Grace (a pseudonym)
[2023] NSWCATGD 25
•08 February 2023
NSW Civil and Administrative Tribunal
New South Wales
Medium Neutral Citation: Grace (a pseudonym) [2023] NSWCATGD 25 Hearing dates: 08 February 2023 Date of orders: 08 February 2023 Decision date: 08 February 2023 Jurisdiction: Guardianship Division Before: R H Booby, Senior Member (Legal)
Dr B McPhee, Senior Member (Professional)
S Johnston, General Member (Community)Decision: The application for special medical treatment is dismissed after hearing.
The guardianship order for Grace made on 16 February 2022 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 12 months from 8 February 2023.
3. This is a limited guardianship order giving the guardian(s) custody of Grace to the extent necessary to carry out the functions below.
FUNCTIONS:
4. The guardian has the following functions:
a) Accommodation
To decide where Grace may reside.
b) Health care
To decide what health care Grace may receive.
c) Medical/Dental consent
To make substitute decisions about proposed minor or major medical or dental treatment, where Grace is not capable of giving a valid consent.
d) Services
To make decisions about services to be provided to Grace.
CONDITION:
5. The condition of this order is:
d) Standard conditions
In exercising this role, the guardian shall take all reasonable steps to bring Grace to an understanding of the issues and to obtain and consider her views before making significant decisions.
Catchwords: GUARDIANSHIP – subject person is 56-years-old and lives in supported independent living accommodation – review of guardianship order – subject person has Bipolar Affective Disorder and multiple sclerosis – subject person is a person for whom the Tribunal could make another guardianship order – variable mental health status resulting in variability in capacity to make decisions – need to appoint a substitute decision-maker – Public Guardian appointed – order made.
SPECIAL MEDICAL CONSENT – proposed treatment is a trial for medicinal cannabis – whether cannabis-based medication is special medical treatment under the Guardianship Act 1987 (NSW) – whether the proposed treatment is characterised as experimental treatment – the proposed treatment has the support of a substantial number of practitioners in pain relief – proposed treatment is not special medical treatment for the purposes of the Act – consent not required – application dismissed.
Legislation Cited: Guardianship Act 1987 (NSW), ss 3(1)-(2), 4, 14, 14(2), 33(1), 33(1)(b)
Guardianship Regulation 2016 (NSW), regs 9, 14
Cases Cited: P v NSW Trustee and Guardian [2015] NSWSC 579
IF v IG [2004] NSWADTAP 3
EFC [2020] NSWCATGD 27
Texts Cited: Oxford Languages English Dictionary, online ed
Category: Principal judgment Parties: 005: Review of Guardianship Order
Grace (the person)
Public Guardian (appointed guardian)006: Consent to Special Medical Treatment
007: Consent to Special Medical Treatment
Grace (the person)
Susan (applicant)
Grace (the person)
Murphy (applicant)Representation: Nil.
File Number(s): NCAT 2020/00201785 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: Civil and Administrative Tribunal Act 2013 (NSW), s 65.
REASONS FOR DECISION
Background
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Grace is 56-years-old and lives in NSW in a supported independent living home where she is supported by staff from Connectability.
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On 18 August 2020, the Tribunal made a guardianship order appointing the Public Guardian for 12 months to make decisions for Grace about her accommodation, services, health care and medical/dental treatment.
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On 16 December 2020, the Tribunal made a financial management order and committed Grace’s affairs to management by the NSW Trustee and Guardian.
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On 22 February 2022, the Tribunal reviewed the guardianship order and reappointed the Public Guardian for 12 months to make decisions for Grace about her accommodation, services, health care and medical/dental treatment.
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The hearing on 8 February 2023 was the end-of-term review of the guardianship order made on 22 February 2022.
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On 18 January 2023, the Tribunal received two applications seeking consent for special medical treatment for Grace. The treatment for which consent was sought was for a trial of THC10:CBD10 (medicinal cannabis) for pain relief. The applicants for the consent to the special medical treatment were Dr Murphy, Treating Physician, and Susan, the team leader at Grace’s supported accommodation.
The hearing
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At the end of these Reasons for Decision is a list of witnesses who participated in the hearing. [Appendix removed for publishing.]
Statutory review of guardianship order
What did the Tribunal have to decide?
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On reviewing the current guardianship order, the Tribunal may renew the order, renew and vary the order, or determine that the order is to lapse.
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The questions to be considered by the Tribunal are:
Is Grace someone for whom the Tribunal could make an order because she continues to have a disability which prevents her 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?
