GKN

[2017] NSWCATGD 31

NSW Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:

GKN [2017] NSWCATGD 31

Hearing dates:

12 October 2017

Date of orders:

12 October 2017

Decision date:

12 October 2017

Jurisdiction:

Guardianship Division

Before:

M D Schyvens, Deputy President
Dr M J Wroth, Senior Member (Professional)
Dr M Spencer, General Member (Community)

Decision:

The guardianship order for GKN made on 5 October 2017 has been reviewed. The order now is as follows:

 

1. The Public Guardian is appointed as the guardian.

 

2. This is a continuing guardianship order for a period of three months from 12 October 2017.

 

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

 

FUNCTIONS:

 

4. The guardian has the following functions:

 

a) Accommodation

 

To decide where GKN may reside.

 

b) Health care

 

To decide what health care GKN may receive.

 

c) Medical/Dental consent

 

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

 

d) Services

 

To make decisions about services to be provided to GKN.

 

e) Legal services

 

To make decisions for GKN in relation to access to legal services.

 

AUTHORITY:

 

5. The guardian has the following authority:

 

a) Authority to override objections to medical treatment

 

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

 

CONDITION:

 

6. The condition of this order is:

 

a) Standard Condition

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

Catchwords:

GUARDIANSHIP – end of term review of guardianship order – where person is patient in intensive care unit with spinal cord injury – different opinions about person’s decision-making capacity – fluctuating capacity – need for significant decisions about health care including end-of-life decisions – guardianship order renewed – Public Guardian appointed

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

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Mr GKN (the person under guardianship)
The Public Guardian of NSW

Representation:

N Danis, separate representative for Mr GKN

File Number(s):

NCAT 2017/00299409

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

STATUTORY REVIEW OF GUARDIANSHIP ORDER

What the Tribunal decided

1. The Tribunal reviewed the previous guardianship order for Mr GKN made on 5 October 2017 and renewed it for a period of three months. The appointment of the Public Guardian of NSW as Mr GKN’s guardian was continued with the authority to make decisions for him about his accommodation, health care, consent (or otherwise) to medical and dental treatment (including the authority to override any objections to treatment), and access to legal services and services generally.

Background

2. The reasons for the Tribunal’s orders of 5 October 2017 were distributed to the parties to the original application by the Tribunal’s Registry on 9 October 2017.

3. Those reasons provided the following useful background leading up to the current proceedings commencing at [1]:

[Mr GKN] is 49 years of age and is reported to have an intellectual disability. [Mr GKN] is currently incarcerated at [security prison complex A] in Sydney New South Wales. [Mr GKN] may be eligible for release no earlier than 14 December 2017.

[Mr GKN] was admitted to [a public hospital] on 25 September 2017 following an injury to his neck whilst in custody. His injury is said to have occurred on 24 September 2017. The circumstances surrounding the cause of his injury are unknown. The injury to [Mr GKN]’s neck required surgical fixation of his cervical spine, under general anaesthetic, which took place at the [public hospital] on 25 September 2017. Following his surgery, [Mr GKN] was transferred to the Intensive Care Unit (ICU) where he was intubated and ventilated. We understand this is routine procedure for a patient following a spinal cord injury. Such treatment assists a patient with breathing particularly where the patient’s respiratory system may have been compromised. On 29 September 2017, [Mr GKN] was extubated and remains in the ICU of the [public hospital].

An application for the appointment of a guardian was received by the Tribunal on 4 October 2017. The applicant is [Ms LZT], Manager, Statewide Disability Services within Corrective Services of New South Wales. [Ms LZT] states in the application that a Person Responsible for [Mr GKN] is unable to be located and there are concerns that he has provided instruction to the hospital not to be resuscitated with CPR, intubation and ventilation. [Ms LZT] and the Senior Psychologist with Statewide Disability Services with Corrective Services, [Ms Z], are both of the view that [Mr GKN] does not have the capacity to make such decisions.

………..

The application was listed on an urgent basis before us. We convened the hearing by telephone from the Local Court in [regional NSW]. [Mr GKN] and [Dr Y], Specialist in ICU at [the public hospital], both participated by telephone at [Mr GKN]’s bedside. [Ms LZT] and [Ms Z] also participated by telephone as did Ms Amanda Smith on behalf of the Public Guardian.

