JSG
[2014] NSWCATGD 20
•07 April 2014
Civil and Administrative Tribunal
New South Wales
Case Title: JSG Medium Neutral Citation: [2014] NSWCATGD 20 Hearing Date(s): 7 April 2014 Decision Date: 07 April 2014 Jurisdiction: Guardianship Division Before: Giurissevich A, Senior Member (Legal)
Matheson M, Senior Member (Professional)
Smith M, General Member (Community)Decision: Application for guardianship dismissed.
Catchwords: GUARDIANSHIP - application for guardianship order - involuntary patient - person refusing services - intersection between Guardianship Act and Mental Health Act - coercive powers - no practical utility.
PROCEDURAL FAIRNESS - notice of hearing - notice of hearing not served on subject person.Legislation Cited: Guardianship Act 1987 (NSW)
Mental Health Act 2007 (NSW)Category: Principal judgment Parties: Ms JSG (subject person)
Ms KAB (applicant)
The Public GuardianFile Number(s): 55493 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
What the Tribunal decided
The Tribunal dismissed the application for guardianship in relation to Ms JSG made by Ms KAB.
Background
Ms JSG is a 33-year-old woman who is said to have a mental illness. On the day of the hearing her whereabouts were still unknown after having left the Mental Health Unit in Regional NSW in mid-February of this year. This issue is discussed in further detail below.
The application made by Ms KAB, Social Worker at the Mental Health Unit, had been received on 31 January 2014 whilst Ms JSG was an involuntary patient of that unit under the provisions of the Mental Health Act 2007 (NSW) ('the Mental Health Act').
The application was seeking the appointment of a Guardian for Ms JSG as she was said to be refusing appropriate accommodation and rehabilitation services.
The Hearing
Notice of the Hearing
Ms NBT, Social Worker, gave evidence to the Tribunal on behalf of Ms KAB, the original applicant, who was unavailable on the date of the hearing.
Ms NBT confirmed that Ms JSG had left the hospital after self discharging from the low dependency unit in mid-February of this year. There had been no contact with her since that time.
In response to questions from the Tribunal Ms NBT said that although Ms JSG's absconding had been reported to police she had not been found and was not listed as a missing person. Additional attempts to locate her had been made by trying to phone her mother and her sister but actual contact had never been made with either one of them and nor had they returned the calls. It was thought that they may know of Ms JSG's whereabouts but were not prepared to disclose that to service providers.
When the Tribunal asked whether Ms JSG knew that a guardianship application had been made and that this hearing was taking place, Ms NBT could not confirm same. Indeed, based on the available evidence the Tribunal could only conclude that Ms JSG had not been served with a copy of the application and was unaware of the hearing.
Having regard to the absence of any evidence indicating that Ms JSG was living in circumstances of high or imminent risk to such an extent that the Tribunal might consider proceeding with the hearing on an ex parte basis the Tribunal determined that this was not a matter where it was appropriate to do so.
The Tribunal was of the view that the basic principles of procedural fairness precluded it from making any orders given the absence of notice and the fact that Ms JSG was not at the hearing and therefore would not have the opportunity to express her views or be heard on the application.
The Tribunal did give consideration to whether it should adjourn the hearing, however, decided there was no point in doing so given that Ms JSG had now been discharged from the Mental Health Unit for over two months and there was no information before the Tribunal as to when she might be located or whether she was still in the jurisdiction.
Accordingly the Tribunal decided to proceed to consider generally what guardianship could achieve in this matter on the basis of the information that was available as at the date of this hearing.
What would the Tribunal have to decide in making a guardianship order?
Even though the Tribunal had decided not to proceed to make any formal findings on the substantial issues there was some discussion about what the appointment of a guardian was seeking to achieve in this matter. The threshold questions which have to be decided by the Tribunal prior to making a guardianship order are:
(1)Is Ms JSG someone for whom the Tribunal could make an order because she has a disability which prevents her from being able to make important life decisions?
(2)Should the Tribunal make a guardianship order and if so, what order should be made?
(3)Who should be the guardian?
(4)How long should the order last?
