KZU

[2018] NSWCATGD 25

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

KZU [2018] NSWCATGD 25

Hearing dates:

6 August 2018

Date of orders:

06 August 2018

Decision date:

06 August 2018

Jurisdiction:

Guardianship Division

Before:

A Britton, Principal Member
S A McSwiggan, Senior Member (Professional)
S Fogg, General Member (Community)

Decision:

1. A guardianship order is made for KZU.

 

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

 

3. This is a continuing guardianship order for a period of 12 months from 6 August 2018.

 

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

 

FUNCTIONS:

 

5. The guardian has the following functions:

 

a) Accommodation

 

To decide where KZU may reside.

 

b) Health care

 

To decide what health care KZU may receive.

 

c) Medical/Dental consent

 

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

 

d) Services

 

To make decisions about services to be provided to KZU.

 

CONDITION:

 

6. The condition of this order is:

 

a) Standard Condition

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

Catchwords:

GUARDIANSHIP – application for a guardianship order – consideration of views of subject person – guardianship order made – appointment of private guardian

 

EVIDENCE – assessment of medical evidence

  WORDS AND PHRASES – “social habilitation”

Legislation Cited:

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

Cases Cited:

P v NSW Trustee and Guardian [2015] NSWSC 579

Texts Cited:

Nil

Category:

Principal judgment

Parties:

001: Guardianship Application

  KZU (the person)
Ms LBC (applicant)
Ms FDU (carer)
Public Guardian

Representation:

Nil

File Number(s):

NCAT 2018/00220831

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

1. KZU is currently an in-patient of a public hospital. He was admitted about four weeks ago as a result of complications relating to poorly-controlled diabetes. Since July 2017, Mr KZU has been admitted to the public hospital on 16 occasions. He is reported to have an intellectual disability.

2. Prior to the current admission Mr KZU was living with his elderly mother who has been diagnosed with dementia. Mr KZU has never lived independently and has always resided with his mother.

3. Hospital social worker Ms LBC made an application to the NSW Civil and Administrative Tribunal (NCAT) seeking a guardianship order in respect of Mr KZU (the Application). In the Application, under the heading “Why are you asking for a guardian to be appointed?”, Ms LBC wrote:

[Mr KZU]’s sister [Ms FDU] has in the past and continues to attempted to assist [Mr KZU] with doctors appointment and food preparation but has reported [Mr KZU] refuses to allow her to assist him often becoming agitated and verbally aggressive…He does not attend to his insulin and his diabetes is poorly controlled. [Mr KZU] lacks insight into his care needs, he continues to refuse to take appropriate medications, allow the community nurse to attend to his dressings and comply with his diabetes.

Background to the application

4. As noted, Mr KZU was admitted to hospital on numerous occasions over the past 12 months. The history to these admissions reveals that Mr KZU often failed to comply with treatment recommendations made in relation to his diabetes. As a consequence, he now has a number of associated health problems, including leg ulcers.

5. In a report dated 17 July 2018, registered nurse Ms Z wrote that Mr KZU had been under the care of community nurses for treatment of leg ulcers since May 2018. She wrote that during his current admission to the public hospital, numerous health problems were identified, including uncontrolled insulin-dependent diabetes. She wrote that Mr KZU apparently does not attend GP appointments and does not monitor his blood glucose levels.

6. In addition, Ms Z wrote that Mr KZU’s elderly mother shows signs of “carer’s stress” and an inability to cope with her son’s increasingly complex health problems. In her opinion, he needs community nursing intervention three times a week to prevent further deterioration of his leg ulcers. She wrote that on numerous occasions, Mr KZU has not been at home when community nurses attended for scheduled appointments. In her opinion, his multiple health problems, together with the history of treatment non-compliance, indicate that his chronic health needs can no longer be adequately dealt with in the community.

Can a guardianship order be made?

7. The power to make a guardianship order can only be made if we are satisfied that Mr KZU is a “person in need of a guardian”: s 14(1) of the Guardianship Act 1987 (NSW) (the Act). 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”: s 3(1) of the Act. A person with a disability is defined to include a person who is physically and/or psychologically disabled, and/or of advanced age, 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: s 3(2) of the Act.

8. The term “social habilitation” is not defined by the Act. In P v NSW Trustee and Guardian [2015] NSWSC 579, Lindsay J considered its meaning in the context of s 3(2) of the Act, at [303]:

The expression “social habilitation” (in the context of references to “disability”, “restricted”, “major life activities” and the word “requires”) may be taken to refer to a need for services to help a person to be, or become, able to function normally in community with others.

