his or her parents and guardians may do so: see Department of Health & Community Services v JWB and SMB (“Marion's Case”) [1992] HCA 15 per Mason C.J., Dawson, Toohey, and Gaudron JJ at [14]. This does not extend to sterilization (Marion’s Case), but does extend to very serious therapeutic interventions: Re Carla (Medical Procedure) [2016] FamCA 7, per Forrest J. In Marion’s Case at [14] the majority of the High Court explained that:

In the case of medical treatment of those who cannot consent because of incapacity due to minority, the automatic reference point is the minor's parent or other guardian. Parental consent, when effective, is itself an exception to the need for personal consent to medical treatment.

44. It follows that the situation that has applied for the past 16 years with respect to Miss FXE’s parents consenting to the treatment she receives at the children’s public hospital (including consenting to treatment to which she objected) will, as a matter of law, continue until she turns 18, for so long as she is unable to give medical consent herself.

45. Why Miss FXE’s mother was told that she needed a guardianship order when Miss FXE turned 16 is a mystery, especially given that a guardian cannot be appointed for a young person in Victoria before they turn 18. The reality is that while Miss FXE remains incapable of consenting to medical treatment, her parents can, until she turns 18, continue to consent to medical treatment for her in Victoria relying on the same legal powers they have exercised as her parents for the past 16 years.

46. When she reaches 18, they will be able to consent to medical treatment for her on the same basis as any other persons responsible in Victoria.

If the Tribunal made a NSW guardianship order for Miss FXE, would it be capable of recognition in Victoria?

47. Both the NSW Guardianship Act and the Victorian Guardianship and Administration Act have provisions relating to the recognition or registration of interstate orders. The Victorian provisions are found in pt 6A – Interstate Orders, ss 63A to 63G of the Guardianship and Administration Act. Guardianship orders made by NCAT are corresponding laws for the purpose of those provisions (see the definitions in s 63B and s 63C of that Act).

48. Section 63E, Registration of interstate orders, relevantly provides –

(1)   The Tribunal may register an interstate order on the application of—

(a)   a guardian or administrator of a represented person in a participating State; or

(b)   …

(3)   On registration of an interstate order, the Tribunal must notify the determining body which made the order that the order has been registered.

(4)   An interstate order registered under this Part has the same force and effect according to its terms as a guardianship order or an administration order made under this Act.

(5)   A guardianship order or an administration order made under this Act is not revoked in Victoria if that order is registered in a participating State.

49. Once registered, interstate orders may be reassessed (reviewed) by VCAT, which can appoint a new guardian or make orders it could make on a reassessment under Division 2 of Part 6, including orders amending, varying, continuing, replacing or enforcing the original order: see s 63F(5) of the Victorian Guardianship and Administration Act. Subsection (5) provides:

63F Reassessment of interstate orders

…

(5)   The revocation, amendment or variation of an interstate order by a determining body after the order is registered under this Part has no effect in Victoria.

50. Thus, an obvious question that arises is whether VCAT can register a guardianship order made by NCAT with respect to a person aged between 16 and 18. In RC (Guardianship) [2007] VCAT 2483, VCAT Deputy President John Billings considered that question. He wrote:

7. The provisions relating to registration of an interstate order may be contrasted to those relating to recognition of an interstate enduring power of attorney (EPA). Section 116 of the Instruments Act 1958 provides in effect that an EPA made in another State or Territory that complies with the requirements of that jurisdiction is to be taken to be an EPA made under, and in compliance with the Act, to the extent the powers it gives could validly have been given by a Victorian EPA. On the other hand, the Guardianship and Administration Act 1986 does not qualify the Tribunal’s power to register an interstate guardianship or administration order, for instance by prohibiting the registration of an order if it is made in respect of a person who has not attained the age of 18 years. And the Second Reading Speech for the legislation that inserted Part 6A in the Guardianship and Administration Act 1986 gives no indication that any qualification like that was intended. (Hansard, Legislative Assembly, 22 April 1999, at pp. 593-6).

8. I also note that section 4 (1) of the Guardianship and Administration Act 1986 provides that it is the intention of Parliament that the provisions of the Act be interpreted and that every jurisdiction conferred by the Act is to be exercised or performed so that the means which is the least restrictive of a person’s freedom of decision and action as is possible in the circumstances is adopted; the best interests of a person with a disability are promoted; and the wishes of a person with a disability are wherever possible given effect to.

