Miss BCG
[2015] NSWCATGD 61
•15 January 2015
|
New South Wales |
Case Name: | Miss BCG |
Medium Neutral Citation: | [2015] NSWCATGD 61 |
Hearing Date(s): | 15 January 2015 |
Date of Orders: | 15 January 2015 |
Decision Date: | 15 January 2015 |
Jurisdiction: | Guardianship Division |
Before: | J Simpson, Senior Member (Legal) |
Decision: | 1. The guardianship order for Miss BCG made by the Tribunal on 27 February 2013 is renewed and varied so that the order is now as follows. |
Catchwords: | GUARDIANSHIP – review of guardianship order – need for accommodation and services decisions due to pregnancy |
Legislation Cited: | Civil and Administrative Tribunal Act 2013 (NSW), ss 36(1), 64(1)(d) |
Cases Cited: | Nil |
Texts Cited: | Nil |
Category: | Principal judgment |
Parties: | Miss BCG (subject person) |
Representation: | Separate Representative |
File Number(s): | 49922 |
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
The Tribunal renewed the existing guardianship order and reappointed the Public Guardian for six months. The guardian will make decisions about advocacy, accommodation, health, services, and legal services issues. This includes coercive powers in relation to hospitalisation and medical treatment related to Miss BCG’s pregnancy, childbirth, and after birth care.
Background
Miss BCG is a 19-year-old woman who has been living with her partner in regional NSW. Since May 2012, she has been under the guardianship of the Public Guardian and under financial management by the NSW Trustee and Guardian. At that time, she was living in a group home and under the parental responsibility of the Minister for Community Services. She had a mild to moderate intellectual disability and a severe reactive attachment disorder. The Tribunal appointed the Public Guardian to advocate for her as she moved out of ministerial responsibility.
In February 2013, the Tribunal reviewed and continued the guardianship order for a further two years with the guardian to make decisions about accommodation, health, services, and legal services issues. Miss BCG was in custody following several alleged assaults on workers in the previous six months. She had been refusing consent for assessments and to engage with disability services.
Now, Miss BCG was living with her partner and shortly due to give birth to a child. At her request, the guardianship review was brought forward to January to avoid coinciding with the birth of the baby.
What did Tribunal have to decide?
The questions which have to be decided by the Tribunal are
Is Miss BCG someone for whom the Tribunal could make an order because she continues to have a disability which prevents her from being able to make important life decisions?
Should the Tribunal make a further guardianship order and if so, what order should be made?
Who should be the guardian?
Does Miss BCG continue to have a disability which prevents her from being able to make important life decisions?
A psychological assessment carried out in 2013 stated that Miss BCG had primary diagnoses of severe attachment disorder and mild to moderate intellectual disability. She had a range of long-standing behaviours of concern including serious assaults on staff, bouncing (throwing herself around the bed), making grandiose statements, unusual thoughts and engaging in a fantasy world. She had a very difficult early childhood and was placed in foster care. After 10 years in one foster placement, she was removed from it due to long-standing physical and psychological harm by her foster family. She showed significant executive functioning problems across all areas including inhibiting impulsive responses, adjusting to changes in routines or tasks, modulating emotions, planning and organising, problem-solving approaches, and monitoring her own behaviour. Her cognitive functioning had declined over time and at age 15 years 11 months, her functioning was indicative of low mild to upper moderate intellectual disability. Her presentation was consistent with her complex trauma history.
The Tribunal was clear that Miss BCG continues to be a person who, because of a disability, is unable to make important life decisions and is otherwise partially incapable of managing her person.
Should the Tribunal make a further guardianship order?
In the hearing, Miss BCG was initially opposed to having a further guardianship order although her attitude to this appeared to soften as the hearing progressed and she was able to get some clearer understanding of guardianship and rapport with the Public Guardian’s representative.
The Public Guardian had initially recommended that the order could lapse but by the time of the hearing was clear that the order should continue. The Public Guardian’s initial understanding, as reflected in the report of a general practitioner, was that, with the range of support around her, Miss BCG would be able to cope with the baby. The Public Guardian was not aware that this was in dispute.
However, shortly prior to the hearing, the Tribunal received a number of further reports from the service provider, a public hospital in regional NSW, and Family and Community Services.
A casework manager from the service provider reported that after the February 2013 hearing, Miss BCG continued to live in the service provider's semi-independent group home at regional NSW with 24-hour support. In October 2014, Miss BCG moved into a rented house, also in regional NSW, with her partner and she was pregnant. The service provider received mixed messages about whether Miss BCG wanted support services to continue. Miss BCG had attended medical appointments and prenatal classes in relation to her pregnancy but had refused external services and mental health supports despite it being anticipated that Community Services would become involved in relation to the baby. There were reports of Miss BCG engaging in bouncing whilst pregnant. Although Miss BCG had made progress in some areas of her life, her planning and decision making continued to remain a concern. This concern was heightened by the traumatic experience Miss BCG may face following the birth of a child. The service provider suspected that she would require extensive and ongoing mental health supports as well as support with accommodation. The service provider recommended that guardianship should continue.