9. Reports prepared by members of the Hospital’s nursing, occupational therapy and social work teams tendered in these proceedings state that Mr KZU has a “developmental delay disability”. The basis for that opinion is unclear. It would appear that it is based on an historical opinion contained in hospital records.

10. The only medical evidence to support the proposition that Mr KZU has some form of intellectual disability is a pro forma “health professional report form” prepared by medical practitioner, consultant physician and geriatrician, Dr Y. Dr Y states that Mr KZU has an intellectual disability, which he characterised as “moderate and static”. He writes “no formal diagnosis. Since childhood.” The basis for this assumption is not disclosed.

11. In the absence of a clear basis for the diagnosis of an intellectual disability, we considered the totality of the evidence. Mr KZU attended a public high school. He did not complete secondary school. He is unsure of his age when he left school. Since leaving school he held a succession of unskilled casual jobs. Neither he nor his sisters, Ms FDU and Ms NXU, could recall when he last worked. It appears to have been some years ago.

12. Ms NXU stated that a family doctor diagnosed her brother as “retarded” when he was quite young. As she recalls, he had been on an invalid pension since he was 17 years of age. She and her sister, Ms FDU, were unsure when her brother was diagnosed as having an intellectual disability but they each understood it was some years ago. Each claimed that their brother was very dependent on their mother.

13. We think it more likely than not that Mr KZU has some form of intellectual disability. On the available evidence, it is not possible to make any reliable finding about the severity of that disability. The history given by his sisters which was largely corroborated by Mr KZU is consistent with the opinion of Dr Y. While not conclusive, Mr KZU’s lack of insight into the severity of his multiple physical conditions is not inconsistent with a finding that he has an intellectual disability.

14. We find that Mr KZU probably has an intellectual disability.

15. A finding that Mr KZU is a person “who has a disability” for the purpose of the Act requires that we be satisfied that he is “intellectually disabled” and, in addition, “by virtue of that fact, restricted in one or more major life activities to such an extent that he requires supervision or social habilitation”. The evidence makes plain that Mr KZU is now restricted in a number of major life activities, including many of the activities of daily living. In the last couple of years he has required significant support to assist him in those activities. We are satisfied that by virtue of his intellectual disability he is now restricted in at least one major life activity to such an extent that he now requires supervision or significant community support. Therefore he is “a person who has a disability” for the purpose of the Act.

16. We are satisfied that as a consequence of his disability, Mr KZU is now at least partially incapable of managing his person. Mr KZU, therefore, is a “person in need of a guardian” and the power to make a guardianship order can be exercised.

Should a guardianship order be made?

17. In considering whether or not to make a guardianship order, we must take into account the matters listed in s 14(2) of the Act, relevantly the views of Mr KZU, the views of his carer, the importance of preserving Mr KZU’s existing family relationships, the importance of preserving Mr KZU’s particular cultural and linguistic environments and the practicability of services being provided to Mr KZU without the need for the making of a guardianship order.

The views of Mr KZU

18. In these proceedings Mr KZU stated that in his opinion, he did not need a substitute decision-maker. That stated view is broadly consistent with the pre-hearing report prepared by a registry officer, which recorded Mr KZU as saying that he “did not think he needed a guardian at this stage but might consider having a guardian appointed at some future date”.

19. The available evidence is that Mr KZU holds the opinion that he does not need a guardian.

The views of Mr KZU’s mother

20. Mr KZU’s mother was unable to attend the hearing. She is elderly and is reported to have dementia. Her daughters report that she supports the making of a guardianship order in respect of her son.

The importance of preserving Mr KZU’s existing family relationships

21. The available evidence suggests that the relationship between Mr KZU, his mother and sisters while close, is under strain, primarily because of Mr KZU’s reluctance to comply with treatment recommendations relating to his diabetes. There are reports of Mr KZU being aggressive towards his sisters and possibly his mother.

22. In our view, this factor favours the making of a guardianship order. The relationship between Mr KZU and his immediate family is important to him and to other members of his family. It could not be said that that relationship will only be preserved if a guardianship order is made. Nonetheless, the making of a guardianship order may reduce the tension between Mr KZU and his sisters over his ongoing failure to comply with treatment recommendations.

