Grace (a pseudonym) - [2023] NSWCATGD 25

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
Grace (the person)
Susan (applicant)
007: Consent to Special Medical Treatment
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Grace (a pseudonym)

Details

AGLC: Grace (a pseudonym) [2023] NSWCATGD 25
Case: [2023] NSWCATGD 25
Decision Date: 08 February 2023

CaseChat Overview and Summary

In this matter, the subject person, referred to as Grace, a 56-year-old woman residing in supported independent living accommodation, was under review of a guardianship order. Grace suffers from Bipolar Affective Disorder and multiple sclerosis, conditions that have resulted in a variable mental health status and, consequently, variability in her capacity to make decisions. The Public Guardian was appointed to serve as her guardian under the Guardianship Act 1987 (NSW). Additionally, there was a proposed treatment involving the use of medicinal cannabis, which raised the question of whether it constituted special medical treatment under the Act. This required the court to determine whether the proposed treatment was experimental and if consent was necessary. The court was tasked with making a decision on the continuation of the guardianship order, the appointment of a guardian, and the necessity of consent for the proposed medicinal cannabis treatment.

The court examined the nature of the guardianship order and whether Grace remained a person for whom such an order could be made. It considered her fluctuating mental health and the need for a substitute decision-maker to ensure her well-being. The court also assessed the classification of the proposed medicinal cannabis treatment as special medical treatment under the Guardianship Act. Given the substantial support for the proposed treatment within the medical community for pain relief, the court concluded that the treatment did not qualify as special medical treatment. Consequently, the court determined that consent was not required and dismissed the application for special medical treatment.

Following the review, the court determined that the guardianship order for Grace should continue. The Public Guardian was appointed as Grace's guardian, with a continuing guardianship order effective for a period of 12 months from 8 February 2023. The guardianship order was limited, granting the guardian specific functions, including decisions about accommodation, health care, medical and dental consent, and services. The court imposed a condition requiring the guardian to take reasonable steps to ensure Grace understood the issues and considered her views before making significant decisions.

The court dismissed the application for special medical treatment and confirmed the continuation of the guardianship order with the specified functions and conditions.

Orders

Orders of the court

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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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 Grace (the person) Susan (applicant) 007: Consent to Special Medical Treatment 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…