JXN

[2022] NSWCATGD 26

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

JXN [2022] NSWCATGD 26

Hearing dates:

25 February 2022

Date of orders:

25 February 2022

Decision date:

25 February 2022

Jurisdiction:

Guardianship Division

Before:

C P Fougere, Principal Member
Dr M J Wroth, Senior Member (Professional)
R Royer, General Member (Community)

Decision:

The application seeking consent to medical treatment is dismissed after hearing.

1.   A guardianship order is made for JXN.

2.   The Public Guardian is appointed as the guardian.

3.   This is a continuing guardianship order for a period of three months from 25 February 2022.

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

FUNCTIONS:

5.   The guardian has the following functions:

a)   Health care

To decide what health care JXN may receive.

b)   Medical/Dental consent

To make substitute decisions about proposed minor or major medical or dental treatment, where JXN is not capable of giving a valid consent.

c)   Sexual Assault Assessment

To make decisions on behalf of JXN in relation to any sexual assault assessment conducted involving them, including decisions about any physical examinations and the taking of any specimens or samples such as blood samples and about conducting any tests for the presence of blood, semen or other substances.

d)   Release of Sexual Assault Investigation Kit

To make decisions on behalf of JXN in relation to the release to NSW Police or other appropriate authority of any Sexual Assault Investigation Kit concerning JXN, including any Forensic Protocol and any specimens, samples or test results relating to a sexual assault assessment.

CONDITION:

6. The condition of this order is:

a) Standard Condition

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

Catchwords:

GUARDIANSHIP – application for a guardianship order – urgent application – subject person an in-patient at a public hospital – subject person experiencing a state of catatonia – need for decisions to be made in relation to a sexual assault assessment and the release of any sexual assault investigation kit – need for decisions to be made in relation to health care and consent to medical treatment – no private person available – Public Guardian appointed – order made

Legislation Cited:

Guardianship Act 1987 (NSW), ss 3(1)-(2), 14, 14(2), 15(3)

Cases Cited:

P v NSW Trustee and Guardian [2015] NSWSC 579

Texts Cited:

None cited.

Category:

Principal judgment

Parties:

001: Consent to Medical or Dental Treatment

JXN (the person)
EZM (applicant)

002: Guardianship Application

JXN (the person)
TBC (applicant)
Public Guardian

Representation:

Nil.

File Number(s):

NCAT 2022/00055830

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

What the Tribunal decided

1. We decided to make a guardianship order for JXN and appointed the Public Guardian as her guardian for three months. We granted to JXN’s guardian the authority to make decisions on JXN’s behalf as to her health care and to give or withhold consent to medical and dental treatment if required. We also provided the Public Guardian with authority to make decisions on JXN’s behalf about a sexual assault assessment and make decisions about the release of any sexual assault investigation kit.

2. We dismissed the application for medical consent. It was unnecessary to consider this application given the authority that the Public Guardian now has in relation to medical decisions on JXN’s behalf.

Background

3. JXN is a 44-year-old woman who at the time of this hearing had been a patient at a public hospital since 21 February 2022. We were considering an urgently lodged guardianship application made by a social worker at the hospital, TBC. The initial application seeking medical consent was received by the Tribunal Registry in the early afternoon of 25 February 2022. Due to the matters raised in the application concerning the possible sexual assault of JXN and giving paramount consideration to her welfare and interests, a three-member panel was convened shortly thereafter. As the hearing was commencing, the Tribunal members were handed the guardianship application made by TBC.

Summary of evidence available to the Tribunal

4. The following points summarise the evidence given to us concerning JXN’s current circumstances:

1. At the time of the hearing JXN was described as being in a catatonic-like state. We were therefore unable to obtain her views about the application or seek her response to the evidence given to us by the health professionals at the public hospital.

2. JXN has an eight-year-old daughter who had been in the full-time care of her daughter’s father (JXN’s ex-husband) since her admission to hospital. The evidence indicated that the hospital had had limited contact with JXN’s ex-husband, and they had not informed him of the application to the Tribunal. Due to the matters raised in the application and the urgency with which we heard this matter, we did not seek to involve JXN’s ex-husband in the hearing.

3. JXN’s parents are German citizens and live in Berlin. Shortly before this hearing commenced, the German Consulate contacted the public hospital asking for information about JXN on behalf of her parents. The hospital felt unable to provide this information due to privacy concerns.

4. The hospital has not had contact from anyone else in relation to JXN.

5. JXN was admitted to hospital after having been found wandering in regional NSW far from her vehicle which she had left parked at her workplace. Police were called and they brought her to the public hospital. JXN had failed to collect her daughter from childcare and her work colleagues had reported that she had exhibited altered behaviour at work on 21 February 2022.

6. The evidence of Dr Z was that several tests have been undertaken since JXN’s admission including a CT brain scan and MRI head scan which indicated previous aneurysm surgery but no new aneurysm. From these tests, no organic, reversible causes of JXN’s catatonic-like state have been identified.

7. Dr Z advised that other tests such as lumbar puncture and EEG have not been carried out and specialist neurology and mental health expertise is not available at the public hospital. JXN has been prescribed antibiotics for a UTI and a low dose of Clonazepam which, according to Dr Z, was on the basis that it may assist with her current mental state.

