GXE

[2018] NSWCATGD 17

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

GXE [2018] NSWCATGD 17

Hearing dates:

12 February 2018

Date of orders:

12 February 2018

Decision date:

12 February 2018

Jurisdiction:

Guardianship Division

Before:

A Britton, Principal Member
Dr A M Berry, Senior Member (Professional)
P Davidson, General Member (Community)

Decision:

1. A guardianship order is made for Mrs GXE.

 

2. The Public Guardian is appointed as the guardian.

 

3. This is a continuing guardianship order for a period of two months from 12 February 2018.

 

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

 

FUNCTIONS:

 

5. The guardian has the following functions:

 

a) Accommodation

 

To decide where Mrs GXE may reside.

 

b) Health care

 

To decide what health care Mrs GXE may receive.

 

c) Services

 

To make decisions about services to be provided to Mrs GXE.

 

AND

 

1. The estate of Mrs GXE is subject to management under the NSW Trustee and Guardian Act 2009 (NSW).

 

2. The management of the estate of Mrs GXE is committed to the NSW Trustee and Guardian.

 3. This order be reviewed by the Tribunal within two months.

Catchwords:

GUARDIANSHIP – application for a guardianship order – application for a financial management order – mental health – relationship with Mental Health Act 2007 (NSW) – guardianship order made – reviewable financial management order made – considerations for length of order

 

EVIDENCE – expert evidence – assessment of medical evidence

  WORDS AND PHRASES – “social habilitation”

Legislation Cited:

Civil and Administrative Tribunal Act 2013 (NSW), cl 5 of Sch 6
Guardianship Act 1987 (NSW), ss 3(1), 3(2), 4, 14(1)–(2), 25, 25G, 25G(a)
Mental Health Act 2007 (NSW), ss 12, 15, 27(1)

Cases Cited:

P v NSW Trustee and Guardian [2015] NSWSC 579

Texts Cited:

Nil

Category:

Principal judgment

Parties:

001: Guardianship Application

 

Mrs GXE (the person)
South Eastern Sydney Local Health District (applicant)
NSW Public Guardian

 

002: Financial Management Application

  Mrs GXE (the person)
South Eastern Sydney Local Health District (applicant)
NSW Trustee and Guardian

Representation:

Nil

File Number(s):

NCAT 2018/00043802

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

1. On 6 February 2018, 84-year-old Mrs GXE was admitted to a public hospital. The following day she self-discharged against medical advice. She was re-admitted on the same day as an involuntary patient under the Mental Health Act 2007 (NSW), on the ground that she was a “mentally disordered person”.

2. On 9 February 2018, the South Eastern Sydney Local Health District (the Local Health District) made an urgent application to the Guardianship Division of the New South Wales Civil and Administrative Tribunal (NCAT) seeking guardianship and financial management orders in respect of Mrs GXE (the Application). A delegate of the Local Health District wrote that on admission, Mrs GXE was in a “neglected state” and members of the hospital’s treating team were of the opinion that she is “no longer capable of making reasonable decisions with regard to her health and welfare”. In the application for a financial management order, under the heading “Why are you asking for financial management order?”, the applicant wrote:

The effects of the Alzheimer’s dementia upon [Mrs GXE]’s cognitive function, in concert with underlying psychotic delusions, leave [Mrs GXE]’s capacity to safely manage her financial affairs in question.

3. Mrs GXE is divorced and has no children. Prior to her hospital admission she was living independently at home.

4. For the reasons that follow we have decided to make reviewable guardianship and financial management orders in respect of Mrs GXE, each for a period of two months.

Background to the Application

5. The Mental Health Act defines a “mentally disordered person” to mean:

15 Mentally disordered persons

A person (whether or not the person is suffering from mental illness) is a mentally disordered person if the person’s behaviour for the time being is so irrational as to justify a conclusion on reasonable grounds that temporary care, treatment or control of the person is necessary:

(a)    for the person’s own protection from serious physical harm, or

(b)    for the protection of others from serious physical harm.

