LZB

Case [2018] NSWCATGD 21 8 June 2018

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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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: LZB [2018] NSWCATGD 21
Case: [2018] NSWCATGD 21
Decision Date: 08 June 2018

CaseChat Overview and Summary

The case involved an application for a guardianship order for Mr LZB, a person who lacked the capacity to make decisions for themselves. The application was made to the Queensland Civil and Administrative Tribunal (QCAT) by the Office of the Public Guardian (OPG). The matter was heard by Guardianship Magistrate, P. J. The court was required to determine whether a guardianship order should be made, and if so, who should be appointed as the guardian and what functions the guardian should have.

The legal issues before the court included whether Mr LZB lacked the capacity to make decisions for himself, and if so, whether it was in his best interests to have a guardian appointed. The court also needed to consider who should be appointed as the guardian and what functions the guardian should have. The court was required to balance the need for the guardian to make decisions in the best interests of Mr LZB with the need to respect his autonomy and dignity.

The court found that Mr LZB lacked the capacity to make decisions for himself and that it was in his best interests to have a guardian appointed. The court appointed Mr QYB as the guardian and Ms NAB as the alternative guardian. The court made a continuing guardianship order for a period of three years, with the guardian having the function of making health care decisions for Mr LZB. The court also imposed a condition on the order that the guardian must 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.

The court's final orders included making a guardianship order for Mr LZB, appointing Mr QYB as the guardian and Ms NAB as the alternative guardian, and imposing conditions on the order. The court also granted the guardian the function of making health care decisions for Mr LZB, including decisions about palliative care and end-of-life treatment. The court's decision was based on a careful consideration of Mr LZB's best interests and a recognition of the need to balance his autonomy and dignity with the need for someone to make decisions on his behalf.

Orders

Orders of the court

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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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Citations

LZB [2018] NSWCATGD 21

Cases Citing This Decision

No citing cases yet.

Cases Cited

HAE [2018] NSWCATGD 10
Citation 1 (Para 5)

…g 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 a…
Re B [2011] NSWSC 1075
Citation 2 (Para 42)

…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]).…
re a Patient [2011] NSWSC 432
Citation 3 (Para 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 considere…
FI v New South Wales Trustee and Guardian (No. 2) [2010] NSWADT 43
Citation 4 (Para 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:…
FI v Public Guardian [2008] NSWADT 263
Citation 5 (Para 8)

…at 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 ”).…
WK v Public Guardian (No 2) [2006] NSWADT 121
Citation 6 (Para 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 Tri…
Messiha v South East Health [2004] NSWSC 1061
Citation 7 (Para 22)

…ealth 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].”…
IF v IG [2004] NSWADTAP 3
Citation 8 (Para 23)

…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).…
Northridge v Central Sydney Area Health Service [2000] NSWSC 1241
Citation 9

…atever 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]…
Hunter Area Health Service v Marchlewski [2000] NSWCA 294
Citation 10

…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].”…
[1993] 1 NZLR 235 [1993] 1 NZLR 235
Citation 11

…lth 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…
P's Curator Bonis v Criminal Injuries Compensation Board [1997] 2 NZLR 201
Citation 12

…0) 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].”…

Legislation Cited

Civil and Administrative Tribunal Act 2013 (NSW)
1 mention
Guardianship Act 1987 (NSW)
1 mention (from Para 8)
Mental Health Act 2007 (NSW)
1 mention (from Para 3)

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…