LZB

[2018] NSWCATGD 21

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

LZB [2018] NSWCATGD 21

Hearing dates:

8 June 2018

Date of orders:

08 June 2018

Decision date:

08 June 2018

Jurisdiction:

Guardianship Division

Before:

R H Booby, Senior Member (Legal)
Dr G Jamieson, Senior Member (Professional)
L Porter, General Member (Community)

Decision:

1. A guardianship order is made for Mr LZB.

 

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

 

3. Ms NAB of [Address removed for publication.] is appointed as the alternative guardian.

 

4. This is a continuing guardianship order for a period of three years from 8 June 2018.

 

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

 

FUNCTION: Mr QYB

 

6. Mr QYB has the following function:

 

a) Health care

 

To decide what health care Mr LZB may receive.

 

CONDITION:

 

7. The condition of this order is:

 

a) Standard Condition

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

Catchwords:

GUARDIANSHIP – application for a guardianship order – representation – separate representative –guardianship order made – appointment of private guardian – considerations for length of order – functions – health care function and end-of-life decisions

  WORDS AND PHRASES – “withdrawal of active resuscitation order” – “palliative care” – “not-for-resuscitation” – “withhold life-sustaining treatment”

Legislation Cited:

Guardianship Act 1987 (NSW), Pt 5; ss 3(1)-(2), 3D, 3F(2)(d), 4, 14, 14(2), 14(2)(d), 17(1), 18(1B)
Mental Health Act 2007 (NSW)

Cases Cited:

Application of Justice Health; Re a Patient [2011] NSWSC 432
BAH [2007] NSWGT 1
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
FI v New South Wales Trustee and Guardian (No. 2) [2010] NSWADT 43
FI v Public Guardian [2008] NSWADT 263
HAE [2018] NSWCATGD 10
IF v IG [2004] NSWADTAP 3
QAN [2008] NSWGT 19
QAX [2009] NSWGT 11
WK v Public Guardian (No. 2) [2006] NSWADT 121
YID [2007] NSWGT 19

Texts Cited:

NSW Ministry of Health Policy Directive on Using Resuscitation Plans in End of Life Decisions
FACS Resuscitation Plans – Common Scenarios, March 2018

Category:

Principal judgment

Parties:

001: Guardianship Application

 

Mr LZB (the person)
Mr QYB (applicant, carer)
Ms NAB (carer)
Department of Family and Community Services (joined party)
Public Guardian

 

002: Guardianship Application

  Mr LZB (the person)
Ms NAB (applicant, carer)
Mr QYB (carer)
Department of Family and Community Services (joined party)
Public Guardian

Representation:

Solicitors
Viet Hoang Nguyen for Family and Community Services
Linda Rogers as separate representative for Mr LZB

File Number(s):

NCAT 2018/00111729

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

Background

1. Mr LZB lives in a group home at the Specialist Supported Living Centre, operated by the Department of Family and Community Services (FACS).

2. Mr LZB has been diagnosed with profound intellectual disability and requires a high-level of care and support. In addition to the diagnosis of intellectual disability he has been diagnosed with cerebral palsy, microcephaly, cortical visual impairment, dysphagia, gastroesophageal reflux disease and osteoporosis.

3. Mr LZB is non-verbal but is said to be able to indicate emotions by facial expressions and some verbalisations. He requires a high level of care and constant supervision.

4. Mr LZB has been on a Palliative Care Plan since 2010 and there have been successive Withdrawal of Active Resuscitation Orders made regarding his health care planning. The most recent order was signed by Dr Z on 6 February 2018 and by Mr LZB’s mother, Ms NAB, on 10 February 2018.

5. The “Withdrawal of Active Resuscitation Order” is on FACS letterhead. The details of the Order as they specifically relate to Mr LZB are written in handwriting and are as follows:

“No CPR

No use of defibrillator

as per current care plan of 31.1.18.”

The standard part of the Order concludes with:

“The Person Responsible can withdraw consent to this Order at any time, whether verbally or in writing. This Order is valid for a period of 12 months, unless consent is withdrawn earlier by any party.”

Guardianship application

6. On 6 April 2018, the Tribunal received applications seeking the appointment of a guardian for Mr LZB. The applicants were Ms NAB and Mr QYB, who is the father of Mr LZB. In their applications Ms NAB and Mr QYB express concern that they were given to understand that Mr LZB’s Care Plan could be invalid despite it being in existence since he was 12 years old and that it was endorsed by them.