4. Upon the conclusion of the hearing on 5 October 2017, the Tribunal made a reviewable guardianship order for Mr GKN for seven days, appointing the Public Guardian of NSW with the authority to make decisions for him about his health care and to provide substitute consent (or otherwise) to medical and dental treatment as required. An order was also made that Mr GKN be separately represented in the proceedings to review the order.

5. In its reasons, the Tribunal provided the following comments at [39] as to expectations upon participants at the hearing to review the short-term guardianship order:

Given the urgent nature of the hearing and the fact that a number of [Mr GKN]’s treating team were not able to participate in the hearing, we determined that the order should be as short as possible. Given that arrangements will have to be made for [Mr GKN]’s treating team to appear at a further hearing and for all necessary documents held by Corrective Services to be produced to the Tribunal, and the treating [team], we determined that the order should be made for a period of seven days.

It is requested that all further evidence concerning [Mr GKN]’s capacity and general healthcare be provided to the Tribunal registry as soon as possible. This includes the reports referred to by [Ms Z] concerning assessments undertaken to ascertain a diagnosis of [Mr GKN]’s intellectual disability and any assessment or notes held by the hospital which were used to make a conclusion concerning [Mr GKN]’s previous and current capacity to make lifestyle and health decisions.

6. A hearing to review the guardianship order was listed for 12 October 2017 and a Notice of Hearing was issued to the parties to advise of the proceedings on 9 October 2017.

7. At the hearing before us Ms LZT, the original applicant and manager of Statewide Disability Services, informed us that Mr GKN had a long history of homelessness, alcoholism, and incarceration. When not in custody she understood that Mr GKN’s predominant residence had been at a homeless men’s hostel in inner-city Sydney. She was not aware of him having any contact with family.

8. As to the circumstances as to how Mr GKN came to suffer the injuries which resulted in his transfer to the public hospital, the only new information we were provided with was the following contained in a document titled “NSW Department of Corrective Services Incident Details” dated 25 September 2017 and handed up at the hearing on 12 October 2017 by Ms LZT:

At approximately 7:15 am ISU staff were conducting ISU head checks and breakfast issue. On opening cell 6 occupied by MIN [xx] [Mr GKN], Officer [redacted] saw [Mr GKN] on the floor not responding to her call. On further inspection blood was seen near [Mr GKN]’s head. At approx. 7.16am a medical emergency call to the clinic was made via radio. At approx. 7:18am the clinic staff called for a (sic) emergency ambulance. At approx. 7:30 the ambulance arrived and attended to [Mr GKN]. At approx. 7:50am [Mr GKN] was escorted to [a public hospital].

9. Ms LZT explained that “ISU” stood for Integrated Support Unit, a unit within the security prison complex A where inmates were monitored at all times. She told us that Mr GKN was in this unit as he had been assessed as being at acute risk of self-harm or suicide. Ms LZT also informed us that in respect of his current custodial sentence, Mr GKN was incarcerated on 26 February 2017 and was eligible for parole on 14 December 2017, his expiry of term being 14 June 2018.

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. Ms Nihal Danis was allocated by the Mental Health Advocacy Service to perform the role of Mr GKN’s separate representative.

12. As at time of hearing, Mr GKN remained critically unwell and an inpatient within the Intensive Care Unit (ICU) of [the public hospital]. To facilitate the possible participation of Mr GKN and members of his treating team in the proceedings, the Tribunal’s Registry requested that the hearing be conducted at the ICU. The ICU consented to this proposal and the Tribunal records its thanks to the hospital for accommodating the Tribunal.

13. Taking account of advice from Mr GKN’s treating team as to his condition at the time of the hearing and wishing to minimise any distress caused to him seeking his participation in the hearing, with the consent of the parties, we conducted the hearing primarily in the absence of Mr GKN in a meeting room attached to the ICU. Midway through the proceedings the Tribunal members briefly convened at Mr GKN’s bedside together with his separate representative, Ms Danis, before then reconvening again in the meeting room in the absence of Mr GKN.

14. Due to his condition at the time of the hearing, it was very difficult for us to communicate with Mr GKN or to form a clear view as to whether he understood the purpose of our attendance at his bedside.

What did the Tribunal have to decide?

15. On reviewing the current guardianship order the Tribunal may renew, renew and vary the order, or determine that the order is to lapse.

