LOS

[2017] NSWCATGD 24

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

LOS [2017] NSWCATGD 24

Hearing dates:

25 September 2017

Date of orders:

25 September 2017

Decision date:

25 September 2017

Jurisdiction:

Guardianship Division

Before:

K A McMahon, Senior Member (Legal)
W E Blaxland, Senior Member (Professional)
D R Sword, General Member (Community)

Decision:

1. A guardianship order is made for Mr LOS.

2. The Public Guardian is appointed as the guardian.

3. This is a continuing guardianship order for a period of 12 months from 25 September 2017.

4. This is a limited guardianship order giving the guardian custody of Mr LOS to the extent necessary to carry out the functions below.

FUNCTIONS:

5. The guardian has the following functions:

a) Travel

To make decisions about whether or not Mr LOS can travel to any place outside Australia.

b) Passport

To make a decision about whether or not Mr LOS applies for a passport.

CONDITIONS:

6. The condition of this order is:

a) Standard Condition

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

Catchwords:

GUARDIANSHIP – application for guardianship order – concerns about the person travelling overseas – risk to himself and others – travel and passport function – Public Guardian appointed

Legislation Cited:

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

Cases Cited:

IF v IG [2004] NSWADTAP 3

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Mr LOS (subject person)
Northern Sydney Local Health District (applicant)
Ms DAC (carer)
The Public Guardian

Representation:

Nil

File Number(s):

NCAT 2010/00439038

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. We appointed the Public Guardian as Mr LOS’s guardian for a period of 12 months to make decisions about whether or not he can travel to any place outside of Australia and about whether he applies for a passport as set out in the Tribunal’s order.

Background

2. Mr LOS is a 46-year-old man of Tibetan heritage. He moved to India as a refugee as a young man. In 2004, whilst in India, Mr LOS suffered a traumatic brain injury in a motor vehicle accident. Mr LOS moved to Australia as a refugee in 2008, initially living in Northern Sydney, then Inner West Sydney and later returning to Northern Sydney.

3. From 2009, Mr LOS has received treatment from mental health services for a psychotic disorder resulting from his brain injury. This arose following Mr LOS spending three months in gaol after he stabbed his niece several times, who was a child and in his care when they arrived in Australia. Since then Mr LOS has had multiple admissions to mental health facilities and has received ongoing treatment from community mental health services. In 2011, he faced charges of assaulting members of the Tibetan community and is reported to experience persecutory delusions.

4. On 31 August 2010, The Tribunal made a financial management order for Mr LOS and his finances have been managed by the NSW Trustee and Guardian since that time.

5. Mr LOS currently lives alone in a public housing unit in Northern Sydney and receives support services through a service provider who visit him for two hours of support six times per week. Mr LOS remains under the care of a service provider for his mental illness and requires medication.

6. Mr LOS is socially isolated in Australia apart from his friend and carer, Ms DAC. He remains in contact by phone with this mother and sister who live in Tibet. His niece does not want to have contact with him.

7. On 6 September 2017, the Tribunal received a guardianship application from the Northern Sydney Local Health District, Mr X, Social Worker, states a guardianship order is needed due an ongoing issue about Mr LOS wanting to travel to India to see the Dalai Lama and concerns about his ability to make decisions about this and his safety if he makes the journey.

The hearing

8. 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.]

What did the Tribunal have to decide?

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

• Is Mr LOS someone for whom the Tribunal could make an order because he has a disability which prevents him 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 Mr LOS someone for whom the Tribunal could make an order because he has a disability which prevents him 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/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” (s 3(1), the Act). 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; 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 (s 3(2), the Act).

11. We have a number of reports from health professionals in evidence before us detailing Mr LOS’s extensive mental health history and the extent of his disability arising from his brain injury. These reports include:

• Mr V, Clinical Psychologist, a Public Hospital, dated 28 August 2015

• Dr W, Psychiatry Registrar, a Public Hospital, dated 1 September 2017

• Ms X, Occupational Therapist, a Public Hospital, dated 8 September 2015

• Mr Y, Case Manager, a service provider, Northern Sydney Local Health District, dated 29 August 2017

• Mr Z, Social Worker, Northern Sydney Local Health District, dated 6 September 2017

12. Significantly, the results of comprehensive neuropsychological assessment undertaken by Mr V indicate that Mr LOS has executive dysfunction. He is inflexible and rigid in his thinking. Ms X’s assessment is that Ms LOS struggles in situations that require cognitive skills to problem solve, and an ability to retain and recall information. This is consistent with CT scans of Mr LOS’s brain which show frontal lobe encephalomalacia. There have been repeated episodes where Mr LOS has acted impulsively and has been unable to control his anger resulting in threats and violent behaviour. Mr LOS is at high risk of relapse into psychosis due to the chronic nature of his illness and severity of his delusions. Mr LOS lacks insight into his illness and the risk to himself and others from the behaviours that he exhibits when he becomes unwell.

13. When we spoke with Mr LOS, it was not clear whether he took issue with the reports of the health professionals that he has suffered a brain injury and has mental illness. He agreed that he takes medication but when we asked him about the reasons why he takes medication, his responses were confused and difficult to follow. Mr LOS told us that he has “never made any mistake since arriving in Australia”. His presentation was consistent with evidence of the health professionals that he lacks insight into his illness.

14. Ms DAC did not take issue with the reports of the health professionals. She expressed concern about Mr LOS becoming unwell if he does not take his medication and the risk to him arising from his mental illness.

