KPC

[2022] NSWCATGD 20

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

KPC [2022] NSWCATGD 20

Hearing dates:

27 August 2022

Date of orders:

27 August 2022

Decision date:

27 August 2022

Jurisdiction:

Guardianship Division

Before:

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

Decision:

1. A guardianship order is made for KPC.

2. LZC, of [Address removed for publication.], is appointed as the guardian.

3. This is a continuing guardianship order for a period of three months from 27 August 2022.

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

FUNCTIONS:

5. The guardian has the following functions:

a) Accommodation

To decide where KPC may reside.

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

i) take KPC 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 KPC may receive.

d) Medical/Dental consent

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

e) Services

To make decisions about services to be provided to KPC.

f) Restrictive Practices

To give or withhold consent as to whether the following restrictive practices should be used to influence KPC’s behaviour:

Chemical restraint

CONDITIONS:

6. The conditions of this order are:

a) Standard Condition

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

b) Restrictive Practices Condition

The guardian may only consent to the use of the types of restrictive practices permitted under this order to influence KPC’s behaviour:

(i) as a last resort to prevent KPC harming himself or others;

(ii) where the restrictive practice is used in the least restrictive form, and for the shortest time necessary to prevent harm to KPC or other persons;

(iii) after consideration of the likely impact of the restrictive practice on KPC; and

(iv) in accordance with a behaviour management plan devised by the hospital treating team which is reviewed regularly and as soon as practicable after any change in KPC’s circumstances.

Catchwords:

GUARDIANSHIP – application for a guardianship order – after hours hearing – subject person an in-patient at a public hospital – drug-related admission – veteran with post-traumatic stress disorder – urgent hearing requested as subject person at risk of absconding – subject person with impaired decision-making capacity – need for medical and dental consent decisions – need for healthcare decisions – need for others to bring accommodation decisions into effect – restrictive practices decisions – chemical restraint – suitability of proposed guardian – private guardian appointed – order made.

Legislation Cited:

Guardianship Act 1987 (NSW), ss 3(1)–(2), 4, 14(1)–(2), 15(3), 17

Cases Cited:

C S and M Y v the Guardianship Tribunal and the Public Guardian (Supreme Court (NSW), Windeyer J, 29 November 1999, unrep)

Re B [2011] NSWSC 1075

Texts Cited:

None cited.

Category:

Principal judgment

Parties:

001: Guardianship Application

KPC (the person)
EGP (applicant)
Public Guardian

Representation:

Nil.

File Number(s):

NCAT 2022/00256458

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

What the Tribunal decided

1. The Tribunal made a guardianship order appointing LZC as guardian for his son, KPC, as set out above.

Background

2. KPC is a 35-year-old special operations veteran who is an inpatient in a public hospital. Pre-admission he lived in a unit in south-eastern Sydney. It is reported that KPC, who has a reported background of post-traumatic stress disorder (PTSD), has had three drug-related hospital admissions since May 2022. He was last admitted to hospital on 17 August 2022 after what was understood to be a polypharmacy overdose (involving substances including GHB, cocaine and amphetamines) and a likely long lie. He is said to have fluctuating delirium secondary to sepsis and organ failure.

3. It is reported that KPC has a former partner and a child who no longer lives with either parent and that he has had a recent girlfriend, Ms Z. His father, LZC, lives in Victoria.

4. On 27 August 2022 EGP, a member of the treating team at the public hospital, contacted the Tribunal after hours service seeking an urgent guardianship order in relation to KPC.

The Hearing

5. The Tribunal conducted an after-hours hearing. At the end of these Reasons for Decision is a list of the participants in the hearing. [Appendix removed for publication.]

6. KPC did not participate in the hearing. EGP told us that KPC was agitated and aggressive. He had been attempting to abscond from the hospital and on the day of the hearing had reached the hospital car park before being returned to the ward. He is suffering from fluctuating delirium and in EGP’s opinion has impaired decision-making capacity. As discussed further below, EGP was of the view that KPC lacks insight into his impaired decision-making capacity as well as in relation to the severity of his illness and his need for treatment. He has become increasingly agitated by contact with people to whom he has not wanted to speak. EGP considered that KPC would be unable to make a meaningful contribution to the hearing and was concerned that he would be likely to be further provoked and agitated by participation.

