KGK - [2023] NSWCATGD 14

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: KGK [2023] NSWCATGD 14
Hearing dates: 16 August 2023
Date of orders: 16 August 2023
Decision date: 16 August 2023
Jurisdiction: Guardianship Division
Before: EM Connor, Senior Member (Legal)
AM Matheson, Senior Member (Professional)
Professor M McDaniel, General Member (Community)
Decision:
1. A guardianship order is made for KGK.
2. The Public Guardian is appointed as the guardian.
3. This is a continuing guardianship order for a period of 12 months from 16 August 2023.
4. This is a limited guardianship order giving the guardian(s) custody of KGK to the extent necessary to carry out the functions below.
FUNCTIONS:
5. The guardian has the following functions:
a) Accommodation
To decide where KGK may reside.
b) The guardian may authorise others including members of NSW Police and the Ambulance Service of NSW to:
i) take KGK to a place approved by the guardian.
ii) keep her at that place.
iii) return her to that place should she leave it.
c) Health care
To decide what health care KGK may receive.
d) Medical/Dental consent
To make substitute decisions about proposed minor or major medical or dental treatment, where KGK is not capable of giving a valid consent.
e) Services
To make decisions about services to be provided to KGK.
AUTHORITY:
6. The guardian has the following authority:
a) Authority to override objections to medical treatment
i) The guardian may override the objection of KGK 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 KGK to an understanding of the issues and to obtain and consider her views before making significant decisions.

Catchwords:
GUARDIANSHIP – application for a guardianship order – whether subject person is a person in need of a guardian – subject person with paranoid personality and ideas – refusal to comply with recommended treatment of leg ulcers – whether subject person has a disability – interpretation of s 3(2) of the Guardianship Act 1987 – meaning of the words ‘otherwise disabled’ – finding that the subject person has a disability – need for medical and dental consent decisions – need for accommodation, healthcare and services decisions – authority to override objections to medical treatment – no private person available to be appointed – Public Guardian appointed – order made

Legislation Cited:
Guardianship Act 1987 (NSW), ss 3(1)-(2), 4, 14, 14(2), 15(3), 46A

Cases Cited:
IF v IG [2004] NSWADTAP 3
OE v OF [2009] NSWADTAP 60

Texts Cited:
None cited.

Category: Principal judgment
Parties:
001: Guardianship Application
KGK (the person)
TZC (applicant)
Public Guardian
Representation: Nil.

File Number(s): NCAT 2023/00198414
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

Background

KGK is a 73-year-old woman…

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 KGK

Details

AGLC: KGK [2023] NSWCATGD 14
Case: [2023] NSWCATGD 14
Decision Date: 16 August 2023

CaseChat Overview and Summary

KGK, the subject person, applied for a guardianship order under the Guardianship Act 1987. KGK has a paranoid personality and ideas and refuses to comply with recommended treatment for leg ulcers. The court was required to determine whether KGK is a person in need of a guardian and whether she has a disability. The definition of disability under section 3(2) of the Guardianship Act 1987 was considered. The court found that KGK has a disability due to her inability to consent to medical treatment and her refusal to comply with recommended treatment. The court also found that KGK requires decisions to be made about her accommodation, healthcare, and services, and that authority to override objections to medical treatment is necessary.

The court considered the meaning of the words 'otherwise disabled' under section 3(2) of the Guardianship Act 1987. The court found that KGK's refusal to comply with recommended treatment for her leg ulcers constitutes a disability. The court also found that KGK requires decisions to be made about her accommodation, healthcare, and services, and that authority to override objections to medical treatment is necessary. The court considered whether there was a private person available to be appointed as a guardian but found that there was no such person. The Public Guardian was appointed as the guardian, and a guardianship order was made for a period of 12 months. The guardian has the authority to make decisions about KGK's accommodation, healthcare, and services, and to override objections to medical treatment. The guardian is also required to take all reasonable steps to bring KGK to an understanding of the issues and to obtain and consider her views before making significant decisions.

Orders

Orders of the court

1. A guardianship order is made for KGK.

2. The Public Guardian is appointed as the guardian.

3. This is a continuing guardianship order for a period of 12 months from 16 August 2023.

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

FUNCTIONS:

5. The guardian has the following functions:

a) Accommodation

To decide where KGK may reside.

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

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

ii) keep her at that place.

iii) return her to that place should she leave it.

c) Health care

To decide what health care KGK may receive.

d) Medical/Dental consent

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

e) Services

To make decisions about services to be provided to KGK.

AUTHORITY:

6. The guardian has the following authority:

a) Authority to override objections to medical treatment

i) The guardian may override the objection of KGK 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 KGK to an understanding of the issues and to obtain and consider her views before making significant decisions.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	KGK [2023] NSWCATGD 14
Hearing dates:	16 August 2023
Date of orders:	16 August 2023
Decision date:	16 August 2023
Jurisdiction:	Guardianship Division
Before:	EM Connor, Senior Member (Legal) AM Matheson, Senior Member (Professional) Professor M McDaniel, General Member (Community)
Decision:	1. A guardianship order is made for KGK. 2. The Public Guardian is appointed as the guardian. 3. This is a continuing guardianship order for a period of 12 months from 16 August 2023. 4. This is a limited guardianship order giving the guardian(s) custody of KGK to the extent necessary to carry out the functions below. FUNCTIONS: 5. The guardian has the following functions: a) Accommodation To decide where KGK may reside. b) The guardian may authorise others including members of NSW Police and the Ambulance Service of NSW to: i) take KGK to a place approved by the guardian. ii) keep her at that place. iii) return her to that place should she leave it. c) Health care To decide what health care KGK may receive. d) Medical/Dental consent To make substitute decisions about proposed minor or major medical or dental treatment, where KGK is not capable of giving a valid consent. e) Services To make decisions about services to be provided to KGK. AUTHORITY: 6. The guardian has the following authority: a) Authority to override objections to medical treatment i) The guardian may override the objection of KGK 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 KGK to an understanding of the issues and to obtain and consider her views before making significant decisions.
Catchwords:	GUARDIANSHIP – application for a guardianship order – whether subject person is a person in need of a guardian – subject person with paranoid personality and ideas – refusal to comply with recommended treatment of leg ulcers – whether subject person has a disability – interpretation of s 3(2) of the Guardianship Act 1987 – meaning of the words ‘otherwise disabled’ – finding that the subject person has a disability – need for medical and dental consent decisions – need for accommodation, healthcare and services decisions – authority to override objections to medical treatment – no private person available to be appointed – Public Guardian appointed – order made
Legislation Cited:	Guardianship Act 1987 (NSW), ss 3(1)-(2), 4, 14, 14(2), 15(3), 46A
Cases Cited:	IF v IG [2004] NSWADTAP 3 OE v OF [2009] NSWADTAP 60
Texts Cited:	None cited.
Category:	Principal judgment
Parties:	001: Guardianship Application KGK (the person) TZC (applicant) Public Guardian
Representation:	Nil.
File Number(s):	NCAT 2023/00198414
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.