LXN (No 2)

[2024] NSWCATGD 21

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

LXN (No 2) [2024] NSWCATGD 21

Hearing dates:

22 November 2024

Date of orders:

22 November 2024

Decision date:

22 November 2024

Jurisdiction:

Guardianship Division

Before:

R H Booby, Principal Member

Decision:

The guardianship order for LXN made on 6 August 2024 has been reviewed. The order now is as follows:

1. The Public Guardian is appointed as the guardian.

2. This is a continuing guardianship order for a period of nine months from 22 November 2024.

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

FUNCTIONS:

4. 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) Sexual Assault Assessment

To make decisions on behalf of LXN in relation to any sexual assault assessment conducted involving her, including decisions about any physical examinations and the taking of any specimens or samples such as blood samples and about conducting any tests for the presence of blood, semen or other substances.

(f) Release of Sexual Assault Investigation Kit

To make decisions on behalf of LXN in relation to the release to NSW Police or other appropriate authority of any Sexual Assault Investigation Kit concerning LXN, including any Forensic Protocol and any specimens, samples or test results relating to a sexual assault assessment.

(g) Services

To make decisions about services to be provided to LXN.

(h) Legal services

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

(i) Travel

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

(j) 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.

(k) Restrictive Practices

To give or withhold consent to restrictive practices used to influence LXN’s behaviour.

(l) Other Function

1. Visa - To make decisions about LXN’s visa status.

2. To make decisions about the use of an electronic tracking device to assist to locate LXN when necessary.

CONDITION:

5. 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.

Catchwords:

GUARDIANSHIP – requested review of guardianship order – subject person with an intellectual disability – subject person citizen of another country – holder of a temporary visa – subject person resides at a safe house – not eligible for assistance under the NDIS – reports of trafficking, exploitation and abuse – application to augment the decision-making functions of the public guardian – whether to include consent to forensic testing following alleged sexual assault function – whether to include consent to controls being placed on the subject person’s free access to her environment function – whether use of GPS tracking device constitutes a restrictive practice – whether use of a locked timed medication dispenser constitutes a restrictive practice – broad function of consenting to restrictive practices of a generic nature granted – order varied

Legislation Cited:

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

National Disability Insurance Scheme (Provider Registration and Practice Standards) Rules 2018 (Cth)

Cases Cited:

IF v IG [2004] NSWADTAP 3

Texts Cited:

None cited.

Category:

Principal judgment

Parties:

004: Requested Review of Guardianship Order

LXN (the person)
MZE (applicant)
Public Guardian (appointed guardian)

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

REQUESTED REVIEW OF GUARDIANSHIP ORDER

Background

1. LXN is a 27-year-old woman who is currently living in a safe house in Sydney. She has no family in Australia.

2. 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.

3. On 6 August 2024, the Tribunal made a guardianship order appointing the Public Guardian to make decisions for LXN. The Public Guardian was authorised to make the following decisions for LXN:

1. Accommodation, including authorising others, including members of NSW Police and the Ambulance Service of NSW to take, keep and return LXN to a place determined by the guardian;

2. Health care;

3. Medical/Dental treatment;

4. Services;

5. Access to legal services;

6. Travel outside Australia;

7. Whether LXN’s passport should be surrendered to the guardian or some other authority pending a decision by the guardian concerning travel; and

8. Decisions about LXN’s visa status.

4. On 12 November 2024, the Tribunal received an application from MZE, a Case Manager at a charitable organisation safehouse, seeking a review of the guardianship order to augment the decision-making functions of the guardian.

The hearing

5. At the end of these Reasons for Decision is a list of witnesses who attended the hearing. [Appendix removed for publication.]

What did the Tribunal have to decide?

6. On reviewing the current guardianship order at the request of MZE, the Tribunal may confirm, vary, suspend, revoke, renew, or renew and vary the order.