7. LZC, KPC’s father, agreed with EGP’s assessment having regard to KPC’s present condition and state of mind, referring to what he described as an ‘unusual’ argument with KPC that day.

8. We accepted that KPC would be unable to express meaningful views on the matters we needed to consider and that his participation would be contrary to his welfare. At the same time, we recognised the urgency of the hearing and decided that it was in his interests that we should proceed in his absence.

9. LZC told us that he and KPC’s mother had separated some thirty years ago, but that she supported his involvement with KPC. He expressed concern about reported drug use by KPC’s recent girlfriend, Ms Z, whose surname he did not know. EGP did not have contact details for Ms Z and told us that hospital staff had not reported any in-person contact with Ms Z (although it was acknowledged that she could have been in telephone contact with KPC). There was no suggestion that Ms Z has been actively involved in KPC’s care in hospital. KPC’s father is listed by the hospital as his next of kin. KPC was brought to hospital by ambulance after a welfare check precipitated by concerned neighbours.

10. Given these matters and the lack of information as to the existence and nature of any ongoing relationship between KPC and Ms Z we also considered it in KPC’s interests to proceed with the hearing rather than to adjourn to endeavour to locate Ms Z and determine whether she should be a party to the proceedings.

11. However we had regard to these circumstances, in particular the fact that KPC has not had an opportunity to express his views, in determining the length of the order we made for the reasons that follow.

What did the Tribunal have to decide?

12. 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 the interests and welfare of KPC are paramount.

GUARDIANSHIP

13. The questions to be considered by the Tribunal are:

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

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

15. A person in need of a guardian is “a person who because of a disability is totally or partially incapable of managing their person”: s 3(1) of the Act. 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.

16. EGP told us that this was KPC’s third drug related POW admission since May 2022. After an admission after a 22 July 2022 overdose his latest admission was on 17 August 2022. She explained that on the most recent occasion KPC had been found unconscious in his unit. He was assessed as having had a polypharmacy overdose on drugs which included GHB, cocaine and amphetamines. He likely had a long lie which had resulted in destruction of muscles and organ failure. He is now on dialysis and is also said to have damage to his liver. He has an abscess on his buttock and has developed sepsis.

17. KPC is receiving active medical treatment, including for his sepsis, end organ damage and withdrawal from multiple substances.

18. EGP told us that KPC was reported to have a history of PTSD. He had been assessed by the psychiatry team, but the team was not of the view that he should be scheduled. The psychiatrists were of the view that while KPC has a history of PTSD, his primary problem was pharmacological rather than psychiatric. He is not presently on antipsychotics or mood stabilisers. However KPC has recently expressed some suicidal ideation and the medical team is concerned about his possible intention. He will be further assessed.

19. In the opinion of EGP, KPC has impaired decision-making capacity for important personal and lifestyle matters. He lacks insight into his impaired decision-making capacity and also into the severity of his illness, his need for treatment and the consequences of ceasing treatment. EGP noted that while KPC had been attempting to leave hospital and thought that he did not need any medical treatment, he now has no residence to go to and requires ongoing active treatment. EGP was of the view that KPC does not understand the risk that leaving hospital poses for him. She said she had explained these risks, but KPC was unable to reflect back or to demonstrate his understanding of the consequences of not treating his illnesses. He was said to lack an appreciation of his very high risk of morbidity and even mortality should he leave hospital as he wishes to do.

20. According to EGP, KPC also has an altered perception of his current circumstances, although he has fluctuating delirium rather than a fixed delusional belief.

21. LZC agreed that KPC has impaired decision-making capacity and was a person for whom the Tribunal could make a guardianship order.

22. We were satisfied that KPC has a disability, being a combination of medical conditions and fluctuating delirium secondary to sepsis and organ failure, 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?

