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

1. KGK is a 73-year-old woman originally from Poland who is divorced and has one son from whom she is estranged. She has been living at an aged care facility in an inner-east suburb of Sydney, a facility managed by a charitable institution, since 18 May 2023. KGK previously lived alone in private rental accommodation in southwest Sydney from which she was reportedly evicted due to hoarding behaviour and squalor.

2. On 21 June 2023 an application for the appointment of a guardian for KGK was received from TZC, a registered nurse at the aged care facility.

3. On 5 July 2023 the Tribunal adjourned the hearing of the guardianship application because KGK had not been provided with the written material lodged with the application prior to the hearing.

4. On 24 July 2023 the hearing was again adjourned. KGK was directed to attend an appointment with a psychiatrist arranged by TZC and TZC was directed to ask the psychiatrist to either provide a report or be available for the further hearing on 16 August 2023.

The hearing

5. At the end of these Reasons for Decision are lists of the parties to the application and the witnesses who attended the hearing. [Appendix removed for publication.]

6. A report dated 16 August 2023 from Dr Z, consultant psychiatrist with a mental health service, was received on the day of the hearing. We stood the matter down to allow time for KGK to read it.

Settlement

7. The Tribunal may, where it considers appropriate, use resolution processes to bring the parties to a settlement. There was no conflict in this matter, but KGK was adamant that she does not have a disability and does not need a substitute decision maker.

GUARDIANSHIP APPLICATION

What did the Tribunal have to decide?

8. Prior to determining whether a guardianship order should be made for a person, the Tribunal must be satisfied that they have a disability that prevents them from being able to make important life decisions, or they must be of advanced age.

9. The questions which had to be decided by the Tribunal were:

• Is KGK 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?

• 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 KGK 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?

10. 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 he or she requires supervision or social habilitation: the Act, s 3(2).

11. The Tribunal considered evidence about KGK’s medical condition and capacity to make decisions at the hearing on 24 July 2023 that was adjourned. That evidence was set out in the Reasons for Decision from that hearing and is repeated here for convenience:

“[8]   In the application it is stated that [KGK] has vascular ulcers on both legs. She has been seen by a general practitioner multiple times and prescribed antibiotics but does not comply with the recommended treatment and clinical care. There is a risk of her developing sepsis and requiring amputation of her legs but she has declined to see a vascular surgeon or have imaging recommended by the general practitioner.

[9]   In the application it is noted that [KGK]’s capacity to make decisions has never been assessed. It is stated that she is ‘strongly against Western medication’ and believes that ‘sleeping more’ will heal her legs. It is suggested that [KGK] may have an undiagnosed mental illness.

[10]   [KGK] attended the hearing in person on her own. She told us that ‘guardianship has taken on a life of its own’ and that she ‘sees a lot of half-truths’. She did not ‘refuse Western medicine’ but had ‘no need to see a doctor for seven years’. [KGK] acknowledged that she needs antibiotics but ‘not too much’ and ‘at the moment is having a few days’ break’ because she developed a ‘female problem’ which she has had to deal with. She said: ‘They are exaggerating’; that she wants to take things ‘sensibly’; and that the healing will progress, ‘but slowly’, if she continues to manage it her way. [KGK] asserted that ‘it (the swelling and ulcers) has happened many times before’.

[11]   The Tribunal spoke to [Dr X], a general practitioner who has seen [KGK]. [Dr X] gave evidence that [KGK] got a ‘normal’ score on a Mini Mental State Examination (MMSE) and that there is ‘no evidence of cognitive impairment or mental illness’. She has explained to [KGK] many times the risks of her not accepting the recommended treatment (medication to reduce the swelling in her legs and anti-biotics) but [KGK] continues to have a ‘strong belief that her opinion is right’ and declines the treatment. She has been referred to a vascular surgeon but has refused to go.

[12]   [TZC], the applicant, is a registered nurse at [the aged care facility]. She told the Tribunal that she is very concerned about [KGK]’s clinical health and agrees that [KGK] has no memory or cognitive impairment. An urgent referral for a mental health assessment by a psychiatrist has been made to the [mental health service] at [a public hospital] who have agreed to assess [KGK], but no appointment time has been provided yet.

