KML

[2016] NSWCATGD 8

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	KML [2016] NSWCATGD 8
Hearing dates:	24 March 2016
Date of orders:	24 March 2016
Decision date:	24 March 2016
Jurisdiction:	Guardianship Division
Before:	J Simpson, Senior Member (Legal) P Williams, Senior Member (Professional) K Laurence, General Member (Community)
Decision:	Guardianship order made for one year; Public Guardian appointed with the authority to make decisions about health and medical issues and access to the community, including the power to restrict that access. Recommendations made to the Guardian.
Catchwords:	GUARDIANSHIP – application for a guardianship order – where there was a previous order in place which lapsed – need for an order – guardianship order made
Category:	Principal judgment
Parties:	Mr KML (subject person) Ms KHG (applicant) The NSW Public Guardian
Representation:	Nil
File Number(s):	55062
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 (s 65, Civil and Administrative Tribunal Act 2013 (NSW)).

REASONS FOR DECISION

What the Tribunal decided

1. The Tribunal appointed the Public Guardian for one year to make decisions about health and medical issues and Mr KML’s access to the community including the power to restrict that access.

2. The Tribunal recommends that the Public Guardian urgently pursue the healthcare and community access issues outlined in these reasons for decision.

Background

3. Mr KML is an 85-year-old man who lives at an aged care facility at Inner West Sydney. He has dementia and no involved family.

4. In early 2014, there was a major issue to be resolved about Mr KML’s accommodation, in particular whether he needed to be in an aged care facility rather than his home in southwest Sydney. The Tribunal appointed the Public Guardian to deal with this and related health and services issues. The Tribunal also appointed the NSW Trustee and Guardian as Mr KML’s financial manager.

5. In February 2015, the Tribunal reviewed the guardianship order. By decision of the Public Guardian, Mr KML was now living permanently in a secure section of the current aged care facility. He had not asked to leave and was not attempting to abscond. The Tribunal accepted that the guardianship order should lapse.

6. Now, Ms KHG, facility manager applied for a further guardianship order.

What did the Tribunal have to decide?

7. The Tribunal had to decide:

1. Does Mr KML have a disability which prevents him from being able to make some important life decisions?

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

3. Who should be the guardian?

4. How long should the order last?

Does Mr KML have a disability which prevents him from being able to make some important life decisions?

8. Dr Z, general practitioner, reported that Mr KML has dementia and persecutory delusions and was unable to understand his medical needs and make decisions about them. Dr Y, geriatrician, reported that Mr KML scored 20/30 on a mini mental state examination and showed limited insight into his current health conditions. He had progressive dementia. The Tribunal accepted that Mr KML has dementia preventing him from being able to make important life decisions.

Should the Tribunal make a guardianship order?

9. The applicant wrote that Mr KML was verbally and physically aggressive and repeatedly was asking to leave the facility and return to his former apartment. The local Dementia Behaviour Management Assessment Service was unwilling to assist due to the lack of informed consent.

10. Dr Y reported on very important health decisions that were needed in relation to whether Mr KML should have a permanent pacemaker and the interplay between his cardiac condition and the feasibility of prescribing antipsychotic medication. A careful decision was needed about the potential risks of this medication as against the risks and distress associated with Mr KML’s behavioural symptoms.

11. In the hearing, Mr KML complained about not being allowed to go out from the facility. Ms KHG said that Mr KML is not allowed out except in the bus because of the risk of him absconding and getting lost. If one-to-one staffing could be provided, outings may be feasible and Mr KML would enjoy those.

12. Mr KML has considerable assets managed by the NSW Trustee and Guardian and which could be used to pay for appropriate services such as a worker to take Mr KML on outings.

13. The Public Guardian’s representative submitted that guardianship was only needed in relation to health and medical decisions. She said that Mr KML’s accommodation has previously been resolved by decision of the Public Guardian and that issues around paid outings could be sorted out between the facility and the NSW Trustee and Guardian.

14. The Tribunal was clear that it should make a guardianship order firstly to allow the health decisions identified by Dr Y urgently to be addressed. The healthcare function would also allow the guardian to consent if necessary for the dementia behaviour management service.

15. The Tribunal was also clear that guardianship was needed in relation to decisions about Mr KML’s access to the community including restrictions on his access. Mr KML has expressed clear opposition to being confined to living at the facility and not being able to go out freely. While a decision about Mr KML’s accommodation has previously been made by the guardian, there is a clear ongoing issue about to what degree Mr KML’s freedom to access the community should be restricted. These are major decisions about restrictions on the freedom of a person who is opposed to being restricted. It is important that the guardian considers the degree of appropriate restriction taking into account the risks and benefits of community access and how risks can be minimised, including by arranging a support worker with the NSW Trustee and Guardian.

16. In the absence of an alternative, the Tribunal appointed the Public Guardian.

17. The guardianship order is for one year and will then be reviewed by the Tribunal.

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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: 12 July 2016