23. When considering making an order, we must have regard to KPC’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).

24. We must consider each of these matters, in no particular order. 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.

25. We did not have the benefit of evidence from KPC. His father, LZC, was firmly of the view that it would be of benefit to his son have a substitute decision-maker to make decisions in relation to where he should live, medical and dental consents and health care. He felt that these were areas in which there was an imminent need for decisions in KPC’s interests and consistent with his welfare.

26. LZC also raised the issue of whether an access function would be appropriate. This was in circumstances where he had been told that Ms Z had reportedly taken drugs into hospital for KPC during an earlier admission and was concerned about her reported role in connection with KPC’s drug use. He had no first-hand knowledge in this respect. It appeared that the source of this suggestion was not hospital staff.

27. EGP told the Tribunal that although KPC had claimed that Ms Z had said that she had not been allowed to visit him in the hospital, there was no evidence of any contact between hospital staff and Ms Z during the present admission. On the limited evidence before us we were not satisfied that an access function was warranted as in KPC’s interests.

28. EGP explained that the urgent application had been prompted by KPC’s most recent (and partially successful) attempt to leave hospital. Despite his serious medical conditions, he was said to be strong and physically aggressive. She saw an immediate need for the appointment of a guardian with an accommodation function and the power to authorise others (such as ambulance officers or police) to effect, maintain and restore any accommodation decision. She was clear that it was in KPC’s interests to remain in hospital and to continue to receive treatment, including management of his renal failure and withdrawal from multiple substances (including ketamine, cocaine, ice and GHB as well as alcohol). EGP pointed out that KPC was at risk of withdrawal seizures. She described his medication, including intravenous antibiotics for kidney failure. We were satisfied that it would be in KPC’s interests for a guardian to be appointed with accommodation and authorise others functions.

29. EGP also supported conferral of a healthcare function on a guardian to ensure oversight of KPC’s complex medical conditions and for the guardian to have authority to consent to medical and dental treatment for KPC given that while affected by delirium he is incapable of giving informed consent.

30. In addition, EGP foreshadowed that while KPC would be entitled to benefits through the Department of Veterans Affairs he lacks a linear way to plan and implement access to such services. He would be assisted by a guardian with a services function to organise and consent to needed services.

31. While there may be people who would fall within the statutory hierarchy of ‘persons responsible’ able to consent to medical treatment for KPC if he were unable to give his own consent, we accepted that in the interests of clarity and consistency an appointed guardian should have this function and also the health care function to oversee and coordinate his complex health care needs. We also accepted the suggestion of EGP that it would be beneficial for KPC if a guardian had the responsibility for services decisions to ensure that he receives needed services both now and when he leaves hospital.

32. We discussed at the hearing whether there was any need for a guardian to have authority to override KPC’s objections to medical treatment. EGP was of the view that there was no need for this function at present. KPC is presently accepting all charted medication (although on the day of the hearing he had wanted to leave hospital without any medication). She and LZC understood that if circumstances changed, review and a variation of the order could be sought.

33. However EGP suggested that it would be appropriate to confer on a guardian a function of consenting or withholding consent to the use of chemical restrictive practices to manage KPC’s behaviour. While the hospital has not yet had to resort to medication to manage KPC’s behaviour, he has had several Code Blacks and is making increasing attempts to leave hospital. EGP noted that KPC had tried to attack a hospital security guard and had made threats of harm to others on the day of the hearing. She was concerned that it was reasonably likely that his behaviour could escalate and could then not be managed conservatively.

34. Despite his serious medical conditions and history of drug use, KPC is strong, aggressive and mobile. The health professionals are concerned that he is a physical threat to himself and to others. We accepted that, given KPC’s special operations training, and experience combined with his lack of insight and his aggression, he very likely has the capacity to use force against others in a skilled way if his aggression escalates or he more insistently engages in exit seeking behaviour.