[13]   [Ms W], a nurse educator at [the aged care facility], gave evidence that [KGK]’s wounds are seen by a nurse most days to change her dressings because her leg ulcers are ‘oozing so much’. The ulcers are getting bigger rather than smaller and [KGK]’s health could deteriorate rapidly. She has enlarged lymph nodes that could become septic at any time.

[14]   We received two reports from [Dr V] of ‘[a medical diagnostic imaging centre]’ completed on 30 May 2023 and 31 May 2023.

[15]   The first of these reports relates to ‘Duplex Ultrasound Deep Veins of Both Legs (DVT). Dr V states that:

There are numerous enlarged lymph nodes in both groins. These have normal morphology though they are of pathologically significant size (greater than 10 mm). They are most likely reactive lymph nodes in view of the changes in both lower legs. There is no evidence of paraaortic lymphadenopathy.

…

SUMMARY: There is no evidence of deep venous thrombosis in either leg.

[16]   The second report relates to ‘Duplex Ultrasound Arteries of Both Legs’ and [Dr V] states that:

SUMMARY: No significant stenosis is demonstrated in the peripheral arterial tress of either leg from the common femoral artery to the proximal calf vessels. The monophasic waveform in each leg would suggest significant distal vessel or small vessel disease in each leg.

[17]   The Tribunal also received a copy of a Paramedic Initiated Referral/Advice from [a paramedic] who attended [KGK] on 20 June 2023 in relation to her ‘persistent bilateral lower leg oedema and cellulitis’. They note that [KGK] has not been compliant with medication and has ‘swelling and weeping ulcers to bilateral lower legs, redness, pain when ambulant…’ and that:

Pt (patient) demonstrates full competency & capacity and is refusing hospital transport against strong advice, due to wanting to see a private Dr she will arrange to meet. NH (nursing home) staff will continue to dress wounds.

[18]   There is a presumption that a person has the capacity to make important life decisions unless there is evidence to the contrary.

[19]   During the hearing [KGK] was articulate and demonstrated a sophisticated understanding of the proceedings. A guardianship order cannot be made and, potentially [KGK]’s wishes overridden, unless the Tribunal is satisfied that she lacks the capacity to make informed decisions about her health care.

[20]   The Tribunal does not, at present, have evidence that [KGK] lacks capacity to make decisions because she has a disability. It was unclear, however, whether [KGK] fully understands the results of the ultrasounds or the consequences of her refusal to accept the treatment recommended. She suggested the ultrasound reports indicate that the wounds on her leg are not as serious as the health professionals believe and that they are ‘exaggerating’.”

12. The Tribunal received reports dated 3 August 2023 and 16 August 2023 from Dr Z, a psychiatrist with a mental health service, who saw KGK on 3 August 2023 at the aged care facility with Ms Y, a social worker on the team. We also received a copy of a ‘Care Plan for bilateral venous ulcers’ dated 10 August 2023 prepared by Ms Y to which KGK is reported to have agreed.

13. Dr Z states in the report dated 3 August 2023 that:

“Her ([KGK]’s) affect was calm and she had a good memory of all the events

…There were no obvious psychotic symptoms or cognitive impairment.

Impression

Somewhat isolated and paranoid divorced women…who has managed well for many years [history of squalor and hoarding at old place but no details known]. She has unusual ideas about her varicose ulcers which may lead to a worsening of condition…

Plan

If she refuses to follow the plan and her condition is considered serious, there may be a place for medical guardianship however it is difficult to enforce.”

14. In the report dated 16 August 2023 Dr Z states that:

“Cognitively her memory seems reasonable, however she seems to have unusual, somewhat paranoid ideas, about several areas in her life [...a bee product good for ulcers, not needing to elevate her legs so sitting in a chair all night, only needing to take what she feels is the correct antibiotic dose, the rash being dormant due to wrong product used many weeks ago]…She goes out all day on some occasions on her legs without resting.