16. The questions to be considered by the Tribunal are:

• Is Mr GKN someone for whom the Tribunal could make an order because he continues to have a disability which prevents him from being able to make important life decisions?

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

• Who should be the guardian?

• How long should the order last?

Is Mr GKN someone for whom the Tribunal could make a further order because he continues to have a disability which prevents him from being able to make important life decisions?

17. Section 14 of the Guardianship Act 1987 (NSW) provides that the Tribunal may make a guardianship order for a person if it is satisfied that he/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:

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), Guardianship Act).

18. When the previous order was made, the Tribunal found that Mr GKN had a disability being mild to moderate intellectual disability and chronic schizophrenia and was intermittently unable to make important life decisions, stating as follows in the reasons for decision commencing at [25]:

It was evident to us that the Tribunal would benefit from speaking to the entire treating team with respect to getting a holistic picture concerning [Mr GKN]’s previous and long term capacity to make informed lifestyle decisions, particularly regarding medical and dental and health care decisions. However, we are satisfied by the evidence of [Ms Z] that [Mr GKN] has both a mental illness (chronic schizophrenia) and an intellectual disability. We accepted that [Mr GKN]’s mental illness was worsening during his period of incarceration. We also accepted the evidence of [Dr Y] that [Mr GKN]’s current capacity to make some medical and health care decisions is fluctuating intermittently. We were unable to obtain a clear view from [Mr GKN] as to whether he wishes the hospital to carry out end of life procedures. However, upon questioning of [Mr GKN] as to whether he wished to be resuscitated should he be in a position where he may die he replied ‘yes’. [Mr GKN]’s evidence during the hearing was inconsistent with the evidence [Dr Y] provided with respect to the instruction provided to the treating team on or about 29 September 2017. Given [Mr GKN]’s current medical condition, the Tribunal found it extremely difficult to communicate with him during the hearing, which may indicate, but which is not a final determinative factor, that he is at least partially affected by a disability in being able to provide informed consent concerning his current medical and health care matters.

We accepted the evidence of [Dr Y] that [Mr GKN]’s current capacity to make medical and healthcare decisions is fluctuating. [Mr GKN]’s responses to our questions about resuscitation and his previous response to the treating team is evidence of this.

Given our findings, we are satisfied [Mr GKN] has a mild to moderate intellectual disability, a longstanding diagnosis of chronic schizophrenia which was worsening during his incarceration, and that [Mr GKN] is intermittently incapable of making informed lifestyle decisions. We were satisfied that [Mr GKN] has a disability as defined by the Guardianship Act and is a person for whom we could make a guardianship order.

19. We were not provided with any additional documentary evidence prior to the hearing going to Mr GKN’s cognitive capacity that was not previously before the Tribunal who conducted the original proceedings on 5 October 2017. Two documents on the topic were however submitted to us during the course of the hearing.

20. First, in providing a historical context as to Mr GKN’s cognitive capacity, Ms Danis provided us with a letter dated 23 August 2016 authored by Dr X, Senior Staff Specialist Psychiatrist with security prison complex B. That letter (the intended recipient of which was unknown) stated, in part, as follows:

Presentation:

[Mr GKN] is housed at [security prison complex B]. He is in the clinic, and his symptoms of schizophrenia remain active, however he is not currently a risk to himself or others due to his mental illness.

Accommodation:

[Mr GKN] will be staying at [a homeless men’s hostel], at [xx] St Sydney.

History of presenting illness:

Long history of schizophrenia, with prior admissions to [another public hospital], as well as long stints of being homeless in the [West Sydney] and Sydney CBD areas.

…

Diagnosis:

Schizophrenia.

Opinion:

[Mr GKN] is starting to improve on his medications but remains psychotic, just yesterday he heard the walls speak to him to hurt himself. He suffers from a mental illness for which treatment is available in a hospital, but he does not meet the definition of a mentally ill person as defined in the Mental Health (Forensic Provisions) Act 1990. He is not developmentally disabled, and he is not mentally disordered. However, due to his mental illness (schizophrenia) he would be suitable for court diversion under a section 32.