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Section 4 of the Guardianship Act 1987 (NSW) provides that it is the duty of everyone exercising functions under this Act with respect to persons who have disabilities to observe the following principles:
(a) the welfare and interests of such persons should be given paramount consideration,
(b) the freedom of decision and freedom of action of such persons should be restricted as little as possible,
(c) such persons should be encouraged, as far as possible, to live a normal life in the community,
(d) the views of such persons in relation to the exercise of those functions should be taken into consideration,
(e) the importance of preserving the family relationships and the cultural and linguistic environments of such persons should be recognised,
(f) such persons should be encouraged, as far as possible, to be self-reliant in matters relating to their personal, domestic and financial affairs,
(g) such persons should be protected from neglect, abuse and exploitation,
(h) the community should be encouraged to apply and promote these principles.
Is Grace someone for whom the Tribunal could make a further order because she continues to have a disability which prevents her from being able to make important life decisions?
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Section 14 of the Guardianship 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”: Guardianship Act, s 3(1). 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: Guardianship Act, s 3(2).
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The term “social habilitation” is not defined in the Act. In P v NSW Trustee and Guardian [2015] NSWSC 579, Lindsay J considered its meaning in the context of s 3(2) of the Act, at [303]
“The expression ‘social habilitation’ (in the context of references to ‘disability’, ‘restricted’, ‘major life activities’ and the word ‘requires’) may be taken to refer to a need for services to help a person to be, or become, able to function normally in community with others.”
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The Tribunal has previously been satisfied that Grace has a mental illness being Bipolar Affective Disorder and multiple sclerosis that has impacted on her mental health.
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In a letter dated 9 November 2022 to another practitioner, Dr Murphy, a Specialist Pain Medicine Fellow, notes that Grace advised that her Bipolar Affective Disorder was relatively well controlled, but that, at the time of their consultation, she was in a “depressive stage”. On psychometric testing, Grace’s scores suggested extremely severe anxiety and extremely severe stress.
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During the hearing, Grace said that she considers that her mental health condition impairs her ability to make lifestyle decisions.
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Taking into account the previous decision of the Tribunal, as well as the view of Dr Murphy and Grace’s own view, we were satisfied that Grace continues to have a mental health condition that prevents her, at least partially, from managing her person and that impedes her ability to access, evaluate and utilise information to manage her person and lifestyle in the community. She is therefore a person for whom the Tribunal could make another guardianship order.
Should the Tribunal make a further guardianship order and if so, what order should be made?
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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:
(a) the views (if any) of:
(i) the person, and
(ii) the person’s spouse, if any, if the relationship between the person and the spouse is close and continuing, and
(iii) the person, if any, who has care of the person,
(b) the importance of preserving the person’s existing family relationships,
(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.
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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 is guided by the principles that are set out in s 4 of the Guardianship Act (see IF v IG [2004] NSWADTAP 3).
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Michelle, of the office of the Public Guardian, provided a report to which she spoke during the hearing. Her information and views were to the following effect:
Grace’s accommodation was funded under a Specialist Disability Accommodation (SDA) model. She lives with four other women and receives assistance with personal care.
Grace has indicated that she would like to live alone in her own accommodation with support, and alternative accommodation options were being explored. The Public Guardian is of the view that there is an ongoing need for a guardian to make accommodation decisions for Grace.
Grace is provided with NDIS funding for support services and the Public Guardian had made eight services decisions for Grace during the period of the order. As Grace can become overwhelmed when confronted with the need to make decisions, the Public Guardian is of the view that the services decision-making function should continue.
Grace’s GP was of the view that Grace could consent to her medications, including major medications, and the Public Guardian was of the view that the medical/dental decision-making function could be lapsed.
Assessment of the appropriateness of accommodation options for Grace requires access to her health care information and the Public Guardian is of the view that the health care decision making function should continue.
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Grace’s capacity to provide consent to her own medical/dental treatment was further discussed during the hearing:
Dr Murphy said that, in November 2022, he was of the view that Grace could consent to her own medical treatment. However, he is of the view that her capacity varies and he was not able to assess whether she is currently able to give her own consent to medical treatment.
We asked Grace about the application before the Tribunal seeking her consent to the prescription of cannabidiol for pain relief. Grace said that Dr Murphy had not discussed possible side effects with her. She was of the view that “at the moment” she was able to provide her own consent to medication.
Susan described Grace as being currently depressed and said that Dr Murphy had discussed side effects with Grace and had provided her with a brochure. Grace responded that she had read the brochure, but said that Dr Murphy had not advised her how likely the side effects were. Susan also said that she believes that Grace can become confused and there is a risk that she would agree to medication without understanding its nature and effect.