6. Section 12 of that Act sets out the restrictions that apply to the involuntary admission of a mentally disordered person:

12 General restrictions on detention of persons

(1)    A patient or other person must not be involuntarily admitted to, or detained in or continue to be detained in, a mental health facility unless an authorised medical officer is of the opinion that:

(a)    the person is a mentally ill person or a mentally disordered person, and

(b)    no other care of a less restrictive kind, that is consistent with safe and effective care, is appropriate and reasonably available to the person.

(2)    If an authorised medical officer is not of that opinion about a patient or other person at a mental health facility, the officer must refuse to detain, and must not continue to detain, the person.

7. In a certificate issued under s 27(1)(a) of the Mental Health Act on 7 February 2018, medical practitioner Dr W, wrote of her observations:

[Mrs GXE observed as] Over inclusive, circumstantial and tangential, thought form delusional about people staying in her home and stealing her belongings…

Psychosis, at sig. risk of neglect of neglect and financial [illegible]. Needs involuntary detainment…

8. On 8 February 2018, psychiatrist Dr Z examined Mrs GXE and reached much the same conclusion. In a certificate issued under s 27(1)(b) of the Mental Health Act under the heading “Reported behaviour of the patient”, Dr Z wrote “responding to auditory and visual hallucinations”. She went on to write:

Observation

[Mrs GXE] presents as euthymic. She is talkative and forthcoming. She appears to have cognitive impairment with poor short term memory and prominent psychotic symptoms.

9. Dr Z concluded:

[Mrs GXE] appears vulnerable due to her cognitive impairment. She has psychotic symptoms which are untreated. Treatment in hospital is required. Risk is of neglect, misadventure.

10. In an undated report filed on 9 February 2018, social worker Mr Y urged NCAT to list the Application for an urgent hearing, writing that once “recategorised as a voluntary [patient]”, Mrs GXE is likely to leave the hospital and not attend the hearing to determine the Application.

11. Mr Y wrote that the trigger for the admission was a report made by Mrs GXE to a shopkeeper that her mother was dead. Apparently Mrs GXE’s mother has been dead for 23 years. Mr Y wrote that Mrs GXE told the paramedics who took her to hospital that she had been talking to her mother all afternoon. In addition, Mr Y wrote that the notes of her admission recorded Mrs GXE as saying that she was well, keen to return home, and concerned that her neighbours, who had the key to her apartment, might steal her possessions. He wrote that the hospital’s admission records note a similar type of presentation in December 2017. On that occasion, Mrs GXE was recorded to have said she heard footsteps and voices but self-discharged against medical advice.

12. According to Mr Y, Mrs GXE’s cousin, Mrs X, reported that:

1. The “hallucinations and associated delusions have been around since Christmas”.

2. Mrs GXE appeared to deteriorate somewhat rapidly after she reported three people were living with her.

13. Apparently Mrs X is Mrs GXE’s closest relative. She lives in regional NSW and speaks to Mrs GXE by phone every day.

14. In a report dated 9 February 2018, Dr Z noted:

1. Mrs GXE had undergone a thorough examination for “reversible causes of confusion/cognitive impairment” but none had been found.

2. Cognitive testing demonstrated poor short-term memory and “very impaired” frontal and executive functioning.

3. A CT of her brain shows significant atrophy.

4. Her thought form is distracted.

5. She reported there are people living in her home and believes they are making a TV show about her.

6. Her thought contents reveal confusion, and possible delusions associated with hallucinatory experiences which appear limited to her home. Mrs GXE has not heard or seen [the people she believes are living with her] while in hospital and now wonders whether they are still at home.

7. On admission, Mrs GXE was dressed in stained clothing and wearing two pairs of pants.

15. Dr Z concluded that Mrs GXE presents with “cognitive impairment, likely Alzheimer’s dementia with hallucinatory experiences”. She wrote that this has led to poor nutritional intake, disrupted sleep, and wandering behaviours. She recommended the appointment of a substitute decision- maker for Mrs GXE.