21. Second, Ms Z, Senior Psychologist with Statewide Disability Services, provided us with a document titled “Psychological Report” dated 11 October 2017 which she advised had been prepared for the benefit of the appointed guardian, the Public Guardian, after having interviewed Mr GKN on 3 and 11 October 2017,and which stated, in part, as follows:

Presentation

On both occasions, [Mr GKN] was interviewed bedside. He displayed limited eye contact, and at times was difficult to interview due to limitations on his communication ability secondary to current medical situation. His speech was mumbled, and comprised of monosyllabic answers. He was unable to elaborate on questions asked and his self-report tended to be contradictory at times. He was oriented to person, place time.

Mental Health

[Mr GKN] has been diagnosed with schizophrenia and is currently medicated with depot Invega and oral Olanzapine. Throughout his current incarceration [Mr GKN]’s mental state has to waxed and waned (sic), and he has continued to display positive symptoms of schizophrenia, despite being medicated.

Cognitive Functioning

[Mr GKN]’s intellectual functioning has been assessed on two occasions while in custody with CSNSW. An assessment conducted on 16 June 1995 using the Wechsler Adult Intelligence Scale – Revised found him to be functioning in the extremely low range, while a more recent assessment conducted on 21 April 2017 using the Wechsler Abbreviated Scale of Intelligence – Second Edition, also found his level of functioning to fall in the extremely low range. Taken together with deficits in adaptive functioning, [Mr GKN] meets criteria for an Intellectual Disability.

At a functional level, [Mr GKN] functions on a concrete level and has difficulty understanding abstract concepts, conceptualising future or hypothetical situations, and evaluating costs and benefits of decisions. He finds navigating subtleties of interpersonal relationships and social norms challenging, and his capacity for insight and self-reflection is limited.

Throughout his custodial history, [Mr GKN] has demonstrated difficulties with comprehending the seriousness of his situation, which is highlighted by his failure to comprehend the nature of Orders imposed upon him and the consequences of breaching these.

Current Situation

[Mr GKN] only has a rudimentary understanding of his current situation, and lacks insight into the gravity of his medical needs both in the short and long-term future. He is unable to comprehend the risks and consequences associated with any decisions that he may take.

Recommendations to the NSW Public Guardian

Taking together [Mr GKN]’s level of cognitive functioning, mental state, and lack of insight, it is apparent that he does not have the capacity to make informed decisions regarding his medical needs and treatment. It is therefore recommended that a Public Guardian be appointed to continue to act in a decision making capacity.

22. Whilst acknowledging that Mr GKN was very difficult to interview due to his current medical condition, Ms Z informed us that it was well documented throughout his many years of involvement with Corrective Services that Mr GKN has always presented with “evident comprehension difficulties”.

23. Ms Z said that in both of her recent interviews with Mr GKN, she focussed on discussing his current medical condition to assess his level of understanding and ability to comprehend his future care needs given his paralysis. She was of the view that he did not understand the severity of his condition, was only fixated on his parole date, and could not provide any views on his future care. She was of the opinion that at the time of the hearing Mr GKN did not have the cognitive capacity to make decisions as to his medical and health care treatment nor his longer term care needs.

22. Dr W, ICU Staff Specialist, had been directly involved in Mr GKN’s care. Most of the evidence provided by Dr W related to Mr GKN’s capacity at the time he was first admitted to ICU. At that time it was recorded that Mr GKN had capacity to make decisions as to his medical treatment and made the decision not to be resuscitated if the need arose, an event which Dr W described as Mr GKN making an advanced directive. Dr W informed us that his main concern was the impact of the Tribunal’s initial order, which intentional or otherwise, was to have revoked Mr GKN’s express wish not to be ventilated and was against the weight of medical opinion.

23. As to the matter for determination by us, Mr GKN’s current decision-making ability, Dr W described Mr GKN’s competency as fluctuating. He said that Mr GKN seemed to understand the gravity of his injury, that he is paralysed, but that he has little capacity to retain information.

24. Dr V, staff specialist psychiatrist, attended the hearing and indicated that she had been involved in Mr GKN’s care for three days. Unfortunately, she informed us that she was not in a position to provide us with a view on Mr GKN’s capacity to make the life decisions that currently confronted him. She informed us that she had met Mr GKN and assessed his mental health, but whilst she described herself as being under “a lot of pressure to do a capacity assessment”, she concluded that it was not appropriate to do so when she did not know the specific questions for which capacity was to be assessed nor the information that had been provided to Mr GKN about his condition. She said that her feeling was that Mr GKN understands that he is incapacitated but knowing his history, it was unlikely that he had the capacity to make complex decisions.