9.   It was not possible for me to ascertain RC’s wishes or explore less restrictive options but it was apparent that the NSW Tribunal appointed a guardian after following its proper procedures. In my view it would have been contrary to RC’s best interests to decline to register the interstate order, and so deny her the protection that the NSW order affords her, on the grounds that the Tribunal could not itself have made a guardianship order for her.

51. The ready ability to register and give force to a NSW guardianship order in Victoria is not as clear cut as one might think from a reading of the decision in RC, the vital issue being, “What constitutes a guardianship order?”.

52. In PT (Guardianship) [2009] VCAT 1187, a guardian sought registration in Victoria of a NSW guardianship order in relation to PT, a 27-year-old man with cerebral palsy. The NSW order had recently been varied by empowering the guardian to authorise other persons – including members of the NSW Police Force and the Ambulance Service of NSW – to take PT to a place approved by the guardian, to keep him there, and to return him there should he leave. In considering the application Billings DP observed that:

5.   Registration of the NSW order has the effect that the guardian could decide whether PT would remain in Victoria or return to his accommodation in New South Wales.

6.   There is more than one way of viewing the variation of the NSW order. One way would be that the guardianship order consequently incorporated the enforcement power. As a guardianship order it would still be capable of registration. Another way would be that, alongside the guardianship order, there was now a separate order containing the enforcement power. The question then would be whether that separate order could be said to be a “guardianship order” for the purpose of the declaration published in the Gazette. Whichever view is to be preferred, a practical problem would remain that, on its terms, the NSW order authorised him to direct NSW, not Victorian, officers. Victorian officers could decline to act on a direction by the guardian made pursuant to an order that did not expressly empower him to direct them - or did not expressly empower them. (I note, in this context, that the NSW order gave authority to the guardian to give directions whereas an order made under the Victorian Act would directly give authority to police or ambulance officers to act upon the guardian’s directions).

53. Because of the uncertainty as to the nature of the varied order (a guardianship order or a separate order granting authority to enforce a guardianship order), Billings DP registered the guardianship order and made a separate order under s 26 of the Victorian Guardianship and Administration Act authorising Victorian Police and Ambulance officers, “to take necessary action to comply with the guardian’s decisions in the exercise of powers and duties conferred by the guardianship order”. The Tribunal set an expiry date for that order.

54. In CR (Guardianship) [2009] VCAT 1188, the applicant sought to have registered a full guardianship order from the South Australian Guardianship Board. The guardian also sought from VCAT an order recognizing an order made under s 32 of the Guardianship and Administration Act1993 (SA) which provided that CR “reside in such place as the guardian from time to time thinks fit”. If in force in Victoria, the order would enable the guardian to direct the Federal Police to stop her boarding an aircraft.

55. Section 32 of the Guardianship and Administration Act (SA) relevantly provided:

32—Special powers to place and detain etc protected persons

…

(1)    The [Tribunal], on application made by the guardian of a protected person -

(a)    may, by order, direct that the protected person reside –

(i)   with a specified person or in a specified place; or

(ii)   with such person or in such place as the guardian from time to time thinks fit,

… according to the terms of the Board’s order; and

(b)    may, by order, authorise the detention of the protected person in the place in which he or she will so reside; and

(c)    may, by order, authorise the persons from time to time involved in the care of the protected person to use such force as may be reasonably necessary for the purpose of ensuring the proper medical or dental treatment, day-to-day care and well-being of the person.

(1a)    An application made by a person under this section may be heard at the same time as his or her application for appointment as guardian.

56. Billings DP noted that registration of interstate orders regime in pt 6A of the Victorian Guardianship and Administration Act enabled the registration of guardianship or administration orders, not other types of orders authorised by that legislation. He wrote:

11. As discussed in PT (Guardianship) [2009] VCAT 1187 - another case in which I have given written reasons today - if there were an order that operated in the way that an order under section 26 of the Victorian Act operates, there is doubt about whether that order should be viewed as part of a guardianship order or, alternatively, as a separate order.

