LXN

[2024] NSWCATGD 13

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

LXN [2024] NSWCATGD 13

Hearing dates:

6 August 2024

Date of orders:

6 August 2024

Decision date:

06 August 2024

Jurisdiction:

Guardianship Division

Before:

J D’Arcy, Senior Member (Legal)
Dr B McPhee, Senior Member (Professional)
D R Sword, General Member (Community)

Decision:

Guardianship

1. A guardianship order is made for LXN.

2. The Public Guardian is appointed as the guardian.

3. This is a continuing guardianship order for a period of 12 months from 6 August 2024.

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

FUNCTIONS:

5. The guardian has the following functions:

a) Accommodation

To decide where LXN may reside.

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

i) take LXN 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 LXN may receive.

d) Medical/Dental consent

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

e) Services

To make decisions about services to be provided to LXN.

f) Legal services

To make decisions for LXN in relation to access to legal services.

g) Travel

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

h) Passport

To make a decision about whether or not the passport of LXN should be surrendered to the guardian or some other authority the guardian nominates pending a decision by the guardian concerning travel.

i) Visa

To make a decision about LXN’s visa status.

CONDITION:

6. The condition of this order is:

a) Standard Condition

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

Financial Management

1. The estate of LXN is subject to management under the NSW Trustee and Guardian Act 2009 (NSW).

2.   The management of the estate of LXN is committed to the NSW Trustee and Guardian.

Catchwords:

GUARDIANSHIP – application for a guardianship order – whether a guardianship order should be made – subject person with an intellectual disability – subject person is a citizen of another country – holder of a temporary visa – subject person resides at a safe house – reports of trafficking, exploitation and abuse – no access to support services – need for decisions to be made about the subject person’s safe return to Cambodia – visa, travel and passport functions – no private person suitable to be appointed – Public Guardian appointed – order made

FINANCIAL MANAGEMENT – application for a financial management order – subject person with an intellectual disability – incapable of managing financial affairs – best interests are served by the appointment of a financial manager – no private financial manager proposed - NSW Trustee and Guardian appointed – order made

Legislation Cited:

Guardianship Act 1987, ss 3(1)-(2), 4, 14, 14(2), 25M

Cases Cited:

IF v IG [2004] NSWADTAP 3

Texts Cited:

None cited.

Category:

Principal judgment

Parties:

001: Guardianship Application

LXN (the person)
MZE (applicant)
Public Guardian

002: Financial Management Application

LXN (the person)
MZE (applicant)
NSW Trustee and Guardian

Representation:

J Alewood, separate representative of LXN

File Number(s):

NCAT 2024/00261587

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. These Reasons for Decision concern applications for the appointment of a guardian and financial manager for LXN.

2. LXN is a 26-year-old Cambodian woman who is currently living in a safe house at an undisclosed location in Sydney. She has no family in Australia but has recently made contact with her sister who lives overseas.

3. LXN is reported to have a complex history of trauma, including having been subject to trafficking, exploitation and abuse. She is reported to have a cognitive impairment. She is currently on a bridging visa A (a temporary visa allowing her to stay temporarily in Australia while awaiting a substantive visa application to be determined). She has no access to disability services, any support services to meet her needs and she has no financial support.

4. MZE, case manager, at the safe house, of a charitable organisation, applied for the appointment of a guardian and financial manager for LXN.

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. The Tribunal has ordered that LXN be separately represented. The separate representative is Ms Jan Alewood.

GUARDIANSHIP

What did the Tribunal have to decide?

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

• Is LXN 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 LXN 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?

8. 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 they are “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).

9. Dr Z is a consultant psychiatrist who interviewed LXN on three separate occasions. She described her as having a severe and permanent neurocognitive disorder with features of anterograde and retrograde memory loss including substantial loss of autobiographical memory, loss of language skills (she now struggles to communicate in English and Khmer) and loss of calculation ability. She is unable to make medical/dental, accommodation and support decisions independently due to her inability to recall material factors relevant to these decisions and retain them in working memory to use and weigh these factors and communicate her decision. She shows a lack of awareness of her own functional deficits, her support needs, her lack of visa status which would grant access to supports, and her lack of finances.

