KFT

[2022] NSWCATGD 19

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

KFT [2022] NSWCATGD 19

Hearing dates:

26 August 2022

Date of orders:

26 August 2022

Decision date:

26 August 2022

Jurisdiction:

Guardianship Division

Before:

S Barnes, Senior Member (Legal)
L Houlahan, Senior Member (Professional)
Dr S Barnes, General Member (Community)

Decision:

1. A guardianship order is made for KFT.

2. The Public Guardian is appointed as the guardian.

3. This is a continuing guardianship order for a period of six weeks from 26 August 2022.

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

FUNCTIONS:

5. The guardian has the following functions:

a) Accommodation

To decide where KFT may reside.

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

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

ii) keep him at that place.

iii) return him to that place should he leave it.

c) Health care

To decide what health care KFT may receive.

d) Medical/Dental consent

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

e) Services

To make decisions about services to be provided to KFT.

AUTHORITY:

6. The guardian has the following authority:

a) Authority to override objections to medical treatment

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

CONDITION:

7. The condition of this order is:

a) Standard Condition

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

Catchwords:

GUARDIANSHIP – application for a guardianship order – after hours hearing – urgent hearing requested as subject person seeking to leave hospital against medical advice – subject person suffered a traumatic brain injury with severe brain bleeding – severe cognitive impairment – need for consent to medical treatment with authority to override objections – need for accommodation decisions with authority for others to bring accommodation decisions into effect – need for health care and services decisions – no private guardian available – Public Guardian appointed – six week reviewable order made.

Legislation Cited:

Guardianship Act 1987 (NSW), ss 3(1)–(2), 4, 14(1)–(2), 46A

Cases Cited:

None cited.

Texts Cited:

None cited.

Category:

Principal judgment

Parties:

001: Guardianship Application

KFT (the person)
ETC (applicant)
Public Guardian

Representation:

Nil.

File Number(s):

NCAT 2022/00254602

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

GUARDIANSHIP APPLICATION

What the Tribunal decided

1. The Tribunal made a guardianship order appointing the Public Guardian as guardian for KFT as set out above.

Background

2. KFT is 51 years old and currently an inpatient in a public hospital. He usually lives alone in his home in regional NSW. It is reported that he has no close family or friends.

3. KFT has suffered a traumatic brain injury and has severe brain bleeding, understood to be the result of a fall. He is reported to have severe cognitive impairment.

4. On 26 August 2022, the Tribunal conducted an after-hours hearing in relation to a guardianship application made by ETC, KFT’s treating doctor at the public hospital.

The Hearing

5. At the end of these Reasons for Decision is a list of the participants in the hearing. KFT participated and had the opportunity to express his views but, consistent with the medical evidence referred to below, did not appear to appreciate the purpose of the hearing or to be able to engage meaningfully with the issues we needed to decide.

What did the Tribunal have to decide?

6. In making any decision in an application of this nature, we must consider the principles in s 4 of the Guardianship Act 1987 (NSW) (‘the Act’), in particular that KFT’s interests and welfare are paramount.

7. The questions to be considered by the Tribunal were:

• Is KFT someone for whom we could make a guardianship order?

• Should we make a guardianship order, and if so, what order should we make?

• If we make a guardianship order, who should we appoint as guardian and how long should the order last?

Is KFT someone for whom the Tribunal could make a guardianship order?

8. Section 14(1) of the Act enables the Tribunal to make a guardianship order for KFT if we are satisfied that he is “a person in need of a guardian”.

9. A person in need of a guardian is “a person who because of a disability is totally or partially incapable of managing their person”: the Act, s 3(1). The disability must restrict the person in one or more major life activities to the extent that he or she requires supervision or social habilitation (s 3(2) of the Act), that is, assistance to manage in society. Commonly, we consider the person’s ability to make important personal, health and lifestyle decisions, as that is a major life activity that impacts on the person’s ability to manage in society.

10. ETC, neurological advanced trainee at the public hospital, told us that KFT had suffered a traumatic brain injury on about 14 August 2022 and had severe brain bleeding. This was believed to be as the result of a fall. Initially he had been in an intensive care unit of another public hospital. While in ICU he had required 1 to 1 supervision.

11. It was decided at the other public hospital that surgery was not required, and KFT was transferred to the public hospital experiencing ongoing delirium and agitation. He was also experiencing alcohol and nicotine withdrawal. He continues to require 1 to 1 supervision. It was suggested that KFT will require ‘months’ of hospitalisation. It is hoped that he can undergo rehabilitation at a private hospital.

12. ETC reported that KFT lacks insight into his condition and health care needs. He is not oriented to time, place or person. She reported that he does not know why he is in hospital, actively wants to leave hospital and has made many attempts to do so. He becomes agitated and is seen as a flight risk. He was said to show no appreciation of the risks of leaving hospital. She told us that in her opinion KFT lacks the capacity to make informed decisions in relation to important personal and lifestyle matters. Given the severity of his brain bleeding she thought that the level of cognitive impairment would continue for easily two months. There was concern about impairment of KFT’s memory as well as his lack of insight and orientation.