16. Mrs GXE, Dr W, Mr Y and psychologist Dr V, attended the hearing. Dr W stated that when Mrs GXE reported to the department of the hospital, she was most distressed and mentally disordered, however six days after admission, the hallucinations and delusional thoughts appear to have subsided. In her opinion those symptoms were probably secondary to dementia. In addition, she expressed the view that even with treatment, Mrs GXE’s decision-making capacity is likely to be impaired.

17. Mrs GXE was referred to Dr V for a neuropsychological assessment. At the hearing, Dr V stated that she had just completed a report following a preliminary assessment of Mrs GXE. The report was not filed in these proceedings. She stated that testing revealed that Mrs GXE’s memory and language remained intact, which in her opinion argues against a diagnosis of Alzheimer’s dementia. She wrote that critical to the assessment of whether Mrs GXE’s decision-making capacity is impaired is the question of whether her self-report of functional capacity reflects her actual functional capacity. She explained that to answer that question requires an assessment to be undertaken by an occupational therapist. Apparently, there had been some difficulty arranging for a functional assessment to be undertaken because of resourcing issues within the hospital.

18. Dr V stated that on the available material she was not positively satisfied that Mrs GXE’s decision-making capacity is, or is not, significantly impaired.

19. At the hearing, Mrs GXE presented as well dressed and thought coherent. She told the Tribunal that she lived alone and managed all domestic tasks without difficulty. She stated that she would follow the recommendations made by the medical practitioners. She agreed with Dr V that an important consideration in her diagnosis is whether there is a disparity between her self-report of being high-functioning and reality. She stated that she had “no difficulty” with anyone visiting her at home to undertake that assessment or attending the hospital each day.

Application for a guardianship order

Can a guardianship order be made?

20. The power to make a guardianship order can only be made if we are satisfied that Mrs GXE is a “person in need of a guardian”: s 14(1) of the Guardianship Act 1987 (NSW) (the Act). 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) of the Act. A person with a disability is defined to include a person who is physically and/or psychologically disabled, and/or of advanced age, 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) of the Act.

21. The term “social habilitation” is not defined by 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.

22. The evidence reveals that when admitted to hospital in early February 2018, Mrs GXE presented with acute psychotic symptoms. At that point in time she was undoubtedly incapable of managing her person. Apparently those symptoms have now resolved. While it is clear that at the point of admission she met the statutory test of a “person in need of guardian”, the more difficult question is whether she now satisfies the statutory test.

23. The weight of medical opinion is that Mrs GXE probably also suffers from Alzheimer’s dementia and that this was a contributing factor to the acute symptoms displayed on admission in February this year and her presentation to hospital in December 2017. However, until such time as a comprehensive neuropsychological assessment is undertaken, a significant doubt hangs over the reliability of that diagnosis.

24. The real issue is not whether Mrs GXE suffers from Alzheimer’s dementia but whether she has a disability, however described, which impairs her decision-making capacity to such an extent that she is at least partially unable to manage her affairs, and as a result, requires social habilitation or supervision. This raises the following issues to be addressed: the likelihood that the acute psychotic symptoms will remerge; whether their underlying cause can be treated, and; whether Mrs GXE’s self-report of being high-functioning is reliable.

25. On the available evidence, it is not possible to reach a concluded view about these issues. Were it not for the series of hospital admissions within a relatively short period, where Mrs GXE presented with acute psychotic symptoms and, at that time, was plainly unable to manage her person, we would be inclined to the view that the available evidence does not support a finding that Mrs GXE is a person in need of guardian. However, that history, taken together with the opinion of Dr W and Dr Z that even those symptoms there is compelling evidence of significant cognitive impairment, leads us to find on the balance of probabilities that at this time and for the foreseeable future, Mrs GXE is a person in need of a guardian. A different view might be reached if a better understanding is reached of the cause of Mrs GXE’s condition.