10. Dr Y, clinical neuropsychological registrar at a public hospital, interviewed LXN on two occasions in April 2024 and concluded that cognitive test results revealed severe impairments (scoring in the extremely low range) across all domains of functioning including working memory, speed of information processing, verbal and perceptual comprehension and aspects of executive functioning including verbal abstract reasoning and fluency. Dr Y made a diagnosis of a major neurocognitive disorder due to an unspecified disorder. She stated that based on LXN’s cognitive profile, complex trauma history and post-traumatic stress disorder she requires extensive support in the community and is vulnerable and at risk of misadventure.

11. Dr Y and Dr Z have both thoroughly reviewed LXN and agreed that she has a diagnosis of a major neurocognitive disorder on a background of complex trauma and post-traumatic stress disorder, which significantly affects her memory and her decision-making capacity.

12. LXN’s presentation in the hearing was consistent with the above views. She told the Tribunal that she did not understand what the hearing was about; she did not know where she was staying; a person was helping her and although she was happy to receive help, she did not know what she needed or why she was getting help. During the course of the hearing LXN did not appear to follow the proceedings despite the use of a Khmer interpreter.

13. Ms Jan Alewood, separate representative, relied on the reports of Dr Y and Dr Z and submitted that LXN has a severe neurocognitive disorder which significantly affects her memory and language skills. LXN is unable to provide clear and consistent answers to questions and unable to understand the factors to be taken into account in making decisions and to be able to communicate those decisions. She has no capacity to weigh the consequences or risks associated with decisions about her lifestyle and well-being. She is a person for whom a guardianship order could be made.

14. Based on Dr Z’s and Dr Y’s medical opinions which were borne out by the Tribunal’s observations, the Tribunal is satisfied that LXN has a disability which prevents her from making important life decisions. She is a person for whom the Tribunal could make a guardianship order.

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

15. 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.

16. 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 must be guided by the principles that are set out in s 4 of the Act (see IF v IG [2004] NSWADTAP 3).

17. MZE explained that LXN first came to the safe house run by the charitable organisation in 2019. At that time, she had the ability to engage with others, look for work and live independently. She was referred to the charitable organisation again in March 2024 by another public hospital because of concerns that she had experienced modern slavery. During the admission procedures to the safe house, her ability to engage was very limited. She was unable to remember the triple zero emergency number, the number of the safe house, and once she left the house independently, she was unable to return because she was not aware of the location of the house. Staff would receive calls from police from a variety of places including the airport. She had been charged with affray and not leaving licensed premises and has no memory of attending the Local Court and consenting to the charges. She has had five recent admissions to hospital, two of which were to a mental health unit. She needs 24/7 support. Her “boyfriend” regularly appears at hospital to obtain confidential information about her. She has disclosed to staff that he has attempted to strangle her on numerous occasions. The police have taken an apprehended domestic violence order out against him, which he is currently opposing.

18. MZE stated that the safe house is not suitable accommodation because LXN cannot live independently. She has a bridging visa but needs to apply for a protection visa. She is entitled to receive treatment under Medicare but has no identity documents to register and obtain a Medicare card. She is not entitled to any Centrelink benefits. She has legal representation for the Local Court matter and her lawyer anticipates that the charges will be dismissed when the court reviews the new neuropsychological assessment. If the charges are dismissed LXN can then apply for a protection visa. She has a six-year-old son who is being adopted and she will need legal assistance in those court proceedings.

19. Ms X, social work team leader, of a mental health services centre, stated that her interaction with LXN indicated that she was at risk of serious harm, manipulation and coercion. She met with her on 2 August 2024 with an interpreter but LXN’s responses to all of her questions were “I don’t remember.”

20. Ms W, of a not-for-profit organisation at a university in Sydney, was reported to have had contact with LXN in 2019 and more recently. She was reportedly “shocked” by her cognitive decline over four years, her inability to recall any information or communicate on any issue.

21. Ms Alewood submitted that a guardian should be appointed for LXN to make decisions about her accommodation (authorise others), health care, treatment because she cannot provide consent, services and legal services. She has expressed a view to return to Cambodia but nothing is known about the safety of her situation in Cambodia.

22. The liaison officer of the Public Guardian, submitted that the Tribunal should make a guardianship order with the following functions:

• accommodation (authorise others);

• health care and consent to treatment because recent and frequent hospitalisations in 2024 indicate the need for further medical assessments and a health care function may allow for the release of health care information which would assist LXN in other areas of her life;

• services;

• legal services to assist with the matters in the Local Court and with immigration; and

• visa, travel and passport to allow for decisions to be made about investigating a safe return to Cambodia.