The importance of preserving Mr KZU’s particular cultural and linguistic environments

23. On the available material, we think it unlikely that making or not making a guardianship order would materially affect Mr KZU’s cultural and linguistic environments.

The practicalities of services being provided to Mr KZU without the need for the making of such an order

24. The trigger for the Application was Mr KZU’s multiple hospital admissions over the past 18 months. These were the result of Mr KZU’s failure to comply with treatment recommendations made by his treating practitioners. His health is deteriorating and there is a real risk that it will deteriorate further as a result of diabetes-related complications. On the available material, it seems that it would be impractical for Mr KZU to receive the services he requires to assist him to live within the community, without a guardianship order being made.

Findings and conclusions

25. In deciding whether to exercise the power to make, or not to make, a guardianship order we must take into account the factors listed in s 14(2) of the Act together with the statement of principles contained in s 4 of that Act. This requires us to balance a number of competing considerations. On the one hand, we must observe the principle that Mr KZU must be protected from neglect, abuse, and exploitation. On the other hand, we must restrict his freedom of decision making and action as little as possible and encourage him, as far as possible, to live a normal life in the community. At all times, the paramount consideration is Mr KZU’s welfare and interests.

26. The available evidence favours the making of a guardianship order. Mr KZU has received significant support from family members in recent years. For a number of reasons, including his deteriorating health and his inability or refusal to comply with treatment recommendations, there is a real and material risk that his health will deteriorate further unless a guardianship order is made. While Mr KZU’s opposition to a guardianship order weighs against the making or an order, in our view in the current circumstances, it is nonetheless appropriate and necessary.

Who should be appointed as Mr KZU’s guardian?

27. Section 17 of the Act states:

17 Guardians

(1)   A person shall not be appointed as the guardian of a person under guardianship unless the Tribunal is satisfied that:

(a)   the personality of the proposed guardian is generally compatible with that of the person under guardianship,

(b)   there is no undue conflict between the interests (particularly, the financial interests) of the proposed guardian and those of the person under guardianship, and

(c)   the proposed guardian is both willing and able to exercise the functions conferred or imposed by the proposed guardianship order.

(2)   Subsection (1) does not apply to the appointment of the Public Guardian as the guardian of a person under guardianship.

(3)   If, at the expiration of the period for which a temporary guardianship order has effect, the Tribunal is satisfied:

(a)    that it is appropriate that a further guardianship order should be made with respect to the person under guardianship, and

(b)   that there is no other person who it is satisfied is appropriate to be the person’s guardian,

The Tribunal may, in accordance with this Division, make a continuing guardianship order appointing the Public Guardian as the guardian of the person.

(4)   The Public Guardian shall be appointed as the guardian of a person the subject of a temporary guardianship order.

28. The Public Guardian cannot be appointed as guardian for Mr KZU in circumstances where an order can be made appointing some other person as guardian for Mr KZU: s 15(3) of the Act. In the initiating Application, Ms LBC proposed the Public Guardian as Mr KZU’s guardian. Ms NXU stated that she was not in a position to take on the role of guardian because she had the responsibility of caring for her mother. Ms FDU initially expressed reluctance to take on the role, stating that she did not want to have to feel guilty if a decision needed to be made to place Mr KZU in “a home”. After discussion and clarification of the role of a guardian, Ms FDU indicated she was prepared to undertake the role.

29. We are satisfied that her stated willingness to accept the appointment was genuine and properly considered. In addition, we are satisfied that Ms FDU is able to undertake the role and capable of making decisions on behalf of her brother. Importantly, we are satisfied that she is prepared to make decisions that were opposed by her bother but in her opinion were in his brother’s best interests.

30. Mr KZU indicated that if a substitute decision maker had to be appointed, he would “like his sister, Ms FDU, to undertake the role”.

31. Being satisfied that Ms FDU was able and willing to undertake the role of her brother’s guardian, had a personality generally compatible with her brother and that there was no undue conflict between her interests and those of her brother, we decided to appoint her as Mr KZU’s guardian.

What functions should the guardian be given?

32. In the foreseeable future, decisions in relation to accommodation, services, health care, and medical and dental treatment are likely to be needed to be made on behalf of Mr KZU. For these reasons we have decided to confer these functions on Ms FDU.

33. In addition, we have decided to confer a coercive function, as sought by the social worker applicant. We do so on the basis of the evidence of Mr KZU’s history of discharging himself from hospital against medical advice.

34. In addition we have decided to make the order for a period of 12 months.

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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: 21 December 2018