KCB

[2020] NSWCATGD 56

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

KCB [2020] NSWCATGD 56

Hearing dates:

17 June 2020

Date of orders:

17 June 2020

Decision date:

17 June 2020

Jurisdiction:

Guardianship Division

Before:

J Moir, Senior Member (Legal)
J McAuliffe, Senior Member (Professional)
I Ferreira, General Member (Community)

Decision:

The guardianship order for KCB made on 17 January 2020 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 17 January 2020.

3. This is a limited guardianship order giving the guardian custody of KCB to the extent necessary to carry out the functions below.

FUNCTIONS:

4. The guardian has the following functions:

a) Accommodation

To decide where KCB may reside.

b) The guardian may authorise others including members of NSW Police and the Ambulance Service of NSW to:

i) take KCB to a place approved by the guardian.

ii) keep them at that place.

iii) return them to that place should they leave it.

c) Medical/Dental consent

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

d) Services

To make decisions about services to be provided to KCB.

AUTHORITY:

5. The guardian has the following authority:

a) Authority to override objections to medical treatment

i) The guardian may override the objection of KCB to major or minor medical treatment.

CONDITION:

6. The condition of this order is:

a) Standard Condition

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

Catchwords:

GUARDIANSHIP – requested review of a guardianship order – request for urgent review – subject person experiencing possibly serious health issue – whether guardianship functions should be varied – subject person objecting to hospital admission – subject person does not understand the potential seriousness of their condition – need for medical treatment decisions to be made with authority to override objections – need for accommodation decision with authority to authorise others to carry out decisions for hospital admissions – guardianship order varied.

Legislation Cited:

Guardianship Act 1987 (NSW), ss 4, 14(2)

Cases Cited:

IF v IG [2004] NSWADTAP 3

Texts Cited:

Nil

Category:

Principal judgment

Parties:

005: Requested Review of Guardianship Order

KCB (the person)
TAC (applicant)
NSW Public Guardian (appointed guardian)

Representation:

Nil

File Number(s):

NCAT 2018/00398250

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

REQUESTED REVIEW OF GUARDIANSHIP ORDER

Background

1. KCB lives in supported accommodation operated by a disability service provider. He is reported to have alcohol related cognitive impairment. KCB has been subject to a guardianship order for some time and this was most recently reviewed on 17 January 2020, when the Tribunal appointed the Public Guardian for 12 months to make decisions for KCB about his accommodation and services.

2. On 17 June 2020 the Tribunal’s after hour’s service received an oral application to review the guardianship order from TAC, accommodation manager at the service provider. He asked that the order be reviewed to allow the guardian to make decisions to transfer KCB to hospital for investigation of a possible serious bowel bleed.

3. These reasons for decision arise from the urgent after hours hearing conducted to consider this application.

The hearing

4. The hearing was held by telephone on an urgent basis after hours. The Tribunal spoke to KCB, TAC, Ms Z, support worker and Mr Sean Hosking, duty guardian from the Public Guardian.

What did the Tribunal have to decide?

5. On reviewing the current guardianship order at TAC’s request, the Tribunal may confirm, vary, suspend, revoke, renew or renew and vary the order. As noted above, TAC has requested the Tribunal to review the current guardianship order to give the guardian additional authority to enable investigation of a potentially serious health issue for KCB.

6. When dealing with a requested review of this kind, the Tribunal is able to focus the review on the basis on which the review has been sought. The Tribunal does not need to address matters beyond this unless there is a need to do so. In KCB’s case the Tribunal limited the review to the issue raised by TAC in his application.

7. Accordingly, the question to be considered by the Tribunal is what functions should now be given to the guardian?

What functions should now be given to the Tribunal?

8. The Tribunal must consider all of the following matters set out in s 14(2) of the Guardianship Act 1987 (NSW) before exercising its discretion in making a guardianship order:

1. the views (if any) of:

1. the person;

2. the person’s spouse;

3. the person’s carer; and

2. the importance of preserving the person’s existing family relationships;

3. the importance of preserving the person’s particular cultural and linguistic environments; and

4. the practicability of services being provided to the person without the need for the making of such an order.

9. These matters have no hierarchy or weighting and each is a mandatory consideration. However, the Tribunal must undertake a balancing exercise for its consideration of the matters in s 14(2) of the Guardianship Act. When undertaking this task the Tribunal must be guided by the principles that are set out in s 4 of the Guardianship Act (see IF v IG [2004] NSWADTAP 3).

10. TAC said he received a call during the afternoon from Ms Z, who was concerned about a very large, dark, liquid and “tarry” bowel motion that KCB had that afternoon. She was cleaning his bathroom when she observed this in the toilet and on the toilet seat and the floor of the bathroom, as well as on KCB’s feet and legs. TAC said that he called two registered nurses which his services has on call and asked them about this and they both advised that he should go to hospital for investigation. TAC said that he understood that this was suggestive of internal bleeding, possibly from the bowel and that if this was the case, he was concerned about the potential for KCB’s condition to deteriorate quickly.

11. TAC said that he spoke to KCB several times this afternoon and suggested that he go to hospital, but he has not been willing to do so. KCB told the Tribunal that he agreed with TAC, but that he did not want to go to hospital. It was evident that KCB did not understand the potential seriousness of the situation if he does have internal bleeding as suggested by TAC.

12. TAC asked that the order be varied to give the guardian the ability to call on others to transport KCB to hospital for investigation and to consent to medical treatment (including investigations) even if he is objecting.

13. The Public Guardian supported the variation of the order as proposed and indicated that the Public Guardian would be willing to accept responsibility to consent to medical treatment even if KCB objects.

14. The Tribunal noted that the existing guardianship order provides for the guardian to make decisions about KCB’s accommodation, but does not provide for a guardian to call on others to take KCB to a place if he does not want to go, or keep him there, if he does not wish to stay. Given the legitimate concerns about his recent symptoms and his lack of willingness to go to hospital for investigation of these, the Tribunal was satisfied that it was in KCB’s interests to vary the order so the guardian can call on others to take KCB to hospital and keep him there.

15. The current guardianship order does not provide for the guardian to make decisions about KCB’s medical treatment. In the circumstances the Tribunal considered that it was in KCB’s interests to give the guardian the ability to consent to his medical treatment, even if he was opposed to that treatment.

16. The order should therefore be varied and the guardian given the authority to make decisions for KCB regarding his accommodation (authorise others), services, and to consent to medical and dental treatment, even if KCB objects to that treatment.

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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: 09 June 2021