7. As a result of directions made by the Tribunal on 10 May 2018, copies of documents contained within a briefing pack disseminated by FACS on 19 March 2018 to management of all FACS operated services, including the Specialist Supported Living Centre, were provided to the Tribunal and to each other party to these proceedings (“the FACS policy documents”). These documents confirm that in circumstances where a person does not have capacity and does not have a guardian, but a doctor has provided an opinion in advance that life sustaining treatment is not recommended, and relative(s) agree, nonetheless staff “must apply CPR” and are to call ambulance services [FACS Resuscitation Plans – Common Scenarios, March 2018, Scenario 5].

8. FACs submitted that the new policy remedies an error that had been identified in the use of not-for-resuscitation orders across NSW in FACS operated facilities where “person’s responsible” were considered able to authorise such orders when they do not have the power to do so under Pt 5 of the Guardianship Act 1987 (NSW) (“the Act”). We understood from the oral submissions made on FACS’s behalf that FACS base this on a 2008 decision of the then President of the Administrative Decisions Tribunal in the matter of FI v Public Guardian [2008] NSWADT 263 (“FI”).

Issues for determination

9. It was not in dispute at the hearing on 8 June 2018 that Mr LZB was a person for whom a guardianship order could be made given the evidence before us that due to the impact of his profound intellectual disability, he was unable to make, nor could he be supported to make, critical medical and health care decisions as to what should occur in a medical emergency such as that contemplated by the Palliative Care Plan and resuscitation order.

10. Nor was it in dispute that if we decided to appoint a guardian or guardians for Mr LZB that his parents should be so appointed. There was also agreement between the parties that an initial appointment for the longest possible period under the Act should be made and that the orders should be reviewed at the end of that period.

11. The principal issue for determination was whether we should exercise our discretion under s 14(2) of the Act to make a guardianship order for Mr LZB. As is set out in more detail below, this required us to have regard to the mandatory considerations set out in s 14(2) of the Act and also to apply the principles set out in s 4 of that Act.

12. In considering how we should exercise our discretion, we had regard to the FACS Policy Documents because they mandate the use of CPR in the circumstances set out above without regard to a person’s individual circumstances.

13. The FACS Policy Documents also suggested in several places that another form of substitute decision-making was available other than by way of the appointment of a guardian for Mr LZB in that the NSW Civil and Administrative Tribunal (NCAT) could itself make an order “that states that CPR is not to be administered” [FACS position on Resuscitation Plans, March 2018, Legal Position]. Whether or not there was a statutory basis for this assertion was directly relevant to the mandatory consideration in s 14(2)(d) of the Act that requires the Tribunal to consider whether it is practicable for services to be provided to a person without the need for the making of a guardianship order.

Progress of guardianship hearing

14. At an interlocutory hearing convened on 17 May 2018 the Tribunal:

1. Ordered that Mr LZB be separately represented in the hearing of the application(s);

2. Joined FACS as a party;

3. Granted leave for FACS to be legally represented by Viet Hoang Nguyen, who is an in-house lawyer within FACS Legal.

4. Directed that FACS was to give to the Tribunal and to all other parties the FACS Policy Documents which the legal representative for FACS described as follows:

1. The FACS position on resuscitation;

2. Process for accepting resuscitation plans;

3. Case scenarios;

4. Acceptance criteria for resuscitation plans;

5. Fact sheet for FACS staff seeking guardianship orders.

Mr LZB

15. Mr LZB attended the hearing briefly. We were unable to seek his views about the matters being considered by the Tribunal but we were able to observe his interactions with his parents and with staff members. We were also able to observe for ourselves some of the physical limitations that affect Mr LZB and which are described in the written material before us as to his current state of health.

16. We were provided with the following written documents concerning Mr LZB:

1. A document headed Medical, Dental and Allied Health Record regarding Mr LZB canvassing the period January 2011 to August 2017.

2. Letter dated 27 September 2016 from Justin Tan, Rehabilitation Registrar for Dr Y, Rehabilitation Medicine Specialist of a public hospital, addressed to Dr Z, of the Specialist Supported Living Centre.

3. Letter dated 8 March 2018 from Dr X, of Rehabilitation Physician, the public hospital, addressed to Dr Z, of the Specialist Supported Living Centre.