The Tribunal’s findings

23. The evidence provided to the Tribunal presents LXN as a highly vulnerable young woman whose profoundly adverse life experiences have resulted in her losing her capacity to make any decisions or even communicate in any meaningful way with persons attempting to assist her.

24. LXN has a bridging visa, she has no passport and no way of returning to her birth country of Cambodia. She has accommodation at a safe house, but her current needs are now too high to be met by the house and its staff. She leaves the house but is not always safe to return because she cannot remember where she is living and is frequently brought back by police. She has had numerous hospital admissions in 2024, including two to a mental health unit and there is little information about her medical history. She cannot consent to treatment because of her cognitive impairment. She needs services to connect her to and engage her with the community and to provide her with a robust network. She is still undecided about whether she wants to remain in Australia or return to Cambodia. The conditions of her security and safety in Cambodia are unknown. She will need to apply for a protection visa once the charges in the Local Court are dealt with. She requires the assistance of a lawyer to deal with those charges and also any legal issues arising from the proposed adoption of her son.

25. LXN is incapable of making any decisions which would provide her with safe and appropriate accommodation to meet her high needs, suitable health care and services. She cannot consent to treatment, or give instructions to a lawyer. She cannot make complex decisions about her visa status, apply for a passport or travel to a safe destination. Her cognitive impairment has robbed her of her ability to control her life in a safe manner.

26. In these circumstances the Tribunal decided to make a guardianship order with the functions of accommodation (authorise others) health care, consent to medical and dental treatment, services, legal services, passport, visa and travel.

Who should be the guardian?

27. As there is no private person available to be appointed as guardian, the Tribunal appointed the Public Guardian as LXN’s guardian.

How long should the order last?

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

29. The Tribunal decided to make an order for 12 months to be able to determine the effectiveness of the order within a reasonable time period. It may be that a less restrictive order may be more appropriate for LXN after 12 months.

FINANCIAL MANAGEMENT

What did the Tribunal have to decide?

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

• Is LXN incapable of managing her affairs?

• Is there a need for another person to manage LXN’s affairs and is it in her best interests for a financial management order to be made?

• If so, who should be appointed financial manager?

Is LXN incapable of managing her affairs?

31. Dr Z’s and Dr Y’s evidence clearly indicates that LXN has a major neurocognitive disorder which prevents her from managing her own financial affairs. Dr Z noted that she has lost the ability to undertake any calculations.

Is there a need for a financial management order?

32. MZE advised that LXN may be entitled to funding through the Support for Trafficked People Program (STPP).

33. According to the Department of Social Services website, STPP is a key component of Australia’s anti-human trafficking strategy and the National Action Plan to Combat Modern Slavery. The STPP provides assistance to all victims and survivors of human trafficking, slavery and slavery-like practices (modern slavery), including forced marriage and forced labour, who meet the eligibility criteria. The STPP is administered by the Department of Social Services and delivered nationally by the Australian Red Cross. It aims to assist victims and survivors in meeting their safety, security, health and well-being needs, and to develop options for life after they leave the STPP. Case managers are responsible for supporting victims and survivors to access services to meet their individual needs, which may include case management support, suitable accommodation, medical treatment (through Medicare and the Pharmaceuticals Benefits Scheme, or as approved), counselling, referral to legal and migration advice, skills development training, including English-language classes and vocational guidance social support.

34. A financial manager is needed to be able to apply for the STPP on LXN’s behalf, to apply for Centrelink benefits should a change in visa status entitle her to an income support payment, to apply for identification documents and to register for Medicare.

Is it in LXN’s best interests that a financial management order be made?

35. LXN’s best interests are served by the appointment of a financial manager who can make decisions to allow her to live in the community with appropriate financial supports, identity documents and access to services.

Who should be appointed as financial manager?

36. In appointing a financial manager, as in making all other orders under the Act, the Tribunal must act with the interests of the person concerned as the paramount consideration and in accordance with the other principles set out in s 4 of the Act.

37. Section 25M of the Act provides that, if the Tribunal makes a financial management order, it may appoint a suitable person to manage the person’s estate or may commit the management of the estate to the NSW Trustee and Guardian.

38. In the absence of any proposals for a private financial manager, the Tribunal appointed the NSW Trustee and Guardian as LXN’s financial manager.

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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: 02 October 2024