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Grace receives numerous medications. The medications are to treat a number of conditions including pain, insomnia, bipolar disorder in addition to asthma, reflux and a skin condition. The medications include anti-psychotic medications. As noted, the Tribunal had been provided with an application seeking consent to prescribing cannabidiol for Grace.
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We were of the view that considering Grace’s variable mental health status, including her current low mood, it is likely that there is some variability in her ability to inquire into and to understand the nature and effect of the range of medications. Accordingly, we were satisfied that there is an ongoing need for a substitute decision maker to be available for times that she is not able to provide her own consent. As there was no evidence of an available ‘person responsible’ to provide any necessary consent to medical treatment, we were satisfied that we should appoint a guardian for that function.
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Grace was agreeable to the appointment of a guardian and we accepted the views and evidence of the Public Guardian and Susan as people who were familiar with Grace’s needs. Based on their evidence, we were satisfied that there are decisions required for Grace about her accommodation and services, and that Grace is not able to make those decisions herself. Those decisions will require advocacy, liaison and negotiation with the National Disability Insurance Agency (NDIA), and with service providers, and we are satisfied that they cannot be made and implemented informally. Accordingly, we were satisfied that there is a need to appoint a substitute decision maker regarding these matters.
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We are of the view that a guardian considering Grace’s accommodation, services, and medical/dental treatment needs to be able to access and, where necessary, transmit important health care information, and accordingly should be provided with a health care function.
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Whilst the principles set out in s 4 of the Guardianship Act are to the effect that Grace’s freedom of decision and freedom of action should be limited as little as possible, we are required to prioritise her best interests and welfare. We note that Grace supports the making of a guardianship order and we are satisfied that it is necessary to appoint a guardian to make important decisions about her lifestyle for the protection of her welfare, and that to do so is in her best interests.
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There was no evidence that the previous order has adversely affected Grace’s family relationships or any cultural and linguistic environment, or that renewing the order would be likely to do so.
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Having considered the evidence and reached the conclusions noted above, we made the guardianship order encompassing the functions as set out in the Tribunal’s decision.
Who should be appointed as the guardian?
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There was no private person available to be appointed as guardian, and we appointed the Public Guardian.
How long should the order last?
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On review, a guardianship order can be renewed for a period of up to three years from the date on which it was made. We made the order for 12 months only, as we were of the view that it was in the best interests of Grace to reconsider her ability to consent to her own medication within that period.
Special medical consent
What is the proposed treatment?
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The treatment for which consent was sought was for a trial of THC10:CBD10 (medicinal cannabis) 1ml, twice a day, for pain relief.
Is the proposed treatment “special medical treatment”
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Special medical treatment is defined in the Guardianship Act and in the Guardianship Regulation 2016 (NSW) (the Regulations).
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Section 33(1) of the Guardianship Act includes the following:
33 Definitions
(1)
…
special treatment means –
(a) any treatment that is intended, or is reasonably likely, to have the effect of rendering permanently infertile the person on whom it is carried out, or
(b) any new treatment that has not yet gained the support of a substantial number of medical practitioners or dentists specialising in the area of practice concerned, or
(c) any other kind of treatment declared by the regulations to be special treatment for the purposes of this Part,
but does not include treatment in the course of a clinical trial.
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Regulations 9 and 14 of the Regulations include the following:
9 Special Medical Treatment
For the purposes of paragraph (c) of the definition of special treatment in section 33 (1) of the Act, the following medical treatment is declared to be special treatment:
(a) any treatment that is carried out for the purpose of terminating pregnancy,
(b) any treatment in the nature of a vasectomy or tubal occlusion,
(c) any treatment that involves the use of an aversive stimulus, whether mechanical, chemical, physical or otherwise.
…
14 Experimental special medical treatment to which Tribunal may consent
For the purposes of section 45 (3) (b) of the Act, the following medical treatment is prescribed special treatment:
(a) any treatment that involves the administration to a patient of 1 or more restricted substances for the purpose of affecting the central nervous system of the patient, but only if the dosage levels, combinations or numbers of restricted substances used, or the duration of the treatment, are outside the accepted mode of treatment for such a patient,
(b) any treatment that involves the use of androgen reducing medication for the purpose of behavioural control.
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The Tribunal has previously considered whether a cannabis-based medication was special medical treatment. In the matter of EFC [2020] NSWCATGD 27, the Tribunal considered an application for consent to the administration of Spectrum Blue Cannabis Oil (THC 10mg/ml, CBD 15mg/ml) at a maximum dose of 2mls three times per day for the treatment of severe Alzheimer’s dementia. The Tribunal said the following:
“[15] As to the question of characterising the special treatment, we were alive to the possibility that the proposed treatment might fall into one of two categories of special treatment described in the legislation, either as:
(1) a special treatment of the kind described in paragraph (b) of the meaning of special treatment given in s 33(1) of the Act (‘new treatment’); or
(2) a kind of ‘experimental’ special treatment of the kind considered in reg 14(a) of the Regulations, and therefore special treatment for the purposes of paragraph (c) of the definition in s 33(1) of the Act (‘experimental treatment’).”