4. An “Appointment Recording Sheet” signed on 10 April 2018 by Dr Z including comment that Mr LZB has “severe developmental delay, has spastic quadriplegia and neuropathy” and that he has multiple fractures, is osteoporotic and has had recent infections. Dr Z comments “certainly given his current medical condition, he would not, in my opinion be suitable for resuscitation”.

5. A Palliative Care Plan “reviewed and updated Jan 2018” and signed by Mr QYB on 24 March 2018 and by Dr Z on 27 March 2018 that includes the following matters:

1. Mr LZB’s parents are to be contacted before he is sent to hospital. The family would discuss his circumstances with his GP and make a final decision regarding hospitalisation “if it is the only way to effectively treat the problem and relieve pain”. The importance of Mr LZB’s comfort, quality of daily life and freedom from pain were recognised by all as the most important factor to consider in decisions about his care.

2. “Hospital in the home” was to be set up and used if and when it could provide the care that otherwise would only be available in hospital.

3. PRN antibiotics are to be commenced after-hours when Mr LZB’s temperature is more than 38.5 and is accompanied by blood and pus from nephrostomies – with follow up from the Specialist Supported Living Centre doctors or their after-hours service.

4. The aim for future management is to minimise the need for hospitalisation and to provide appropriate services at the Specialist Supported Living Centre.

5. If the wire above Mr LZB’s left femur were to break through his skin, appropriate but conservative management is to apply and family are to be contacted immediately and options discussed with Dr Z.

6. A final decision as to whether or not Mr LZB is well enough to go out is to be made by the RN on the day.

7. In the event of any other deterioration in Mr LZB’s health, his parents would make decisions about his immediate and future care in consultation with Dr Z.

8. The Withdrawal of Active Resuscitation Order is to be kept on Mr LZB’s file.

9. Staff are to be briefed on the Palliative Care Plan.

6. Health Care Plan for Mr LZB which, amongst other matters notes as an alert “No CPR – due to osteoporosis, brittle bones and current End of Life Plan”.

17. On the basis of the information contained in this material, which was not in dispute, we were satisfied that Mr LZB has a long-term diagnosis of osteoporosis resulting in brittle bones that could be damaged if CPR was performed and that a decision not to administer CPR has been made by his parents in consultation with medical practitioners.

GUARDIANSHIP APPLICATION

What did the Tribunal have to decide?

18. The questions that had to be decided by the Tribunal were:

1. Is Mr LZB 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?

2. Should the Tribunal make a guardianship order and if so, what order should be made?

3. Who should be the guardian?

4. How long should the order last?

Is Mr LZB 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?

19. Section 14 of the Act provides that the Tribunal may make a guardianship order for a person if it is satisfied that he 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 him/his person” (s 3(1) of 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 he requires supervision or social habilitation (s 3(2) of the Act).

20. As previously noted, the Tribunal was provided with a number of written documents setting out the nature and extent of Mr LZB’s physical disabilities and profound intellectual disability. These confirm that Mr LZB is entirely dependent on others to meet his daily care needs and there was agreement by all parties that this was the case.

21. On the basis of the written and oral evidence, which we accept, we were satisfied that the extent of Mr LZB’s physical and intellectual disability result in him being restricted in all major life activities to such an extent that he requires supervision and assistance and is incapable of managing his own person. We were therefore satisfied that Mr LZB is a person for whom we could make a guardianship order.

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

22. 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.

23. 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 (IF v IG [2004] NSWADTAP 3).

24. Section 4 of the Act provides as follows:

4   General principles

It is the duty of everyone exercising functions under this Act with respect to persons who have disabilities to observe the following principles: 

(a)   the welfare and interests of such persons should be given paramount consideration,

(b)    the freedom of decision and freedom of action of such persons should be restricted as little as possible, 

(c)    such persons should be encouraged, as far as possible, to live a normal life in the community, 

(d)    the views of such persons in relation to the exercise of those functions should be taken into consideration, 

(e)    the importance of preserving the family relationships and the cultural and linguistic environments of such persons should be recognised, 

(f)    such persons should be encouraged, as far as possible, to be self-reliant in matters relating to their personal, domestic and financial affairs, 

(g)    such persons should be protected from neglect, abuse and exploitation, 

(h)    the community should be encouraged to apply and promote these principles.