25. As previously outlined in these reasons, we endeavoured to speak with Mr GKN at his bedside in the presence of Ms Danis. We then continued the hearing in the absence of Mr GKN and summarised our engagement with Mr GKN. After introducing ourselves to Mr GKN and explaining why we were at the ICU, we asked him what he knew about his medical condition. Mr GKN was struggling for breath throughout and it was very difficult for us to understand him. The only responses we obtained from Mr GKN with any clarity were “I am in a bad way”; “I need help”; and “get me a new nursing home”.

26. We enquired of the representative of the Public Guardian, Ms Sunita Hora, whether any steps had been taken by the appointed guardian to have Mr GKN’s cognition assessed. Ms Hora advised that no such steps had been taken and offered no view on Mr GKN’s current capacity. Ms Hora had not visited Mr GKN herself and so was unable to comment on his view or wishes.

27. Since being allocated the role of Mr GKN’s separate representative for the proceedings, Ms Danis informed us that she had met with Mr GKN twice, once the day prior to the hearing and again on the day of the hearing. She submitted that she did not believe there was a basis for the continuation of the order. She advised that she had formed this view following her interactions with Mr GKN.

28. Ms Danis expressed the view that Mr GKN:

Has the capacity today to say what he does and doesn’t want from my discussions with him.

31. She went on to inform us that Mr GKN was fixated on his parole and:

He said to me “I am a fucking mess. I need help. I need looking after”…..

He has made it clear to me today that he wants to be kept alive.

32. On an examination of all of the evidence before us, we were satisfied that we should conclude that Mr GKN remains a person with a disability and that his cognitive capacity is currently such that he cannot make fully informed major life decisions. He remains a person for whom we could make a guardianship order.

33. In reaching this conclusion, we placed significant weight on the evidence of Ms Z. Ms Z’s evidence was that Mr GKN has had evident comprehension difficulties for many years and that upon her review of his history and recent interviews with him had concluded that he does not have the cognitive capacity to make decisions regarding his medical treatment and ongoing care.

34. The evidence provided to us by Dr V and Dr W, while not as decisive as the evidence of Ms Z, was not in contradiction of her evidence.

35. Dr V, whilst advising us that she had not performed a formal capacity assessment on Mr GKN, did state that upon reviewing his history and being aware of his current medical condition, she felt that it was unlikely he had the capacity to make complex healthcare decisions.

36. Dr W described Mr GKN’s cognition as fluctuating.

37. We note that we placed little weight on the submissions of Ms Danis, Mr GKN’s separate representative, in regards to his capacity. This is because her submissions were apparently based on her own assessment of Mr GKN’s capacity, focussing on his ability to express his wishes rather than an objective analysis of the evidence available to us all.

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

38. 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 further 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.

39. These matters have no hierarchy or weighting and each is a mandatory consideration. However, the Tribunal must undertake a balancing exercise for its consideration of the matters in s 14(2) of the Guardianship Act. 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).

40. When the previous order was made, the Tribunal concluded there was a need for a guardian to be appointed for Mr GKN stating as follows in the reasons for decision commencing at [31]:

The injury to [Mr GKN]’s cervical spine at C5/C7 level has caused paraplegia and significant upper limb weakness, bowel and bladder dysfunction and some respiratory muscle compromise. The neurological deficits are thought to be permanent. This deterioration places [Mr GKN] at some risk of respiratory difficulty or indeed respiratory failure, which may require the treatment team to carry out end of life instructions at any time.

[Dr Y] also stated in his evidence that [Mr GKN] has only recently been refusing medical treatment such as oral medication, which is necessary to ensure stability, particularly with regard to his mental health.

[Dr Y] concluded his evidence by stating that, in his view, the appointment of a guardian is appropriate and described it as “a right step”.

The applicant, [Ms LZT], and [Ms Z] both submitted that it is in [Mr GKN]’s best interests for a guardian to be appointed with the functions of medical and dental consent (over objection) and health care.