8. According to Dr Z, on the morning of this hearing, nursing staff who were attending to JXN’s personal care observed bruising on JXN’s genitals and legs. Police attended again at the hospital and following this, the applications to the Tribunal were made. Dr Z said that the possibility that JXN had been sexually assaulted was contemplated when she was first admitted to the Emergency Department on 21 February 2022 and some of her items of clothing had been taken by police, but no further clinical steps were taken.

9. A guardian is sought to give consent to an examination of JXN being undertaken to ascertain whether there is any forensic evidence that may indicate that JXN was sexually assaulted on 21 February 2022. A guardian was also sought to be appointed to consent to the release of any collected forensic evidence to NSW Police.

10. Due to the length of time that has passed since 21 February 2022, we were told that a forensic examination needs to be undertaken urgently to preserve any potential evidence. The public hospital does not have the expertise available to undertake such an examination, and it is proposed that JXN is urgently transferred to another public hospital where this can occur with the involvement of the specialist sexual assault service in that area at regional NSW. We were told that this transfer needed to occur on the same afternoon as this hearing.

What did we need to consider?

5. The questions which we had to decide were as follows:

• Is JXN someone for whom we could make a guardianship order because she has a disability which prevents her from being able to make important life decisions?

• Should the Tribunal make a guardianship order and if so, what order should be made?

• Who should be the guardian?

• How long should the order last?

Is JXN someone for whom we could make an order because she has a disability which prevents her from being able to make important life decisions?

6. Section 14 of the Guardianship Act 1987 (NSW) (the Act) provides that the Tribunal may make a guardianship order for a person if it is satisfied that he or 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”: the Act, s 3(1). A person with a disability is a person who is:

1. intellectually, physically, psychologically or sensorily disabled;

2. of advanced age;

3. a mentally ill person within the meaning of the Mental Health Act 2007 (NSW); or

4. otherwise disabled;

and by virtue of that fact is restricted in one or more major life activities to such an extent that she requires supervision or social habilitation: the Act, s 3(2).

7. We accepted the evidence from Dr Z and TBC that JXN is currently experiencing a state of catatonia. The underlying cause of this state is not yet known but it has resulted in a situation in which she is unable to make any informed decisions on her own behalf. We were satisfied that JXN is severely restricted in making decisions to such an extent that she requires supervision in this regard (P v NSW Trustee and Guardian [2015] NSWSC 579, [303]). JXN is at least partially incapable of managing her person and is a “person in need of a guardian. The power to make a guardianship order may therefore be exercised.

Should a guardianship order be made?

8. In considering whether or not to make a guardianship order, we must take into account the matters listed in s 14(2) of the Act, relevantly the views of JXN, the views of her spouse (if any) and unpaid carers (if any), the importance of preserving her existing family relationships and cultural and linguistic environments and the practicability of services being provided for JXN without the need for the making of a guardianship order.

9. We accepted the evidence given by JXN’s medical team that she needs to be urgently transferred to the other public hospital so that a forensic examination may be undertaken, and the results of that examination released to NSW Police. JXN is currently unable to consider whether she wishes for these processes to occur. In these circumstances, only a guardian with the necessary authority would have the legal authority to give consent if satisfied that it is in JXN’s interests to do so. On this basis we appointed a guardian in relation to these matters.

10. The evidence also indicated that the underlying cause of JXN’s current mental state is yet to be determined, whether that be a medical cause or the result of a traumatic event such as a sexual assault. She also has a history of brain aneurysms and although some scans have been undertaken, she has not had access to specialist neurological or psychiatric care whilst at the public hospital. We were satisfied that JXN does not currently have the capacity to make health care and medical decisions for herself. In the absence of anyone else currently available to take on the role of substitute decision maker as her “person responsible”, we were satisfied that a guardian should be appointed in respect of these matters.

11. The representative of the Public Guardian at this hearing agreed with the proposal that a guardian is appointed with these decision-making functions.

12. The urgency with which we had to consider the applications before us meant that we had limited information about JXN’s family circumstances, her linguistic or cultural environment, other than she is originally from Germany, and no evidence from anyone who is close to her. As previously noted, we were advised that JXN’s parents, who live in Berlin, are trying to obtain information about her current situation through the German Consulate. We formed the view that the appointment of a guardian will allow information to be provided, as the guardian considers appropriate, to her family members to support these relationships and allow decision making to occur with more information about JXN’s background. The appointed guardian’s decisions will also need to be made having regard to the preservation of JXN’s important relationship with her daughter and, as we understand it, her daughter’s current full-time carer being JXN’s former husband.

Who should be the guardian?

13. Under s 15(3) of the Act, a continuing order appointing the Public Guardian as the guardian of a person shall not be made in circumstances in which such an order can be made appointing some other person as the guardian.

14. As there was no-one available to be considered for the role as guardian, we were left with no option but to appoint the Public Guardian as JXN’s guardian.

Length of order

15. On an initial application, a guardianship order can be made up to one year and in some circumstances for a lengthier period.

16. Having heard and accepted the evidence as to the uncertainty about the cause of JXN’s current mental state and the need identified for further specialist care, we decided to make an order for three months. We did so whilst being very cognisant that we did not have JXN’s views or the views of anyone close to her. The period of the order was supported by the representative of the Public Guardian.

17. Balancing these matters and taking into account the need for decision making to occur on JXN’s behalf over this critical period, we concluded that a three-month order was appropriate.

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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: 22 February 2024