Reliability of history taken and need for neurological assessment

26. As set out below, we have decided to make a reviewable short-term guardianship order. At the hearing it became apparent that the history taken by Mr Y conflated the circumstances surrounding Mrs GXE’s recent hospital admissions. On the available material, it is not possible to say whether those health practitioners who have been asked to assess Mrs GXE also provided their opinions on the basis of an inaccurate history. It is critical that this matter be corrected before the guardianship order comes before the Tribunal for review.

27. We note that the Local Health District undertook to provide the Tribunal with a report of a neuropsychological assessment prior to the next review hearing. We note the opinion of Dr V that without an assessment to determine whether there is a disparity between Mrs GXE’s self-report of being high-functioning and reality, any neuropsychological assessment will be of limited utility. We request that a report of neuropsychological assessment be made available to the Tribunal in ample time for the review hearing.

Should a guardianship order be made?

28. In considering whether or not to make a guardianship order, s 14(2) of the Act instructs that we shall have regard to:

(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.

29. In addition, in exercising the power to make a guardianship order, we are obliged to observe the statement of general principles listed in s 4 of the Act:

4 General principles

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.

See also Cl 5 of Sch 6 to the Civil and Administrative Tribunal Act 2013 (NSW)

The views of Mrs GXE

30. While Mrs GXE did not expressly state that she opposed the making of a guardianship order, the effect of her evidence was that a guardianship order was unnecessary and she was capable of making all necessary decisions in relation to the management of her person.

The views of Mrs GXE’s former-husband

31. The available evidence indicates that Mrs GXE’s relationship with her former husband is not close and continuing. Therefore it is not necessary to take his view into account, if indeed he holds one about whether a guardianship order should be made. It is unknown whether he is aware of Mrs GXE’s current circumstances.

The importance of preserving Mrs GXE’s existing family relationships

32. On the available material it is not possible to determine whether the making of a guardianship order would affect Mrs GXE’s existing family relationships. Indeed apart from Mrs X, there is no information about Mrs GXE’s existing family relationships.

Importance of preserving the person’s particular cultural and linguistic environments

33. This factor does not appear to be relevant in this case.

Practicability of services being provided to the person without the need for the making of such an order

34. This factor favours the making of a guardianship order in so far as the history of Mrs GXE’s presentations to hospital suggests that to remain living independently, it is likely that she will require additional services, including regular medical review. Her apparent failure to take steps to arrange such services to date suggests she lacks insight into her condition or lacks the capacity to arrange for services to be provided.

Findings and conclusions

35. In deciding whether to make, or not to make, a guardianship order, we must take into account the factors listed in s 14(2) of the Act. These factors, together with the statement of principles contained in s 4 of the Act, require us to balance a number of competing considerations. On the one hand, we must observe the principle that Mrs GXE must be protected from neglect, abuse, and exploitation. On the other hand, we must restrict her freedom of decision making and action as little as possible and encourage her, as far as possible, to live a normal life in the community. At all times, the paramount consideration is Mrs GXE’s welfare and interests.

36. We have noted above our concerns about the paucity of evidence on which to base a decision to make a guardianship order. While this is not the most clear cut case, we have decided that the balance of factors favour the exercise of the discretion to make a guardianship order.

35. Given our concern about the limited evidence available to make a finding about whether Mrs GXE’s presentation to hospital is representative of her ongoing functional capacity, we have decided to make a continuing guardianship order for a short period, namely two months.

Who should be appointed as Mrs GXE’s guardian?

38. On the available material there does not appear to be any person who is willing and able to exercise the functions conferred under the guardianship order. It follows that the Public Guardian must be appointed.

What functions should the guardian(s) be given?

39. In the foreseeable future, it is possible, if not probable, that decisions in relation to accommodation, services and health care will need to be made on behalf of Mrs GXE. For that reason, we have decided to confer these functions on the Public Guardian.