13. Ms Z, duty officer from the Public Guardian’s office, acknowledged that KFT was someone for whom the Tribunal could make a guardianship order.

14. KFT told us that he does his ‘own thing’ and that he planned to go to a coastal city in regional NSW the next morning (we were conducting an evening hearing). He said he had things to do. He was dismissive of the doctor’s concerns about his health and well-being. Consistent with the medical evidence, he showed no insight into the impact of his brain injury.

15. Having regard to KFT’s lack of insight, we preferred and gave more weight to the expert medical evidence. We were satisfied that KFT has a disability, being traumatic brain injury and resulting cognitive impairment, which causes him to have impaired decision-making capacity for important personal, health and lifestyle decisions. He is partially incapable of managing his person and needs supervision or assistance to function in society. He is a person for whom the Tribunal could make a guardianship order.

Should we make a guardianship order, and if so, what order should we make?

16. When considering making an order, we must have regard to KFT’s views, if we were able to obtain them. We are also required to consider the importance of preserving his existing family relationships and particular cultural and linguistic environments as well as the practicability of him being provided with services without the need for an order: the Act, s 14(2).

17. We must consider each of these matters. If we need to consider different or competing issues, we undertake a balancing exercise. We also consider any other relevant evidence. We must have regard to the principles in s 4 of the Act. Where relevant evidence of particular weight about these issues was available to us, or where different factors needed to be balanced, we refer to it in our reasons.

18. KFT was of the view that he could do his ‘own thing’. We understood from this that he saw no need for a substitute decision-maker. We had regard to KFT’s views in the context of his lack of insight or appreciation of the purpose of the hearing and his reported cognitive impairment and gave more weight to the evidence about areas of decision-making in which it would be in his interests for a guardian to be appointed with decision-making power.

19. ETC and Ms Z identified several areas of decision-making where they felt that KFT might benefit from the appointment of a guardian.

20. A particular concern was that KFT is a flight risk. He has made repeated attempts to leave hospital. If he succeeded, this would expose him to a significant risk of harm. He lacks insight into the impact of his brain injury. However it is hoped that he can be transferred to the private hospital for rehabilitation when his condition settles. The witnesses agreed that it would be in KFT’s interests for a guardian to be appointed with functions of accommodation and authorise others so that decisions can be made about where he is to live and the guardian has the power to effect, maintain and restore any such decision.

21. The other issue that was of particular concern to ETC was that KFT lacks the capacity to consent to some medical treatment. He was not compliant with medication and treatment in the ICU. He has only recently moved to the public hospital and there is a real concern that he may need chemical sedation at times, but that he may continue to object and that, in any event, he lacks the capacity to give informed consent. There is no identified person responsible. KFT is aggressive and very mobile. He is presently receiving medication for pain relief and to treat his aggressive behaviour (including antipsychotic medication) and also some PRN medication for alcohol withdrawal. It was reported that, as a last resort, he may again require administration of medication by intramuscular injection to which he objected strongly in the ICU.

22. It was proposed that a guardian should have functions of medical and dental consent and also the power to override KFT’s objections to treatment.

23. Ms Z from the Public Guardian’s office indicated that the Public Guardian consented to conferral of power under s 46A of the Act to override KFT’s objections to major or minor treatment.

24. We were satisfied on the evidence above that any such objection by KFT would be made only because of his lack of understanding of the nature of, or reason for, the treatment and that proposed treatment for his medical conditions, pain and to manage his aggressive behaviour is manifestly in his best interests.

25. Ms Z suggested that it would also be in KFT’s interests for the guardian to have a health care function to oversee all his treatment and a services function to facilitate decision making in the event of a transfer for rehabilitation. We agreed.

26. There was no evidence that making a guardianship order of the nature proposed would have any impact on any existing family relationship, cultural or linguistic environment of KFT. However, given his lack of insight, risk of flight, strong views and reported lack of cooperation, we could not be satisfied that it would be practicable for him to receive needed services in the absence of a guardianship order.

27. We decided that we should appoint a guardian to make accommodation, authorise others, health care, medical and dental consent, and services decisions and with authority to override KFT’s objections to treatment.

Whom should we appoint as guardian, and how long should the order last?

28. There was no private person proposed or available to be appointed as guardian. Therefore, we appointed the Public Guardian.

29. We decided to make an order for six weeks. ETC sought only an initial short-term order to allow time for KFT’s condition to stabilise with appropriate treatment, although she also anticipated that there would be a longer-term need for a guardian. Many decisions which are likely to be required will need to be made in the short-term. The Tribunal will review the need for a guardian, or whether all of the relevant functions are needed, at the expiration of the order. There should be evidence from health professionals as to the extent of KFT’s ongoing disability and his needs at that time.

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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: 18 January 2023