Ms Z, social worker team leader, and Dr Y, consultant obstetrician, from the public hospital, reported that Miss BCG was due to give birth on 4 February 2015. They advocated for the continuation of guardianship. Miss BCG had had a number of presentations to the Maternity Assessment Day Unit and one inpatient admission during her pregnancy. She left hospital against medical advice on one occasion. On admission with possible ruptured membranes, Miss BCG found needles extremely distressing and at times refused treatment that may have been for the benefit of herself or the baby. It was difficult to obtain accurate information from Miss BCG. There was a concern about her ability to understand medical information and make decisions about care. The service provider had expressed concerns about Miss BCG’s ability to cope with the pain and stress of giving birth. The hospital needed to be able to override objections to treatment by Miss BCG if necessary.
A child protection caseworker and a manager of client services at Community Services reported that Miss BCG had consistently refused to engage with Community Services in relation to her unborn child. They had major concerns about the safety of Miss BCG and the child in view of her mental health and behaviour and long-standing reluctance to engage with mental health professionals. Community Services was concerned that mental health issues were escalating as the pregnancy progressed. Miss BCG’s disability and mental health issues were impacting on her capacity to prepare for motherhood. Community Services was also concerned about Miss BCG’s ongoing contact with her previous foster family to whose influence she remained vulnerable.
The Tribunal was very clear that guardianship needed to continue to seek to protect Miss BCG’s interests in the current period of great change in her life with the pending birth of the child and the active interest of Community Services. The guardian needed wide ranging functions including advocacy (for example with Community Services and the National Disability Insurance Scheme), accommodation (including in relation to hospitalisation related to childbirth), services, legal services (including in relation to potential Children's Court proceedings) and healthcare, and medical consent.
In view of Miss BCG’s mental health issues, and the concerns raised by Ms Z and Dr Y, the Tribunal accepted that the guardian should have the capacity to insist that Miss BCG remains in hospital and accept medical treatment in relation to her pregnancy, childbirth and afterbirth care. In view of the range of evidence in relation to Miss BCG’s disability and mental health problems and the report of Dr Y and Ms Z, the Tribunal accepted that any objection to these treatments by Miss BCG would flow from a lack of understanding of the nature of or reason for the treatment. The Public Guardian was willing to accept the authority to override objections to treatment.
The Guardian’s authority to override objections does not include insertion of an Implanon contraceptive rod. Any decisions about this will need to be made within the normal structure of the consent regime of the Guardianship Act 1987 (NSW).
The Tribunal would hope that the coercive functions will not need to be used. From the discussion in the hearing with the representative of the Public Guardian, it was readily apparent that the Public Guardian representative would not rush to use these functions. However, the Tribunal accepted that it was in Miss BCG’s interests that these functions be available to the guardian if needs be.
With the current order being very much focused on issues around Miss BCG’s childbirth, the Tribunal confined the order to 6 months and will then review it.
In the absence of alternative, the Tribunal was clear that it should reappoint the Public Guardian.
One further issue the Public Guardian should look at is whether victims compensation has been sought on behalf of Miss BCG for the abuse that she suffered in foster care.
Confidentiality of some evidence
The Tribunal had two requests for reports to be kept confidential. Ms Z requested that her and Dr Y’s report be withheld from Miss BCG. The concern was that the contents of the document would be extremely distressing for Miss BCG and possibly result in her disengaging from obstetric care which was vital for the health and well-being of Miss BCG and her baby. The preservation of her relationship with Dr Y was important.
The child protection caseworker and a manager of client services at Community Services asked that their report be kept confidential. They were concerned that the information in the report would increase Miss BCG’s stress level and be potentially traumatic to her. This may heighten the risk to her unborn baby due to Miss BCG’s “bouncing routine where she will throw herself onto her stomach for hours at a time”.
Section 64(1)(d) of the Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act) says:
If the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, it may…make an order prohibiting or restricting the disclosure to some or all of the parties to the proceedings of evidence given before the Tribunal, or of the contents of a document lodged with the Tribunal…
In exercising this power, the Tribunal saw itself as to be guided by the principles in s 4 of the Guardianship Act, including Miss BCG’s interests being given paramount consideration. Also, in their practice and procedure, all divisions of the Tribunal have a guiding principle, “To facilitate the just, quick and cheap resolution of the real issues in the proceedings”: CAT Act, s 36(1).
The Tribunal discussed the requests for confidentiality with Miss BCG’s separate representative and with the Public Guardian. They agreed with the Tribunal’s tentative thinking, which it then adopted. This was to release the two confidential reports to the separate representative and the guardian with an order that the contents of these documents not be disclosed to Miss BCG without the Tribunal’s approval.
The Tribunal took this course because it accepted the rationales advanced in the requests for confidentiality and therefore it was in Miss BCG’s interests that the Tribunal keep the documents confidential from her at least until after the birth of her child. However, the Tribunal did seek to raise with Miss BCG in a general way the issues that came out of the reports and which might impact on the guardianship order the Tribunal might make.
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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
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