Ms Amanda Smith found the Tribunal hearing difficult to follow, given that it took place on the telephone. However, Ms Smith said that, if the Public Guardian was appointed, the Guardian could decide to see [Mr GKN] in a short period of time (with the appropriate available resources) and the Duty Guardian would be available 24 hours a day to make decisions concerning [Mr GKN]’s health care and medical and dental matters.

The Tribunal asked [Mr GKN] if he agreed that a guardian was necessary to be appointed for him. [Mr GKN] said ‘no’. However, [Mr GKN] did not appear to fully appreciate the nature of the hearing, given that he on a number of occasions asked the Tribunal whether his release date from prison would remain as being 14 December 2017.

We accepted the evidence set out above in terms of the need to appoint a guardian. We were satisfied that there is a need to appoint a guardian for [Mr GKN]. It is uncontroversial that there are decisions to be made for [Mr GKN] around his ongoing health care, including end of life decisions and medical and dental consent matters over objection.

41. It was clear to us on the evidence presented at the hearing that Mr GKN’s condition remained critical and precarious. In fact, his condition deteriorated during the course of the hearing, Dr W informing us shortly after we had met with Mr GKN that his voice box was now failing and he would shortly need to be intubated.

42. It was uncontroversial amongst all who participated in the hearing that there were significant decisions to be made in the days and weeks ahead regarding Mr GKN’s treatment. Most significantly, this included whether or not a “do not resuscitate” direction should be made or not.

43. For the reasons outlined previously, we were satisfied that Mr GKN was currently unable to make these decisions for himself. At best, the evidence before us was that he has fluctuating capacity to make such decisions. We were satisfied that there is a current need for a guardian to remain appointed for Mr GKN with the authority to provide substitute consent to medical and dental treatment and to make decisions as to his health care generally including end-of-life decisions. Given Mr GKN’s fluctuating capacity and the evidence before us that he has moved from a position of not wishing to be resuscitated upon admission to a position of stating that he wishes to be kept alive, we believed it appropriate to grant to the guardian the additional authority to override Mr GKN’s objection to treatment if required.

44. Dr W informed us that Mr GKN was unable to move his legs and he had limited movement of his arms, conditions which were permanent due to his injuries. He said that Mr GKN constantly aspirates on his own saliva and was at a high risk of respiratory failure or lung collapse. Dr W was of the opinion that there was the potential that Mr GKN would need to be a patient of an ICU for the rest of his life and could not see how discharge into the community in all of his circumstances could be feasible.

45. Dr Bonne Lee, a spinal cord injuries specialist physician associated with the hospital, described Mr GKN’s needs as being such that they were beyond the capabilities of a spinal ward. If Mr GKN reached a stage where he could leave the ICU, he would require 24-hour care due to his mental illness and disability, and constant catheterisation. He agreed with the comments of Dr W in that he could not see how Mr GKN could improve to a point where he could be accommodated in the community. He would most likely remain in a hospital setting.

46. Whilst Mr GKN’s future accommodation and service needs were not the immediate priority, it was clear to us that if his condition stabilised sufficiently for him to leave an ICU setting, decisions will need to be made in the months ahead regarding his ongoing living arrangements and associated care, particularly in light of his imminent release from custody. There is need for Mr GKN to continue to have a guardian appointed with authority to make decisions as to his accommodation and access to services.

47. Finally, at the request of Ms Hora of the Public Guardian, we have decided that a guardian requires the authority to enable the provision of legal services for Mr GKN. Ms Hora noted that it remained unclear about the circumstances which had occurred whilst Mr GKN was in custody which had led to his injuries. Ms Hora submitted that a guardian required the authority to enable Mr GKN to have access to legal services to investigate the circumstances of his injuries to determine if there was an entitlement for compensation and we accepted these submissions.

Who should be appointed as the guardian?

48. 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).

49. As there was no private person willing or available to be appointed as guardian for Mr GKN, we continued the appointment of the Public Guardian of NSW.

How long should the order last?

50. On review, a guardianship order can be renewed for a period of up to three years from the date on which it was made.

51. Mr GKN’s condition was unstable and precarious. His immediate future was unknown. We formed the view that a further reviewable order of three months would allow sufficient time to determine if Mr GKN’s condition stabilised to the point where a further analysis of his decision-making abilities would be appropriate.

**********

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

Amendments

29 March 2018 - At [13], client's name anonymised

Decision last updated: 29 March 2018