MHN

[2017] NSWCATGD 14

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	MHN [2017] NSWCATGD 14
Hearing dates:	27 June 2017
Date of orders:	27 June 2017
Decision date:	27 June 2017
Jurisdiction:	Guardianship Division
Before:	J D’Arcy, Senior Member (Legal) Dr I Beale, Senior Member (Professional) F Given, General Member (Community)
Decision:	1. The application by Mrs NZN and Mr OAN for a guardianship order to be made for Ms MHN is dismissed.
Catchwords:	GUARDIANSHIP – application for guardianship order – decision making capacity not affected by disability – need for order – utility of enduring guardianship appointment – application dismissed
Legislation Cited:	Guardianship Act 1987 (NSW), ss 3(1), 3(2), 14, 14(2)
Category:	Principal judgment
Parties:	Ms MHN (subject person) Mr OAN and Mrs NZN (applicants and parents) The NSW Public Guardian
Representation:	T Brook (separate representative for Ms MHN)
File Number(s):	64641
Publication restriction:	Decisions of the Guardianship Division of the Civil and Administrative Tribunal have been anonymised to remove any information that may identify any person involved in the Tribunal’s proceedings (s 65, Civil and Administrative Tribunal Act 2013 (NSW)).

REASONS FOR DECISION

What the Tribunal decided – Guardianship application

1. The Tribunal dismissed the application for guardianship in relation to Ms MHN made by Mr OAN and Mrs NZN.

Background

2. Ms MHN is 22 years old. She lives with her parents, Mrs NZN and Mr OAN, and her siblings in their family home at regional NSW.

3. Ms MHN is reported to have a diagnosis of primary dystonia and some Parkinsonian features. She is also reported to be non-verbal.

4. On 9 January 2017, Mr OAN and Mrs NZN applied to be appointed as their daughter’s joint guardians to assist her with medical and accommodation issues.

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. In an interlocutory hearing on 6 April 2017, the Tribunal ordered that Ms MHN be separately represented.

What did the Tribunal have to decide?

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

• Is Ms MHN 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 Ms MHN 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 she is “a person in need of a guardian”. A person in need of a guardian is “a person who because of a disability is totally or partially incapable of managing his or her person” (s 3(1) 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 she requires supervision or social habilitation (s 3(2) of the Act).

9. Dr Z is a general and neurology physician. She provided a report dated 5 June 2013 in which she stated that Ms MHN has a diagnosis of primary dystonia which causes difficulty in coordinating muscle movement, including limbs, trunk, head, neck, and swallowing. She has been treated with Deep Brain Stimulation by a European team in France.

10. According to Dr Y, neurologist, in a report dated 27 May 2011, Ms MHN’s condition has been complicated by the development of some features of Parkinsonianism.

11. Ms W, social worker, Social Work Neurology of a public hospital in Sydney, in a report dated 7 April 2016, stated that Ms MHN has limited ability to communicate verbally and most of her communication is through the written word, using her iPad. She showed an ability to comprehend questions and comments by responding with relevant and appropriate answers.

12. In a report dated 30 January 2017, Dr X stated that Ms MHN has severe generalised dystonia with significant cognitive impairment. He supported the appointment of a guardian for decision making around accommodation, medical and financial issues.

13. The Tribunal asked Ms MHN a number of questions about her general need for a guardian, specific instances when she felt disadvantaged by not having a guardian and her understanding of the difference between a guardianship order and an enduring guardianship appointment. Ms MHN was not able to respond verbally to the Tribunal. Using her communication device she provided answers to the Tribunal that indicated a clear understanding of the questions asked and her responses were consistent with an understanding of the difference between a guardianship order and an enduring guardianship appointment. She also clearly indicated why there was a need for someone to make decisions at times on her behalf because she wanted her parents “to be her voice at times”.

14. Mrs NZN stated that her daughter did not have a cognitive impairment or any developmental delay. The reference in Dr X’s report was the first time that the issue had been raised.

15. Mr Tim Brook, solicitor, Legal Aid NSW, separate representative for Ms MHN stated that her illness is cyclical and there are some periods when she is capable of making decisions and others where she is not. The complexity of the decisions that need to be made both medically and in relation to the National Disability Insurance Scheme (NDIS) and the wide range and large numbers of medical and service providers that she has to deal with need to be considered when determining her decision making capacity. He also referred to Dr X’s report which indicated a cognitive impairment. If Ms MHN is ill at a time that a decision needs to be made her (communication) disability is sufficiently significant for an order to be made.

16. The Tribunal found that apart from Dr X’s comment there is no evidence that Ms MHN has a cognitive impairment. The Tribunal noted that Dr X is a neurologist, not a psychologist and there is no evidence of results of cognitive testing in the material available to the Tribunal. Mrs NZN stated that there was no evidence that her daughter was cognitively impaired or developmentally delayed. Ms MHN’s communication with the Tribunal in the hearing did not demonstrate that she was cognitively impaired in any way. Her answers to the Tribunal’s questions were relevant and appropriate and demonstrated an understanding of the issues being discussed in the hearing.

17. Relying on Ms MHN’s presentation in the hearing, the evidence from her mother with whom she has a close relationship and the lack of any objective evidence of cognitive impairment, the Tribunal found that while Ms MHN has a physical disability and difficulties with verbal communication, her decision making capacity is not impaired.

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

18. The Tribunal must consider all of the following matters set out in sub-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;

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.

19. Although not necessary to do so, the Tribunal went on to consider the need for a guardianship order.

20. Mrs NZN stated that they had made the application because Ms MHN had commenced to have seizures from October 2016 and they were concerned that during a seizure she would not be able to consent to treatment for their daughter and they may be prevented from providing consent to treatment. Mr OAN and Mrs NZN each cited an instance of being prevented from being involved in decision making for their daughter by two separate staff members from a public hospital in regional NSW. However, they have no problems with any staff in the Sydney or other regional NSW hospitals and they are able to work with the medical staff as a team to achieve the best outcome for Ms MHN.

21. Mrs NZN explained that she had not been made aware of the possibility that her daughter could sign an enduring guardianship appointment instead of being the subject of a guardianship order.

22. Ms MHN explained that when she is well she communicates using her computer. She discusses her treatment with her mother and father. She referred to an occasion at the public hospital in regional NSW when she was upset because the doctors did not want her mother and father in the room and she could not talk. When the difference between an enduring guardianship appointment and a guardianship order was explained Ms MHN indicated very clearly that she would prefer an enduring guardianship appointment.

23. Mr Brook stated that Ms MHN would have capacity to make an enduring guardianship appointment based on his interactions with her and that arrangements would be made with Legal Aid for Ms MHN to execute an enduring guardianship appointment.

24. The Tribunal decided that there was no need for a guardianship order. Ms MHN indicated a preference for an enduring guardianship appointment and the Tribunal and Ms MHN’s separate representative were of the view that she understood the nature and effect of the appointment and would have capacity to appoint her parents as enduring guardians.

25. An enduring guardianship appointment would provide Ms MHN with more autonomy and control over her situation, would allow her to tailor the appointment to her needs and is the least restrictive option for her.

26. The Tribunal concluded that Ms MHN’s decision-making capacity was not affected by her disability and that there was no need for a guardianship order.

27. The Tribunal dismissed the application for the appointment of a guardian for Ms MHN made by Mr OAN and Mrs NZN.

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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: 11 August 2017