Overview of evidence and submissions

25. Mr QYB and Ms NAB are regarded as Mr LZB’s carers under ss 3F(2)(d) and 3D of the Act. They have both acted as his persons responsible and under the regime set out in Pt 5 of the Act are able to provide substitute consent for any minor or major medical treatment that Mr LZB has required.

26. In describing the circumstances that led to the decision to enter into a Palliative Care Plan, Mr QYB and Ms NAB indicated that because of his poor bone density, CPR would result in injury and pain for Mr LZB. They also referred to a number of other physical conditions affecting Mr LZB, including bowel and kidney complications that are not conducive to cure and which would continue to afflict him. They indicated that they have made medical decisions throughout Mr LZB’s life with the purpose of maximising his lifestyle options. He has had 25 operations over a 10-year period and has had a lot of pain and they wish to spare him further pain.

Evidence and submissions given on behalf of FACS

27. Mr Nguyen indicated that the FACS Performance Improvement section had recently undertaken a review of palliative care plans and not-for-resuscitation orders held for residents of FACS supported accommodation across NSW. Advice was sought from FACS Legal and this led to the development and distribution of the new FACS Policy Documents issued in March 2018 by the FACS Deputy Secretary, Disability.

28. As confirmed in an email dated 19 March 2018, a copy of which was provided to us and the other parties, this material was sent to the Directors of a number of FACS operated services including the Director of the Specialist Supported Living Centre. The email advised, relevantly, that:

1. The FACS position aligns with the “emergency action principle”, that is, to render first-line emergency care in critical/emergency situations.

2. FACS Legal have provided advice that if a person does not have capacity, only appointed enduring guardians or guardians appointed by NCAT or NCAT itself, have the authority to give direction to withhold life sustaining treatment.

3. NSW Health and NSW Ambulance have policy documents addressing the issue of the withholding of life sustaining treatment. However, such documents are to be applied by their respective staff only. These documents are not applicable to FACS staff as they appear not to meet the requirements set out by FACS Legal.

4. Based on FACS Legal advice, a clear and unambiguous instruction to FACS staff on the validity of not-for-resuscitation orders is required. This is due to the current understanding and practice of staff and the potential legal risks associated in this area. Any instruction should ensure that FACS follows all legal requirements, and that frontline staff, including Nurses and Career Medical officers, adhere to their professional obligations.

5. As a matter of priority, Directors were asked to review all current documentation involving instructions around withholding CPR. The process of validating current plans (as valid or invalid) and the briefing of FACS group home staff was required to be completed by 20 April 2018.

29. Mr Nguyen said that it is the view of FACS that NSW Ministry of Health policies regarding resuscitation plans and end-of-life decisions do not apply outside of a hospital and have no application in facilities such as the Specialist Supported Living Centre facility. The Tribunal lacked evidence from others, such as representatives from the Ministry of Health that would establish that the situation was other than Mr Nguyen submitted.

29. In response to questions from the Tribunal, Mr Nguyen said that FACS accepts that a treating medical practitioner could form a view that future resuscitation efforts should not be made in respect of a patient, but that such a decision has effect only on the actions of that medical practitioner or persons immediately under the direction of that practitioner and cannot be used as the basis for decisions by FACS staff about the administration of life saving treatment.

30. It was noted that there were errors to in the FACS policy documents which will be corrected. They were:

1. Statements in the FACS Policy Documents and training material for staff that an NCAT appointed guardian with the function of making major medical decisions may authorise the making of a resuscitation plan that includes the withholding of resuscitation measures. Mr Nguyen for FACS acknowledged that this is incorrect as only a guardian given the function of making health care decisions may authorise such a plan (FI v Public Guardian [2008] NSWADT 263);

2. Statements in the documents that NCAT may make an order that CPR is not to be administered to a person. Counsel for FACS also acknowledged that there is no statutory basis for this assertion and it is incorrect (FI v Public Guardian [2008] NSWADT 263).

Public Guardian’s submission

32. Ms Carolina Gonzales of the Office of the Public Guardian noted that as a result of the policy implemented by FACS the treatment of end-of-life plans that include “not for resuscitation” orders in FACS facilities differs from how they are treated elsewhere, including in aged care facilities. However, taking into account the FACS policy, she supported the application to make a guardianship order appointing a guardian with a health care function to make such a plan and order, so that Mr LZB would not be subjected to unnecessary and invasive treatment.