I believe her paranoid personality is significantly affecting the recovery of her ulcers. Her GP feels she is unable to manage her behaviour.”

15. KGK said there are some inaccuracies in the reports of Dr Z. She denied Dr Z’s assertion in the 16 August 2023 report that ‘she wants to take antibiotics according to her own rules’ and said that ‘it’s how my body is ruling me’. KGK told us that she does not take the recommended dose of medication ‘because the side effects were worse than the disease’. She experienced ‘constant diarrhoea’ several times per day, a rash on her skin and a ‘feeling of incredible tiredness’. KGK said she raised the side effects with health professionals but was ignored.

16. KGK told us that the ‘antibiotics were helping a little, but the dose was too much’. She agreed she was resistant to having her dressings changed as often as recommended, preferring to have them changed only when they are leaking, or she thinks it necessary.

17. KGK disputed having paranoid ideas. She said that her ‘son is not the issue here’ and that her comments about a bee product have been taken out of context. She sought to explain this as referring to treatment methods being used in other countries. KGK said that she understands that it is important to elevate her legs but sleeps sitting up with her legs wrapped in paper towel or plastic because of them weeping.

18. KGK was inconsistent in her view as to whether her ulcers have got better or worse. She stated initially that she believes they have got worse over the last three months since she arrived at the aged care facility and Prontosan was ‘poured’ on her wounds. Later in the hearing she said that she ‘doesn’t know if it’s getting better or worse’ and ‘plans to wait and see how it goes over the next couple of days’. KGK refused to discuss the possible outcome if she does not accept recommended treatment, saying: ‘I don’t think that way…I’m told many stories…anything can happen…you can walk the streets and have something drop on you’. She does not think she will need her legs to be amputated.

19. Ms Y told the Tribunal that KGK was unable to tell her how she would ‘problem solve getting medical care urgently’ and that KGK does not appreciate the urgency of her situation.

20. Mr U is the Deputy Director of Care at the aged care facility. He believes that KGK has impaired decision making.

21. After considering the oral and written evidence we determined that KGK is unable to make some important life decisions because of a disability and is a person for whom we could make a guardianship order.

22. We noted the decision of the Appeal Panel of the Administrative Decisions Tribunal (ADT) in OE v OF [2009] NSWADTAP 60, a case in which the ADT found no error of law in the Tribunal’s conclusion that the subject person had a disability based on evidence from a general practitioner that she had been treated for depression. The ADT concluded that:

“While we agree that the evidence from a general practitioner that a client has been or is being treated for depression is not the strongest evidence to found a decision that a person has a disability, the breadth of s 3(2), and in particular the words ‘otherwise disabled’, satisfies us that the evidence of depression meant that it was open to the Tribunal to come to the view that OE had a disability.”

23. We accepted the evidence that KGK does not have memory or cognitive impairment but determined she is ‘otherwise disabled’. We placed significant weight on Dr Z’s evidence that KGK has a ‘paranoid personality (that is) significantly affecting the recovery of her ulcers’ and that she ‘seems to have unusual, somewhat paranoid ideas, about several areas in her life’. As the Appeal Panel of the ADT concluded, s 3(2) of the Act is broad and we determined that KGK is disabled by her paranoid personality and ideas.

24. We also determined that the second part of the test in s 3(2) of the Act, (that by virtue of a disability the person is restricted in one or more major life activities to such an extent that he or she requires supervision or social habilitation) is satisfied. KGK requires assistance with the treatment of her ulcers, without which she is at risk of requiring amputation of her legs and/or potentially death.

25. There is no evidence that KGK declines recommended treatment because of religious or spiritual beliefs, and she provided no rational framework for her refusal to comply fully, consistently denying the seriousness of her ulcers. She does not acknowledge the importance of accepting the recommended treatment to prevent serious health outcomes. KGK refuted assertions that she has declined Western Medicine, but only engages with it on an ad hoc basis in accordance with how her ‘body rules her’. This is not a logical, sensible approach to the management of her ulcers. There is uncontroverted evidence that because of her unusual views KGK is not able to manage the treatment of her ulcers and requires supervision.