7. There was no evidence or submission to the effect that LXN was no longer a person in need of a guardian, that the functions allocated to the guardian on 6 August 2024 are inappropriate, or that the Public Guardian should not be the guardian. Accordingly, the question to be considered by the Tribunal is what, if any, additional functions should be allocated to the guardian.

What, if any, additional functions should be added to the guardianship order?

8. The Tribunal must consider all of the following matters set out in s 14(2) of the Guardianship Act 1987 (NSW) (the Act) before exercising its discretion to make a further guardianship order:

1. the views (if any) of:

1. the person;

2. the person’s spouse;

3. the person’s carer; and

2. the importance of preserving the person’s existing family relationships;

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.

9. 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).

10. During the hearing, LXN was assisted by an interpreter in her primary language. She sometimes said that she did not understand questions put to her, and whilst efforts were made to promote her understanding of the proceedings and the matters discussed, the extent of her understanding is unknown.

11. It is relevant to repeat the medical information that the Tribunal previously considered in making the guardianship order in August 2024 and that I took into account in the current hearing. That evidence included the following:

“[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 [her primary language]) 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]    [Drs Y and 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. It is also relevant to consider the following matters that were taken into account by the Tribunal when it made the guardianship order in August:

“[17]    [MZE] explained that [LXN] first came to the [safe house] run by [a 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 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 [at an acute mental health unit], 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, director of a university operated non-for-profit organisation], 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.”

13. In her application seeking a review of the order, MZE seeks that the order includes a function of consenting to forensic testing following alleged sexual assault, and consenting to controls being placed on LXN’s free access to her environment.

14. In a report to the Tribunal dated 21 November 2024, a migration support caseworker at a charitable organisation indicates that recently LXN disclosed that she had experienced sexual assault. The caseworker accompanied LXN to a public hospital, but LXN was not able to consent to the release of a Sexual Assault Investigation Kit (SAIK) that includes specimens, samples or test results relating to a sexual assault assessment.

15. The Public Guardian was not able to consent to sexual assault investigation or the release of the SAIK because it lacked the authority to provide those consents.

16. During the hearing LXN indicated that she did not remember going to hospital and did not recall being sexually assaulted. When asked if she agreed to the Public Guardian speaking to medical practitioners and providing consent to the release of a SAIK, she indicated consent. However, as noted above, the extent of her understanding of the proceedings is unknown.

17. The Public Guardian was agreeable to augmenting the functions of the guardianship order to include decision-making about sexual assault investigation/assessment and release of the SAIK.

18. Having regard to the evidence currently before me, and that accepted previously by the Tribunal, I am satisfied that LXN is vulnerable to physical harm and sexual exploitation, and that the combined effects of her impairments prevent her from reporting these incidents and seeking appropriate investigation of them. Nor is she able to consent to the release of the SAIK, to facilitate relevant police activity. I was satisfied that formal consent is required for these matters and that it is in the best interests of LXN to allocate those decision-making functions to a guardian.

19. In her letter, the caseworker also indicates that LXN frequently leaves the safe house with her whereabouts being unknown. It is not known how she is returned to the safe house, where she has been, and with whom. LXN does not know the address of the safe house and is sometimes found out in the community not knowing how to return. At those times she has been put in touch with police or a hospital.

20. In a letter dated 18 November 2024, Ms V, an occupational therapist, indicates that LXN is not able to remember her address or to navigate to her home when she is out. Ms V opines that it is highly likely that when absent from the safe house, LXN is being sexually exploited. In support of that view, she indicates that at times when LXN returns to the safe house she has cash, despite not having access to any social security or other recognised income. Ms V proposes that a GPS tracking device be used so that if LXN were lost or in danger, staff would be able to locate her and provide assistance. To the extent that she understood this proposal, LXN was agreeable to the Public Guardian being authorised to make decisions about the use of a tracking device to locate her as necessary.