35. EGP told us that any use of chemical restraints would be in accordance with a behaviour management plan drawn up in consultation with psychiatry and that chemical restraints would only be used as a last resort.

36. While this is not a case in which there is any overlap with the regulation of the use of restrictive practices by National Disability Insurance Scheme-funded support workers or in a residential aged care facility, we accepted that given KPC’s past training and history, his recent actions and behaviour, the threats to himself and to others, and his impaired capacity for rational decision-making, it would be in his interests for a guardian to have the power to consent (or to withhold consent) to the use of chemical restraints to manage his behaviour. Any use of such chemical restraint would have to be in accordance with a behaviour management plan and as a last resort. We were satisfied that this was clearly appreciated by EGP.

37. There was no evidence that making a guardianship order of the nature proposed would have any adverse effect on KPC’s existing family relationships. We were satisfied that his father LZC would maintain their relationship and accepted LZC’s evidence that KPC’s mother was also supportive of a guardianship order. There was no evidence of any cultural or linguistic environment that could be affected.

38. However, given KPC’s diagnoses, his lack of insight into his condition and need for medical treatment, his impaired decision-making capacity and his recent behaviour, we were of the view that it would not be practicable for him to receive needed services in the absence of a formal order.

39. We decided that we should appoint a guardian to make accommodation, authorise others, health care, medical and dental consent, services, and restrictive practices decisions.

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

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

41. The Supreme Court has held that:

“the proper meaning to be given to [section 15(3)] is to read it as saying that the Public Guardian should not be appointed in circumstances in which an order can properly be made in favour of another person. That requires not only that the person be willing, reliable and responsible, but that the appointment will result in the policy considerations and principles set forth in the Act being given effect (W v G [2003] NSWSC 1170, [25]).”

42. In deciding whether a person is able to undertake the role of guardian, we must consider whether they are able to exercise the functions in accordance with the principles in s 4 of the Act: C S and M Y v the Guardianship Tribunal and the Public Guardian (Supreme Court (NSW), Windeyer J, 29 November 1999, unrep) and Re B [2011] NSWSC 1075 at [66].

43. We must also be satisfied that any proposed private guardian has a personality that is generally compatible with that of KPC, has no undue conflict of interest and is willing and able to exercise the functions of the proposed order: the Act, s 17.

44. EGP proposed the appointment of LZC as guardian for his son KPC. She saw him as a suitable person and understood that he was willing to take on the responsibility of guardianship.

45. LZC participated in the hearing. He spoke of his relationship with KPC (saying that they had been ‘best mates’ and that he had supported him through the military and his involvement with special forces). He acknowledged that recently there had been relationship issues. He saw these as related to KPC’s increasing and troubling drug use. However he demonstrated a clear love and concern for his son’s welfare. He told us that he was quite prepared to make hard decisions if they were in KPC’s interests and suggested that he could make decisions based on pragmatism rather than emotion.

46. We raised with LZC the question of whether it would be preferable and in the interests of the father/son relationship for an impartial third party to take on the role of guardian. However he felt strongly that if KPC found out that his father had ‘relinquished’ the opportunity to be his guardian he would see this as a weakness.

47. EGP agreed with this assessment, observing that KPC saw a failure to stick to a decision (such as, in his case, the decision to abscond) as a weakness. KPC was said to see the ability to make and stick to a decision as a strength. EGP was of the view that KPC would see his father as an appropriate person to take on the role of guardian. LZC told us that KPC’s mother, to whom he had recently spoken, was also of this view.

48. LZC told us that while he has an engineering business, he has the time for decision making for KPC, particularly at this critical time.

49. We were satisfied that LZC’s personality is generally compatible with that of KPC, that there is no conflict of interest, and that LZC is willing and able to exercise the functions of the proposed order in accordance with the principles in s 4 of the Act. We decided that he should be appointed.

50. We decided to make an order for three months. EGP agreed that this was an appropriate period having regard to KPC’s capacity issues and need for treatment and decision making. The Tribunal will review the need for a guardian, or whether all of the relevant functions are needed, at the expiration of the order.

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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