12. Whatever the proper view about an order giving a guardian power to enforce a guardianship order, a section 32 order is an order is materially different in nature. The proper interpretation of section 32 is of course a matter of South Australian law, but it is clear that a section 32 order neither appoints a guardian to make a decision nor empowers a guardian to enforce the guardianship order. Rather, a section 32 order is an order of the Board itself - in this case directing CR to reside at a place determined by the guardian. The words of sub-section (1A) of section 32 reinforce the view that an application for a section 32 order is separate to an application for a guardianship order. So too are the orders separate. I do not read the Victorian Act or the declaration made under the Act as enabling the Tribunal to register the section 32 order. I note further that the Second Reading Speech for the law that inserted Part 6A in the Guardianship and Administration Act 1986 indicates that the amendments were designed to allow for the registration of “interstate guardianship and administration orders” – not any order or all orders made under corresponding laws. (Hansard, Legislative Assembly, 22 April 1999, at p. 595).

57. While it is not for us to determine how Victorian law operates. These decisions point to a real doubt as to whether, if we did appoint Miss FXE’s parents as her guardians with health care and medical and dental consents functions in NSW, and also gave them authority to override her objections to treatment under s 46A of the Act, the s 46A (of the Act) order would be able to be registered in Victoria. The conferral of such a power on guardians in NSW is an entirely separate matter from a guardianship order made under div 3 of pt 3 of the Act, instead being an additional power that the Tribunal may grant guardians, with the guardians agreement, under div 5 of pt 5 of the Act. This raises doubts as to whether VCAT would view a s 46A (of the Act) order as part of a guardianship order.

58. Further, because the Victorian Guardianship and Administration Act does not contain a provision similar to s 46A of the Act, instead requiring that VCAT determine whether or not a medical treatment contrary to a patient’s wishes be undertaken (s 42HA(6), Victorian Guardianship and Administration Act), there is also an issue as to whether VCAT could make an order under s 26 of the Victorian Guardianship and Administration Act similar to that which this Tribunal makes under s 46A of the Act. Once could take the view that s 46HA of the Victorian Guardianship and Administration Act makes provisions for what is to happen if a treatment is against a patient’s wishes, and that s 26 of the Victorian Guardianship and Administration Act therefore does not empower VCAT to make an order authorising a guardian to override a patient’s objections to treatment, This would be consistent with the general principle of statutory interpretation that, “an enactment in affirmative words appointing a course to be followed usually may be understood as importing a negative, namely, that the same matter is not to be done according to some other course”, per Dixon J in R v Wallis; Ex parte Employers Association of Wool Selling Brokers (1949) 78 CLR 529 at 550.

59. There are therefore real reasons to doubt whether an order made under s 46A of the Act is registerable and effective as a guardianship order in Victoria, or whether VCAT could make a similar order, giving a guardian power to override a patient’s objections to treatment under the provisions of the Victorian Guardianship and Administration Act.

Conclusion

60. As a consequence, while a guardianship order made in NSW by this Tribunal appointing Miss FXE’s parents her guardians with health care and medical and dental consents functions would be registerable in Victoria, there are real reasons to doubt, if we empowered her guardians under s 46A of the Act to override her objection to treatment, that the s 46A (of the Act) order would be registerable or effective in Victoria.

61. Simply being registered as guardians in Victoria would not put her parents in any better position that they are now in in Victoria. The same appears likely to be the case once she turns 18. They could still consent to medical treatment for her as her persons responsible, rather than as her parents.

62. Being appointed as guardians in NSW would not change the fact that any consent Miss FXE’s parents give to medical treatment in NSW will be given either as her parents or as her persons responsible under the Act, although their position on the hierarchy would change (with no person being ahead of them). Given the provisions of s 46(4) of the Act regarding the circumstances in which a patient’s objections to treatment in NSW can be disregarded, we question whether – for the short to median term at least – any objections made by Miss FXE are likely to be made with the requisite understanding of what the treatment entails and with real distress a likely consequence.

63. Therefore, we do not think that there is a clear need to appoint a guardian for Miss FXE in NSW, whether with or without power to override her objections to treatment.

64. We therefore determined to dismiss the application for guardianship order.

65. We think this result will make no difference to the ongoing involvement of Miss FXE’s family in her care. Her access to medical services should remain the same, with or without an order. While we are dismissing an application brought by her mother, it was clear to us that the application was only made because Ms TBE had been advised that a guardianship order is necessary. We have spent considerable effort explaining why that advice is not correct in Miss FXE’s circumstances.

66. The application for guardianship is dismissed.

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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 2018