15. We accept the evidence of the health professionals which is comprehensive and consistent. There is no evidence to rebut the opinions expressed that Mr LOS has significant mental illness arising from his brain injury and cognitive deficits arising from this. We are satisfied that Mr LOS has a disability which prevents him making important life decisions. He is a person for whom we could make a guardianship order.

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

16. 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, and

2. the person's spouse, and

3. the person's carer and

2. the importance of preserving the person's existing family relationships, and

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.

17. 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).

18. Dr W, Mr V, Mr Y, and Mr Z all expressly comment in their reports about Mr LOS’s plan to travel to India to see the Dalai Lama. It is apparent from their evidence there are considerable concerns about his issue which has been ongoing for some years now.

19. On the basis of this evidence, Mr LOS has been extremely focused on his plan to travel to India to see the Dalai Lama since at least 2015. Dr W reports that Mr LOS has stated that he wants to inform the Dalai Lama of the injustices that he has experienced and to seek retribution. Mr Z concurs that Mr LOS’s desire to travel to India is longstanding and describes this as culturally appropriate. There are concerns, however, about Mr LOS’s ability to travel to India safely. Dr W reports that it is the consensus of the treating team at the Public Hospital that there is a high risk of non-compliance with treatment and serious risk of physical harm to himself and others and of him committing offences if he acts on his delusions.

20. Mr Z reports that Mr LOS has previously stated that he will not take medication if he travels to India, however more recently, states that he will. This is what Mr LOS told us also. Mr Z states that whilst Mr LOS is fixed in his intent to travel to India, his plans about the trip are very changeable and he minimises the importance of planning the trip and any risks involved. He does not cope well under stress and his marked cognitive rigidity and inflexibility leaves him vulnerable to misadventure and stress. Mr Z reports that in the past when Mr LOS has been under stress and not fully understanding a situation, he has resorted to both suicidal and homicidal threats, even when there have not been any clear signs of any deterioration in his mental health. Mr Y reports that whilst Mr LOS is fixated on travelling to India, he has no clear and safe plan.

21. Ms DAC expresses concern about Mr LOS travelling to India. In her view, he is unable to travel safely there by himself and has difficulties with anger management. Mr LOS does not accept the chances of being granted an audience with the Dalai Lama may be slim and she is concerned about how he will cope if the trip does not work out how he has envisaged.

22. Mr Z reports that he has previously spoken with Mr LOS’s mother and she expressed concerns about his plans to travel to India.

23. It is evident that there have been on-going discussions between members of the treating team, Ms DAC, and Mr LOS about his plan to travel to India. They have been unable to persuade Mr LOS of the risks to him if he travels to India without sufficient supports in place. Mr LOS has been obstructed in his plan, however, as his limited understanding of English has prevented him from applying for a passport. Mr LOS has sought the assistance of Ms DAC to apply for a passport; however, she has been reluctant to provide this assistance in the circumstances. Mr LOS has also been unable to obtain funds from the NSW Trustee and Guardian to apply for a passport. Mr Z states that the situation is no longer tenable and can no longer be managed informally, however, as Mr LOS’s frustrations have increased placing him at risk. Mr LOS was admitted to a Public Hospital as an involuntary psychiatric patient earlier in 2017 following an incident at the northern Sydney office of the NSW Trustee and Guardian when he threatened to kill an officer there because funds had not been released to enable him to apply for a passport and travel to India. Mr Z states that it is preferable that a guardian be appointed so there is clarity about who is making the decision about whether he can apply for a passport or travel to India. He states this will assist in ameliorating the confusion that has arisen.

24. Dr V, Mr Z, Mr X, and Ms DAC all support a guardian being appointed to make a decision about whether Mr LOS can apply for a passport and travel to India. Mr X states he is willing to continue to assist Mr LOS with enquires to see if a person can be identified to travel with Mr LOS to India and otherwise for adequate supports to be in place whilst he is there with a view to ensuring his safety. It is envisaged that Mr LOS will need someone to travel with him and/or that there are support persons in India to ensure that he takes his medication and to otherwise support him. A report from the NSW Trustee and Guardian in evidence before us indicates that Mr LOS has $10,534 in his account.

25. Mr LOS strongly asserted to us that he wanted to travel to India to see the Dalai Lama. He appeared to accept that he would need help in order to achieve his goal however was rigid his plans. When we asked him what he would do if he travelled to India and was not able to see the Dalai Lama, he said “that situation won’t happen”. Mr LOS’s answers were otherwise consistent with the evidence of the health professionals that he has difficulty accepting any risks associated with his plan to travel to India. We accept that he is either unwilling or unable to arrange for the necessary supports himself.

26. We had difficulty obtaining Mr LOS’s view about whether a guardianship order should be made. He appeared to want to make his own decisions, however, about whether he should travel to India.

27. We accept that a guardianship order should be made and that this is in Mr LOS’s best interests. The evidence from the health professionals and Ms DAC, which we accept, is that Mr LOS will be at considerable risk if he travels to India without the necessary supports in place. We also accept Mr Z’s evidence that a guardianship order is beneficial in order to provide clarity around the decision-making process and that informal arrangements to support Mr LOS on this issue have broken down, leading to confusion and frustration to Mr LOS. This also places additional strain on Mr LOS’s relationships with Ms DAC and members of the treating team.

Who should be the guardian?

28. Mr Z proposed that the Public Guardian be appointed guardian for Mr LOS. Ms DAC did not seek to be appointed.

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

How long should the order last?

30. An initial guardianship order can be made for a period of up to one year from the date on which it was made. We made an order for 12 months. At the end of this period it is appropriate that a review is conducted to determine whether a guardian continues to be required for Mr LOS and if so, whether there needs to be any amendment to the functions of guardianship.

**********

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 January 2018