HAE - [2018] NSWCATGD 10

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: HAE [2018] NSWCATGD 10
Hearing dates: 23 May 2018
Date of orders: 30 May 2018
Decision date: 30 May 2018
Jurisdiction: Guardianship Division
Before: C P Fougere, Principal Member
Dr A M Berry, Senior Member (Professional)
Emeritus Professor P J Foreman, General Member (Community)
Decision:
003: Guardianship Application

1. A guardianship order is made for Ms HAE.

2. Mr DYE is appointed as the guardian.

3. Mrs DYE is appointed as the alternative guardian.

4. This is a continuing guardianship order for a period of three years from 30 May 2018.

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

FUNCTIONS: Mr DYE

6. Mr DYE has the following function:

a) Health care

To decide what health care Ms HAE may receive.

CONDITION:

7. The condition of this order is:

a) Standard Condition

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

005: Financial Management Application
The hearing of the application for a financial management order is adjourned to a date to be fixed by the Registrar.
Catchwords: GUARDIANSHIP – application for guardianship order – woman with profound intellectual and physical disabilities – resident of FACS group home – palliative care plan – Withdrawal of Active Resuscitation order – previous orders signed by father as person responsible in consultation with medical practitioners – where CPR would be burdensome, intrusive and cause serious injury – new FACS policy on resuscitation plans – cardiopulmonary resuscitation mandated under policy unless guardian appointed to approve not for resuscitation order – consideration of common law principles concerning withholding of treatment – consideration of NSW Ministry of Health Directive on Using Resuscitation Plans in End of Life Decisions
Legislation Cited: Civil and Administrative Tribunal Act 2013 s 36(1)
Guardianship Act 1987 (NSW) ss 3F(2)(d), 3D, 3(1), 3(2), 4, 14(2), 14(2)(d), 17(1), 18(1), 18(1)(a), 18(1B), Part 5
Cases Cited: Application of Justice Health; Re a Patient [2011] NSWSC 432
C S and M Y v the Guardianship Tribunal and the Public Guardian (Supreme Court (NSW), Windeyer J, 29 November 1999, unrep)
FI v Public Guardian [2008] NSWADT 263
FI v New South Wales Trustee and Guardian (No. 2) [2010] NSWADT 43
Hunter Area Health Service v Marchlewski (2000) 51 NSWLR 264
Messiha v South East Health [2004] NSWSC 1061
National Health Service; Auckland Area Health Board v Attorney General [1993] 1 NZLR 235
Northbridge v Central Sydney Area Health Service [2000] NSWSC 1241; (2000) 50 NSWLR 549
Re B [2011] NSWSC 1075
Re G [1997] 2 NZLR 201
Texts Cited:
Family and Community Services ADHC, End of Life Care Planning Guidelines (Version 1.0, Family and Community Services ADHC, January 2016)

Family and Community Services ADHC, Decision Making and Consent Guidelines (Version 1.0, Family and Community Services ADHC,…

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 HAE

Details

AGLC: HAE [2018] NSWCATGD 10
Case: [2018] NSWCATGD 10
Decision Date: 30 May 2018

CaseChat Overview and Summary

The application for a guardianship order was brought by the Department of Family and Community Services (FACS) on behalf of Ms HAE, a woman with profound intellectual and physical disabilities who resides in a FACS group home. The dispute centred on whether a guardianship order should be made to allow for the withdrawal of active resuscitation, given that Ms HAE was on a palliative care plan and a Withdrawal of Active Resuscitation order had already been signed by her father, who was the person responsible at the time, in consultation with medical practitioners. The court was required to decide whether cardiopulmonary resuscitation (CPR) should be mandated under the new FACS policy on resuscitation plans or if a guardian should be appointed to approve a not-for-resuscitation order. This decision needed to be made in light of common law principles concerning the withholding of treatment and the NSW Ministry of Health Directive on Using Resuscitation Plans in End of Life Decisions.

The court considered the principle that a person with decision-making capacity has the right to refuse treatment, even if it results in death, and that this principle extends to those who lack capacity. It was noted that Ms HAE had previously expressed her wish not to receive CPR, and the burden, intrusiveness, and potential for serious injury from CPR were significant factors. The court also considered the new FACS policy and the Ministry of Health Directive, which emphasised the importance of respecting an individual's autonomy and wishes regarding end-of-life care. In light of these considerations, the court found that it was in Ms HAE's best interests for a guardianship order to be made to allow the guardian to approve a not-for-resuscitation order.