Separate representative’s submissions

33. Ms Rogers noted that the authority of a person responsible to consent to medical treatment also allows that person to refuse treatment and that the person responsible must have regard to the Objects of Pt 5 of the Act that include ensuring that treatment is carried out on a person for the purposes of “promoting and maintaining their health and well-being”. She submitted:

1. It is arguable that a ‘person responsible’ could refuse to consent to treatment that is extraordinary, excessively burdensome, intrusive or futile on the basis that it would not promote the health and well-being of the person. This could include withdrawal of existing treatment.

2. However, the authority of the ‘person responsible’ arises only where treatment is proposed and a decision is required regarding consent or otherwise to that treatment. The authority does not apply to making a plan for the future withholding of treatment.

34. In respect of consenting to a plan that treatment should not be provided Ms Rogers submitted that consistently with the decision of O’Connor J in FI, that decision and an end-of-life plan or palliative care plan incorporating that decision could only be made by a guardian where the person lacks the capacity to make the decision.

35. Ms Rogers questioned whether a guardian with a health care function would be properly authorised to make a decision to withdraw or to limit treatment and submitted that for the avoidance of doubt, the Tribunal should provide the guardian with a specific function of making an “end-of-life health care plan” or authorising “advance care planning”. She supported this submission with reference to a number of previously decided matters:

1. In the matter of WK v Public Guardian (No. 2) [2006] NSWADT 121 (20 April 2006), the Administrative Review Tribunal decided that a health care function might encompass end-of-life decisions but did not interpret the function in that way, “in the absence of some clear indication that that is what the Guardianship Tribunal intended”.

2. In the matter of BAH [2007] NSWGT 1 (5 February 2007), the Guardianship Tribunal was of the view that a guardian with the function of making health care decisions could not consent to decisions such no CPR and that such a decision would require a specific “end-of-life health care function”.

3. In the matters of YID [2007] NSWGT 19 (19 October 2007); QAN [2008] NSWGT 19 (23 September 2008) and QAX [2009] NSWGT 11 (18 December 2009) the Tribunal gave a guardian an “end-of-life health care function” or an “advanced health care function”.

Reasoning

36. We decided to exercise our discretion to make a guardianship order for Mr LZB for the following reasons.

1. As a result of the FACS Policy Documents introduced by FACS earlier this year, unless a guardian is appointed with appropriate authority, in the event that Mr LZB goes into cardiac arrest the staff of the Specialist Supported Living Centre will have no choice but to apply CPR until Mr LZB is in “the care and presence of a Doctor, including FACS Career Medical Officers, or a NSW Ambulance Officer and the Doctor or Ambulance Officer makes a clinical judgment that CPR would be futile” [FACS position on Resuscitation Plans March 2018].

2. The undisputed evidence, which we accept, is that the use of CPR on Mr LZB is likely to cause him significant injury due to his fragile physical condition as a result of his long-term diagnosis of osteoporosis. It was also not challenged that Mr LZB has a number of other physical conditions that limit his prognosis and affect the quality of his life.

3. FACS submitted that the requirement of the appointment of a guardian to approve Mr LZB’s Not for Resuscitation Order remedies an error that had been identified in the use of not-for-resuscitation orders across NSW in FACS operated facilities where a “person’s responsible”, and not guardians, were authorising such orders.

1. The FI decision does not, however, mandate that in all cases involving a person without decision making capacity, a guardian must be appointed if decisions are to be made to withdraw life sustaining treatment. The decision (at [46]) acknowledges that:

“the law recognises that clinical judgements are involved, and that there is no need to continue treatments which are therapeutically ineffective, or are extraordinary, excessively burdensome, intrusive, or futile. The law does not assume that a patient’s best interests are served by extending the person’s life by whatever means are available and for as long as possible. As to these principles see, variously, Northbridge v Central Sydney Area Health Service [2000] NSWSC 1241; (2000) 50 NSWLR 549 at 553-554; Airedale National Health Service; Auckland Area Health Board v Attorney General [1993] 1 NZLR 235 at 252-253; Re G [1997] 2 NZLR 201; Messiha v South East Health [2004] NSWSC 1061 at [22]-[28]; Hunter Area Health Service v Marchlewski (2000) 51 NSWLR 264 at 268 [91].”

2. In subsequent proceedings involving the same matter (FI v New South Wales Trustee and Guardian (No. 2) [2010] NSWADT 43, at [2]), it was noted that:

[2]   The decision in September 2008 dealt with the issue of the applicable law where the Public Guardian (now the New South Wales Trustee and Guardian) works within a statutory framework. The common law position was relatively clear. There was an argument about whether the common law position applied within the statutory framework. The essence of that ruling is that it did.