21. The Public Guardian was agreeable to augmenting the functions of the guardianship order to include decision-making about the use of a GPS tracker to locate LXN when necessary.

22. LXN is not eligible for assistance under the National Disability Insurance Scheme (NDIS). However, to provide some guidance as the categorisation of the use of the GPS tracking device, MZE referred to an NDIS publication indicating that in the view of the National Disability Insurance Agency (NDIA), the use of a GPS tracking device does not constitute a restrictive practice where it is used for support staff to assist a person should he or she get lost. I concur with this view, as I consider that the proposed use of the tracking device places no constraints on LXN’s free access to her environment. However, I am satisfied that the use of such a device impinges on LXN’s privacy and as such should be considered by a guardian who is able to consent to, or refuse consent for, its use.

23. Ms V also indicates that LXN needs a locked timed medication dispenser because her memory impairment results in her forgetting to take her medication or taking too much medication. Staff at the safe house are not permitted to administer medication and the house is not staffed on a 24/7 basis. As a result, LXN’s medication is not supervised, and the use of a locked medication dispenser that dispenses appropriate medication is required to reduce the risk of LXN overdosing on medication. I am satisfied that there is a need to implement this strategy for LXN’s health. It does amount to a restriction on her free access to items in her environment and, as such, constitutes a restrictive practice. I am satisfied that there is a need for a guardian to review that practice and consent or refuse consent for its use.

24. LXN was agreeable to the use of a locked timed medication dispenser and to the Public Guardian making decisions about the use of that device.

25. The Public Guardian was agreeable to augmenting the functions of the guardianship order to include decision-making about the use of a locked timed medication dispenser as a restrictive practice.

26. Under the National Disability Insurance Scheme (Provider Registration and Practice Standards) Rules 2018 (Cth), restrictive practices are categorised as environmental, mechanical, physical, chemical and seclusion. However, as noted above, LXN is not eligible for assistance under the NDIS. I have decided to provide a function of consenting to restrictive practices of a generic nature for the following reasons:

1. As LXN is not eligible for the NDIS, there is no need to employ the NDIS categories;

2. Having regard to LXN’s complex presentation and circumstances it is foreseeable that a guardian might need to consider a restriction of a different nature from the one involved in the use of the timed locked medication dispenser;

3. LXN’s circumstances have been well documented in this Reasons for Decision and those of the Tribunal upon making the order in August 2024 – I see little value in those circumstances being reiterated in a repeat review process;

4. I am satisfied that the Public Guardian is experienced in considering the use of a range of restrictive practices and in making decisions about their use in the best interests of people under guardianship; and

5. Having regard to the Public Guardian’s experience and expertise, and to LXN’s communication and language difficulties and her history of trauma, I am of the view that it is in her best interests to avoid, if possible, the need for a repeat hearing should other restrictions be proposed.

27. Whilst the principles set out in s 4 of the Act are to the effect that LXN’s’ freedom of decision and freedom of action should be limited as little as possible, I am required to prioritise her best interests and welfare. Whilst the guardianship order as augmented is highly restrictive of LXN’s freedom of decision and action, I am satisfied that, having regard to her disability and social circumstances, the order is necessary to protect her welfare and best interests.

27. There was no evidence that the previous order has adversely affected any family relationship or LXN’s cultural and linguistic environment or that renewing the order would be likely to do so.

28. Having considered the evidence and reached the conclusions noted above, I augmented the guardianship order to include the additional functions sought and as indicted in the Tribunal’s order.

How long should the order last?

30. The order made on 6 August 2024 was an order for twelve months. There was no application to vary that order. I made the current order nine months from today to retain approximately the same review date envisaged when the original order was made.

Witnesses

The following people attended the hearing and gave evidence:

• LXN

• MZE, Case Manager at a charitable organisation safehouse

• the Migration Support Caseworker at a charitable organisation

• Public Guardian

An interpreter participated in the hearing to assist LXN in her primary language.

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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: 08 May 2025