The court made a guardianship order for Ms HAE, appointing Mr DYE as the guardian and Mrs DYE as the alternative guardian. This order was a continuing guardianship order for a period of three years from 30 May 2018, and it was a limited guardianship order that gave the guardian(s) custody of Ms HAE to the extent necessary to carry out specific functions. Mr DYE was given the function of making health care decisions for Ms HAE, with the condition that he must take all reasonable steps to bring her to an understanding of the issues and to obtain and consider her views before making significant decisions. The hearing of the application for a financial management order was adjourned to a date to be fixed by the Registrar.

Orders

Orders of the court

003: Guardianship Application

1. A guardianship order is made for Ms HAE.

2. Mr DYE is appointed as the guardian.

3. Mrs DYE is appointed as the alternative guardian.

4. This is a continuing guardianship order for a period of three years from 30 May 2018.

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

FUNCTIONS: Mr DYE

6. Mr DYE has the following function:

a) Health care

To decide what health care Ms HAE may receive.

CONDITION:

7. The condition of this order is:

a) Standard Condition

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

005: Financial Management Application

The hearing of the application for a financial management order is adjourned to a date to be fixed by the Registrar.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	HAE [2018] NSWCATGD 10
Hearing dates:	23 May 2018
Date of orders:	30 May 2018
Decision date:	30 May 2018
Jurisdiction:	Guardianship Division
Before:	C P Fougere, Principal Member Dr A M Berry, Senior Member (Professional) Emeritus Professor P J Foreman, General Member (Community)
Decision:	003: Guardianship Application 1. A guardianship order is made for Ms HAE. 2. Mr DYE is appointed as the guardian. 3. Mrs DYE is appointed as the alternative guardian. 4. This is a continuing guardianship order for a period of three years from 30 May 2018. 5. This is a limited guardianship order giving the guardian(s) custody of Ms HAE to the extent necessary to carry out the functions below. FUNCTIONS: Mr DYE 6. Mr DYE has the following function: a) Health care To decide what health care Ms HAE may receive. CONDITION: 7. The condition of this order is: a) Standard Condition In exercising this role the guardian shall take all reasonable steps to bring Ms HAE to an understanding of the issues and to obtain and consider her views before making significant decisions. 005: Financial Management Application The hearing of the application for a financial management order is adjourned to a date to be fixed by the Registrar.
Catchwords:	GUARDIANSHIP – application for guardianship order – woman with profound intellectual and physical disabilities – resident of FACS group home – palliative care plan – Withdrawal of Active Resuscitation order – previous orders signed by father as person responsible in consultation with medical practitioners – where CPR would be burdensome, intrusive and cause serious injury – new FACS policy on resuscitation plans – cardiopulmonary resuscitation mandated under policy unless guardian appointed to approve not for resuscitation order – consideration of common law principles concerning withholding of treatment – consideration of NSW Ministry of Health Directive on Using Resuscitation Plans in End of Life Decisions
Legislation Cited:	Civil and Administrative Tribunal Act 2013 s 36(1) Guardianship Act 1987 (NSW) ss 3F(2)(d), 3D, 3(1), 3(2), 4, 14(2), 14(2)(d), 17(1), 18(1), 18(1)(a), 18(1B), Part 5
Cases Cited:	Application of Justice Health; Re a Patient [2011] NSWSC 432 C S and M Y v the Guardianship Tribunal and the Public Guardian (Supreme Court (NSW), Windeyer J, 29 November 1999, unrep) FI v Public Guardian [2008] NSWADT 263 FI v New South Wales Trustee and Guardian (No. 2) [2010] NSWADT 43 Hunter Area Health Service v Marchlewski (2000) 51 NSWLR 264 Messiha v South East Health [2004] NSWSC 1061 National Health Service; Auckland Area Health Board v Attorney General [1993] 1 NZLR 235 Northbridge v Central Sydney Area Health Service [2000] NSWSC 1241; (2000) 50 NSWLR 549 Re B [2011] NSWSC 1075 Re G [1997] 2 NZLR 201
Texts Cited:	Family and Community Services ADHC, End of Life Care Planning Guidelines (Version 1.0, Family and Community Services ADHC, January 2016) Family and Community Services ADHC, Decision Making and Consent Guidelines (Version 1.0, Family and Community Services ADHC,…