3. In a subsequent decision of the Supreme Court of NSW (Application of Justice Health; Re a Patient [2011] NSWSC 432 (Brereton J)), the same considerations that have been held to apply to the proposed “withdrawal” of treatment were applied in relation to the “withholding” of treatment ([6]–[8]). His Honour considered that subject to an issue not relevant to the current proceedings, in the circumstances of that case in which a declaration was sought that it was lawful for Justice Health to issue a “not for resuscitation order” in respect of a patient and where the unanimous medical opinion was that further active treatment would be futile, it was unnecessary for the application to be brought to the Court (at [8]). His Honour noted (at [7]):

It seems to me that it would be a rare case in which the Court would, by mandatory injunction, require a medical practitioner to render to a patient a particular form of medical treatment, which the practitioner genuinely and reasonably thought was not warranted or appropriate in the circumstances. It may be that there are some cases in which unanimity of medical opinion would be such that no other course of action than administering a particular form of treatment would be justifiable but this, at least, is not one of them.

4. These accepted legal principles would appear to form the basis of the approach taken at paragraph 3.2.4 of the NSW Ministry of Health Policy Directive on Using Resuscitation Plans in End of Life Decisions in circumstances where there has not been sufficient time to hold discussions about resuscitation. As previously noted, it is expressly stated in the NSW Ministry of Health Policy Directive that not having a Resuscitation Plan does not necessarily mean that resuscitation is a default action that must be applied in all situations and that clinical judgment should be used where resuscitation is manifestly inappropriate and/or the patient is deceased. Further, the Policy Directive allows for Resuscitation Plans, even within the setting of a public hospital, to be valid for up to three months in certain circumstances (paragraph 3.6)

4. FACS’s position is that it is not bound by the NSW Ministry of Health Policy Directive. Whilst we accept that that is FACS’s position, it was unclear from the evidence the extent to which any alternative approach other than the mandated application of CPR was considered in the development of the new policy approach having regard to the common law principles.

5. Mr Nguyen indicated that if, prior to a life-threatening event, a GP makes a decision that life-saving treatment should not be performed, that decision is not applicable to the actions of FACS staff. There was no evidence as to the potential for involvement of FACS Career Medical Officers in decision making about resuscitation for residents of FACS operated services prior to the point at which a resident has a medical event leading to cardiac arrest and whether that decision could form a basis for decisions by FACS staff. This is despite that fact that the FACS Policy Documents clearly indicate that at the time of such a medical event, a FACS Career Medical Officer may make a decision that CPR may be ceased if they make a “clinical judgement that CPR would be futile” [FACS position on Resuscitation Plans March 2018].

6. We decided that a guardianship order should be made for Mr LZB so that a guardian is authorised to make critical decisions in advance as to what resuscitation efforts should be made if he has a cardiac arrest. Without such an appointment, the FACS policy requiring its staff to apply CPR will continue to be applied and on the basis of the evidence available to us and in Mr LZB’s particular circumstances, that would be burdensome and intrusive.

37. In respect of Ms Rogers’ submissions to the effect that a general “health care” function may be insufficient to provide authority to the guardian to make a decision about withholding treatment we took into account the following:

1. In the matter of FI, O’Connor DCJ referred to the practice that had been adopted by the (then) Guardianship Tribunal, in consideration of the comments in the matter of WK, of giving a guardian a specific function of making health care decisions regarding end-of-life decisions. He states (at [52]):

Where, as is the usual practice in this State, the guardian derives his or her powers from a limited guardianship order, a general reference to the right to make health care decisions as it was expressed in Guardianship Tribunal orders made prior to the decision is WK is, I consider, adequate to support decisions relating to the withdrawal of medical treatment. The difficulty, as I see it, that may flow from the inclusion of the second sentence specifically referring to this subject, as has been occurring since WK, is that, if it is not done universally, there may be arguments that the general power is to be read down.

2. The decision in FI was made on 16 September 2008. O’Connor DCJ was satisfied that a health care function was sufficient to make decisions about the withdrawal of treatment and the making of advanced care plans. That decision post-dates the decisions in the matters of WK, BAH, YID (above) and the Tribunal is satisfied that it preferable to follow the decision in the latter matter.