Should the Tribunal make a guardianship order and what order should be made?

26. The Tribunal must consider all of the following matters set out in s 14(2) of the Act before exercising its discretion to make 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 relation/ships;

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.

27. 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 Act. When undertaking this task, the Tribunal may be guided by the principles that are set out in s 4 of the Act (see IF v IG [2004] NSWADTAP 3).

28. Ms Y told the Tribunal that she has met with KGK several times and saw her with Dr Z. They worked hard to come up with a care plan that would work, and written additions were made to it at KGK’s request as shown on the copy provided to the Tribunal. The team remain concerned, however, about KGK’s legs. The issue with KGK not elevating her legs enough is a ‘vicious cycle’ because if they are properly elevated KGK complains that the leakage is problematic. If she does not elevate them, they will not heal.

29. Ms Y has been assisting KGK with issues such as a change of antibiotic in case her rash was due to an adverse drug reaction, although the doctors in the emergency department considered it more likely to be cellulitis. Swabs have been taken to resolve the issue. KGK is still taking an inadequate dose of antibiotics and another one may need to be added. She requires an urgent reassessment of her leg and has agreed to go to the emergency department with Ms Y after the hearing. Ms Y saw KGK’s legs when she went with her to the wound clinic on 12 September 2023 and is concerned because one leg has developed an odour and her toes are mottled. Ms Y noted that KGK has complied with the care plan only ‘partially’.

27. Mr U said that the team at the aged care facility are trying to provide the best possible care to KGK, to whom they have a duty of care. He has witnessed her refusing to have her dressing changed when recommended and she will not provide the details of her general practitioner, preventing them from liaising with them. Mr U advocated for the making of a guardianship order, stating that it would be helpful for them to be able to talk to the Public Guardian about issues such as whether KGK needs a higher level of care (such as hospitalisation) or what to do if she does not take the recommended dose of antibiotics.

28. Ms W is a nurse educator at the aged care facility who told us that in order for KGK’s legs to heal she needs urgent medical attention because staff are ‘seeing deterioration on a daily basis’. Staff are worried because of noticeable changes over the past few days, and she believes that KGK requires a hospital admission for assertive treatment. Ms W also told us that the general practitioner at the aged care facility has refused to see KGK again.

29. We considered KGK’s view that she does not need assistance and does not believe that her ulcers will continue to deteriorate unless she complies with the recommended treatment.

30. KGK does not have a spouse or carer and has no family relationships, or particular cultural or linguistic relationships, that need to be preserved.

31. We determined that KGK is ‘a person in need of a guardian’ in accordance with s 3(1) of the Act because she is partially incapable of managing her person because of a disability.

32. We made a guardianship order with the functions of accommodation (including ‘authorise others’); health care; services; and consents to medical and dental treatment. With the consent of the Public Guardian, the guardian is provided with authority to override KGK’s objections to treatment pursuant to s 46A of the Act.

33. We accepted the evidence of the health professionals that it is not practicable for services to be provided to KGK without a guardianship order.

34. The accommodation and ‘authorise others’ functions will enable the guardian to decide if KGK needs to be hospitalised or placed in alternative accommodation for treatment and, if necessary, for those decisions to be enforced by the NSW Police or Ambulance Service.

35. A services function is included so that decisions can be made about the services KGK may need to assist her recovery and a health care function will enable the guardian to liaise with the health professionals involved in her care. The guardian is authorised to override KGK’s objections to medical treatment to assist in ensuring her compliance with the recommendations of her treating team.

Who should be the guardian?

39. The Tribunal is not able to appoint the Public Guardian as a person’s guardian if there is a private person who can be appointed: the Act, s 15(3).

40. As there is no private person available to be appointed as guardian, the Tribunal appointed the Public Guardian.

How long should the order last?

41. An initial guardianship order can be made for a period of up to one year from the date on which it was made.

42. We made an order for 12 months because it is likely to take some time for KGK’s leg ulcers to heal.

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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 October 2023