Application for a Financial Management order

Can a financial management order be made?

40. Section 25G of the Act provides that the Tribunal may make a financial management order in respect of Mrs GXE only if we have considered her capability to manage her own affairs and are satisfied, to the relevant civil standard, of three matters:

1. That Mrs GXE is not capable of managing her affairs.

2. That there is a need for a person to manage those affairs on behalf of Mrs GXE.

3. That it is in Mrs GXE’s best interests that the order be made.

Is Mrs GXE not capable of managing her affairs?

41. In P v NSW Trustee and Guardian [2015] NSWSC 579, Lindsay J commented at [308] and [309] on the meaning of the phrase “capable of managing those [the subject person’s] affairs” in s 25G(a) of the Act:

[A] focus for attention is whether the person is able to deal with (making and implementing decisions about) his or her own affairs (person and property, capital and income) in a reasonable, rational and orderly way, with due regard to his or her present and prospective wants and needs, and those of family and friends, without undue risk of neglect, abuse or exploitation.

In considering whether the person is “able” in this sense, attention may be given to: (a) past and present experience as a predictor of the future course of events; (b) support systems available to the person; and (c) the extent to which the person, placed as he or she is, can be relied upon to make sound judgements about his or her welfare and interests: CJ v AKJ [2015] NSWSC 498 at [38].

42. As a first step in determining whether Mrs GXE is capable of managing her affairs, it is necessary to identify the nature of her “affairs”. According to Mrs GXE, she owns her own home and a shop and both properties are mortgage free. It appears that she earns rental income from the shop. It is unclear whether she has any other source of income.

43. Mrs GXE’s claim that she has competently managed her affairs to date is unsupported but not contradicted. However, a record of her admission (made in either December 2017 or February 2018, it is unclear from the available material) states that Mrs GXE presented to hospital carrying $3000 in cash, which she stated was to pay for a bill of $300.

44. Dr W and Dr Z are of the opinion that Mrs GXE is probably not capable of managing her affairs, even after her psychotic symptoms have fully settled.

45. While some doubt is raised given the absence of a neurological assessment, on the available evidence, we are satisfied that Mrs GXE probably is and will be for the foreseeable future, unable to manage her affairs in a reasonable, rational, and orderly way.

Is there a need for a person to manage her affairs on behalf of Mrs GXE and is it in Mrs GXE’s best interests that a financial management order be made?

46. These two issues are intertwined. For broadly the same reasons we gave for making the guardianship order, we are of the view that there is a need for a person to manage Mrs GXE’s affairs. In reaching this conclusion we note that Mrs GXE’s affairs appear to some complexity, and are likely to require, among other things, auditing of rental income and oversight of lease arrangements.

47. In circumstances where Mrs GXE is unable to manage her affairs and there is a need for a person to manage her affairs, the protection of her estate requires a financial management order to be made.

48. For these reasons we are satisfied that it is in her best interests that a financial management order be made.

Should a financial management order be made?

49. As the pre-conditions to making a financial management order are satisfied, the power to make a financial management order can be exercised. In exercising that power we are obliged to have regard to the statement of principles contained in s 4 of the Act. As noted above, this requires a number of competing considerations to be balanced.

50. It will be a rare case where the pre-conditions to making a financial management order are satisfied, and nonetheless, factors weigh against the exercise of the discretion to make such order. This is not such a case. We have decided that the power to make a financial management order should be exercised.

Who should be appointed to manage Mrs GXE’s estate?

51. There being no evidence of a suitable person who is able and willing to take on the role of manager of Mrs GXE’s estate, we have no option but to commit the management of her estate to the NSW Trustee and Guardian.

Should the financial management order be reviewable?

52. For the reasons given for making a reviewable short-term guardian order, in our view it is appropriate that the financial management order be reviewable and be for a term of two months.

**********

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: 21 December 2018