3. The FI matter was considered in the matter of QAN and whilst the Tribunal on that occasion gave the guardian a function of making “end-of-life” health care decisions it noted that O’Connor DCJ was of the view that “a general health care function might be adequate to support decisions relating to the withdrawal of medical treatment”.

4. The matter of QAX involved a person for whom substitute decisions had been made under the Mental Health Act2007 (NSW) which makes no provision for advanced care planning. The Tribunal was of the view that it was appropriate to appoint a guardian. The FI matter is not discussed in the matter of QAX. However, we are of the view that as decisions regarding Mr QAX were being made under the Mental Health Act, different considerations may have applied in that matter.

5. The Tribunal recently conducted a hearing in which the application was made in the context of the FACS policy and the need for a guardian to make end-of-life decisions. In that matter (HAE [2018] NSWCATGD 10 (30 May 2018) the Tribunal was of the view that the guardian should be given authority to make health care decisions for Ms HAE and that this would allow the guardian to make decisions including the decisions relating to the withholding of treatment.

38. Taking into account the considerations set out above, we were of the view that:

1. The matters referred to by Ms Rogers do not compel a decision that a general health care function is inadequate to authorise a guardian to consent to an end-of-life or not-for-resuscitation type of health plan.

2. It is in the best interests of persons who are unable to make their own decisions on these matters that as far as possible the Tribunal follows a consistent approach to authorising guardians to make such decisions.

3. As was stated by O’Connor DCJ, including specific authority under the health care function could result in the authority given otherwise to be read down.

4. The more recent decisions of the Administrative Decisions Tribunal and this Tribunal have endorsed the view a guardian with a general health care function is authorised to consent to the withdrawal or withholding of treatment.

5. To provide consistency, it is appropriate to follow the line of recent decisions and to endorse a view that a guardian with a general health care function is authorised to consent to the withdrawal or withholding of treatment.

39. Accordingly, we decided that the guardian should be given authority to make health care decisions for Mr LZB. This will allow the guardian to make decisions including the decisions relating to the withholding of treatment.

40. We did not include any other decision-making functions in the order. We are satisfied that Mr QYB and Ms NAB are already regarded by all health care professionals in contact with their son as his persons responsible under Pt 5 of the Act. This already provides them with legal authority to make all major medical treatment decisions for Mr LZB.

Who should be appointed?

41. The Tribunal must be satisfied that any person appointed as a private guardian meets the following requirements in accordance with s 17(1) of the Act. She/he must:

1. have a personality generally compatible with the personality of the person under guardianship;

2. have no undue conflict of interest (particularly financial) with those of the person; and

3. be able and willing to exercise the functions of the order.

42. In deciding whether a person is able to undertake the role of guardian, the Tribunal must consider whether the proposed guardian is able, having regard to the circumstances, to exercise the functions in accordance with the principles set out 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, [66]).

43. Mr QYB and Ms NAB proposed that they be appointed respectively as guardian and alternative guardian for Mr LZB. We were not advised of any conflict of interest that would impact on their appointment.

44. We were satisfied on the basis of their evidence and presentation at the hearing that Mr QYB and Ms NAB have a loving relationship with Mr LZB and a history of making decisions that take into account his circumstances and best interests. We were satisfied that they are ready and able to carry out the function of the guardianship order and we appointed Mr QYB as the guardian, and Ms NAB as the alternative guardian, for Mr LZB.

How long should the order last?

45. While an initial guardianship order can be made for a period of up to one year from the date on which it was made (s 18(1)(a) of the Act), an initial order can be made up to three years if the Tribunal is satisfied that:

1. the person the subject of the order has permanent disabilities, and 

2. it is unlikely that the person will become capable of managing his or him/his person, and 

3. there is a need for an order of longer duration than the relevant period specified in sub-s (1): s 18(1B) of the Act.

46. We decided to make a guardianship order for three years on the basis that each of the requirements of s 18(1B) of the Act were satisfied. Mr LZB has permanent disabilities and, due to his profound intellectual disability, will never become capable of managing his person. The evidence before us indicated that a review of Mr LZB’s palliative care plan, including consideration of whether or not to authorise a not-for-resuscitation order, takes place on a yearly basis. Decision making about these issues will therefore be required on an ongoing basis necessitating the need for an order of longer duration than one year. We therefore made the order for the available maximum period of three years.

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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