[16] We were able to exclude the possibility of other categories because they were self-evidently irrelevant to the treatment proposed.”
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In the EFC matter, the Tribunal sought submissions from the applicant, Dr Z and from Dr Y, the doctor who was treating the patient in hospital.
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The Tribunal continued:
“[18] Dr Z’s submissions were simply, in effect, that the treatment proposed was best defined under the first definition (‘new treatment’). He submitted that, in Australia (relative to other jurisdictions), there was only a small number of practitioners prescribing and supporting the prescription of cannabis medicines. He said the second definition (‘experimental treatment’) was, on the other hand, not fitting, because the proposed medicine and dosage was not outside the accepted mode of treatment for that medicine in other jurisdictions - in fact, it was, in his opinion, consistent with a standard dose in jurisdictions with more widespread use of the product.”
[19] Dr Y agreed with that assessment, noting that there was little evidence for its general use, but she was aware of it being prescribed on a case-by- case basis.
…
[22] The treatment proposed is the administration of a medicine that is not registered on the TGA Registry and is not otherwise considered a medicine with an established history of use in NSW. It has not yet gained the support of a substantial number of practitioners specialising in the area of practice concerned - namely, treatment of dementia and associated symptoms. We accepted Dr Z’s evidence, which was not contradicted, and found it is more appropriately categorised as ‘new treatment’, as defined under paragraph (b) of the meaning given to ‘special treatment’ in s 33(1) of the Act.”
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Dr Murphy expressed a similar view to Dr Z regarding whether the medication should be considered ‘experimental’ in accordance with the description of that category of medication set out in reg 14 of the Regulations. Dr Murphy said that the proposed dosage and proposed 12-week trial of the medication is within prescribing standards for this medication.
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We accepted the evidence of Dr Murphy which was consistent with the evidence of the medical practitioners as reported on the matter of EFC. We note that the strength of the cannabidiol and the dosage proposed in the current matter are less than those considered in the EFC matter.
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We were satisfied that the medication should not be characterised as experimental treatment in which the dosage levels, combinations or numbers of restricted substances used, or the duration of the treatment, are outside the accepted mode of treatment for a patient needing pain control.
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We then proceeded to consider whether the treatment is a ‘new treatment that has not yet gained the support of a substantial number of medical practitioners or dentists specialising in the area of practice concerned’: Guardianship Act, s 33(1)(b). As noted above, in the EFC matter, Dr Y submitted that there was only a small number of practitioners prescribing and supporting the prescription of cannabis medicines and the Tribunal was satisfied that the medication ‘had not yet gained the support of a substantial number of practitioners specialising in the area of practice concerned - namely, treatment of dementia and associated symptoms’.
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Dr Murphy is a Specialist Pain Medicine Physician. He said that, where he practices, two of the three specialist practitioners prescribe the medication for pain relief. He was of the view that this proportion was likely to be indicative of the general view of pain specialists. He added that the medication was also being increasingly used in psychiatry.
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We accepted the evidence of Dr Murphy and we were satisfied on his evidence that the use of the THC10:CBD10 at the dosage and duration as indicated, is supported by two thirds of practitioners at his clinic. We could see no reason to consider that the clinic was not representative of pain clinics elsewhere, and no reason to doubt that the view there is indicative of the view generally of pain specialists.
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There is no legislative definition of “substantial”. The online Oxford Languages ( defines substantial as “of considerable importance, size, or worth”. It was our view that support from two thirds of practitioners practising in pain relief was of considerable importance and size, and was substantial.
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We note that the purpose for which the medication was prescribed in EFC was different from that in the current matter, and that the EFC matter was considered some two years ago, in the context of an evolving medical environment. We were satisfied that these factors distinguish the facts in the current matter from those considered in the EFC matter.
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Having reached the view that it is likely that the use of the medication for pain relief has the support of a substantial number of practitioners in pain relief, we are satisfied that it is not special medical treatment as defined in s 33(1)(b) of the Guardianship Act. Being satisfied that the proposed treatment does not fall under any of the other characterisations of special medical treatment, we were satisfied that the treatment is not special medical treatment.
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We dismissed the application as we were satisfied that there was no need for the Tribunal to consent to the treatment. Consent can be provided by Grace if she is considered able to consent, or by the Public Guardian appointed to consider medical treatment when Grace is not able to do so.
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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 2025
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