The professional reports available to the Tribunal, which included the report from Dr Z, Psychiatry Registrar, referred to Ms JSG as a person who had a long-standing and chronic mental illness.
Is Ms JSG someone for whom the Tribunal could make an order because she has a disability which prevents her from being able to make important life decisions?
Section 14 of the Guardianship Act 1987 (NSW) ('the Guardianship Act') 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" (section 3(1), Guardianship Act). 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; 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 (section 3(2), Guardianship Act).
The application made a general assertion that Ms JSG was incapable of making life style decisions such as where to live or what medical treatment she should have because of her mental illness. At a prima facie level, therefore, it may have been open to the Tribunal to make a finding on the threshold issues of disability and incapacity.
Should the Tribunal make a guardianship order and what order should be made?
As noted above section 14 of the Guardianship Act gives a discretion to the Tribunal in the making of guardianship orders after having regard, amongst other things, to the views of the person as well as the practicability of services being provided to the person without the need for a guardianship order.
Ms JSG has apparently not expressed any opinion about the need for a guardian or otherwise but the fact that she has self discharged from a mental health facility indicates her preference or election not to engage with those services.
Moreover, in considering the need for a guardianship order the Tribunal has to be reasonably satisfied that a guardianship order is capable of being implemented.
The representative from the Public Guardian, asked Ms NBT what types of substitute decisions needed to be made for Ms JSG if a guardian was to be appointed because it was unclear to the Public Guardian what those decisions might be.
Ms NBT told Tribunal that Ms JSG had been refusing to have dental treatment which she needed and would most likely not consent to or agree to the course of clopine treatment that was being proposed while she was still in the Mental Health Unit. Further it was proposed that a guardian could decide about stable accommodation for Ms JSG as her history indicated that she was often homeless or otherwise made poor choices in that regard.
The Tribunal noted that where the provisions of the Guardianship Act intersect with those of the Mental Health Act that the latter Act prevails. Consequently a person that is being held as an involuntary patient under the provisions of the Mental Health Act can have medication prescribed and administered to treat their mental illness as directed by the Medical Superintendent of the facility where they are being treated and that the medication can be administered against the wishes of the patient if necessary.
Similarly medications can be mandated for a patient for the treatment of their mental illness when discharged from a mental health facility under the provisions of a Community Treatment Order ("CTO") made pursuant to section 51 of the Mental Health Act. If the person fails to comply with the provisions of the CTO then there may be a breach notice issued which requires the person to be returned to hospital for further treatment.
The coercive powers available under the Mental Health Act for treatment of a patient with a mental illness have a powerful legislative basis which may include the legal authority to detain that patient as an involuntary patient in a locked ward of a mental health facility which was the case with Ms JSG.
Although coercive powers are sometimes made available under a guardianship order this may not always facilitate the practical implementation of substitute decisions about accommodation and/or medical and dental treatment as was being proposed in this matter.
The overriding difficulty, in the Tribunal's view, in matters such as these was that Ms JSG seemingly had a level of functioning which permitted her to make the election that she did by discharging herself in a practical sense. Attempts by the police to locate her and retrieve her to the unit were unsuccessful and were no longer being pursued and in fact appeared to have been abandoned at an early stage as she was not considered to be a missing person.
Just as Ms JSG had managed to abscond from the low dependency unit of the hospital Mental Health facility and had now remained under the radar for more than two months similarly she could do so even if there was a guardianship order in place.
Guardianship is the process of making substitute decisions on behalf of someone who is found to have an incapacity to make those decisions themselves. Forcing someone to stay somewhere they do not want to be or to have treatment that they do not want to have is a totally different proposition in terms of implementation and guardianship may not be able to resolve those issues for persons such as Ms JSG.
Accordingly the Tribunal formed the view that this was a matter where the need for a guardian would be difficult to establish as the implementation of the order would be problematic. It follows that where the disability in question is a mental illness it may be more appropriate to utilise the provisions of the Mental Health Act as abovementioned.
At the conclusion of the hearing the representative from the Public Guardian invited Ms NBT and the original applicant Ms KAB to phone him at the office of the Public Guardian if at some time in the future they were considering making a further application in respect of Ms JSG and wished to discuss the issues further.
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