MKM

[2021] NSWCATGD 24

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

MKM [2021] NSWCATGD 24

Hearing dates:

18 June 2021

Date of orders:

18 June 2021

Decision date:

18 June 2021

Jurisdiction:

Guardianship Division

Before:

S G McCarthy, Senior Member (Legal)
Dr G Jamieson, Senior Member (Professional)
S Fogg, General Member (Community)

Decision:

1. A guardianship order is made for MKM.

2. The Public Guardian is appointed as the guardian.

3. This is a continuing guardianship order for a period of 12 months from 18 June 2021.

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

FUNCTIONS:

5. The guardian has the following functions:

a) Health care

To decide what health care MKM may receive.

b) Medical/Dental consent

To make substitute decision about proposed minor or major medical or dental treatment, where MKM is not capable of giving a valid consent.

c) Restrictive Practices

To give or withhold consent as to whether the following restrictive practices should be used to influence MKM’s behaviour:

1. Chemical restraint

CONDITIONS:

6. The conditions of this order are:

a) Standard Condition

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

b) Restrictive Practices

The guardians(s) may only consent to the use of the types of restrictive practices permitted under this order to influence MKM’s behaviour.

(i) as a last resort to prevent MKM harming himself or others; and

(ii) in accordance with a care and support plan that incorporates:

a) the behaviours that are being addressed by the restraints;

b) reasons why the restraints are necessary;

c) non-pharmacological strategies in place;

d) provision for review, including by an appropriate medical specialist.

Catchwords:

GUARDIANSHIP – application for a guardianship order – whether subject person is a person in need of a guardian – subject person has depression – subject person living in supported accommodation – need for medication to deal with aggressive behaviours – restrictive practices function – chemical restraint – need for medical and dental consent decisions – need for healthcare and services decisions – no private guardian available – Public Guardian appointed – order made.

Legislation Cited:

Guardianship Act 1987 (NSW), ss 3(1)-(2), 4, 14, 14(2)

Cases Cited:

IF v IG [2004] NSWADTAP 3

Texts Cited:

None cited.

Category:

Principal judgment

Parties:

006: Guardianship Application

MKM (the person)
ZYT (applicant)
Public Guardian

Representation:

Nil.

File Number(s):

NCAT 2011/00419763

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

GUARDIANSHIP APPLICATION

What the Tribunal decided

1. The Tribunal appointed the Public Guardian as the guardian for MKM for a period of 12 months to make decisions about his health care, medical and dental treatment and restrictive practices being chemical restraint as set out in the Tribunal's order.

Background

2. MKM is aged 84 years and resides in supported accommodation in Northwest Sydney. ZYT, Director of Care at the supported accommodation, made an application for guardianship concerning MKM.

The hearing

3. 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.]

Does ZYT have standing to bring the application?

4. A person has standing to bring an application if he or she is:

1. The person who is the subject of the application;

2. The Public Guardian; or

3. Any other person who, in the opinion of the Tribunal, has a genuine concern for the welfare of the person.

5. The Tribunal found that ZYT has standing to make the application for a guardianship order because she has a genuine concern for the welfare of MKM.

Settlement

6. The Tribunal may, where it considers appropriate, use resolution processes to bring the parties to a settlement. There was no conflict in this matter.

What did the Tribunal have to decide?

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

• Is MKM 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?

• 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 MKM 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?

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 he/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”: the Act, s 3(1). 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 (NSW); 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: the Act, s 3(2).

9. Dr Z stated in a report dated 14 April 2021 that MKM cannot analyse or understand or make executive decisions. He scored 14/30 in a Mini-Mental State Examination.

10. The Tribunal is satisfied that based on this assessment that MKM has a disability which prevents him making some important life decisions. He is a person for whom the Tribunal could make a guardianship order.

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

11. 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;

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.

12. 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).

13. MKM did not attend the hearing. ZYT stated that MKM would not understand the proceedings and is not able to effectively participate in the hearing. The NSW Trustee and Guardian is the financial manager for MKM.

14. ZYT stated that MKM has depression and exhibits aggressive behaviours. He has been prescribed Citalopram and Olanzapine. Medication has been prescribed to deal with MKM’s aggressive behaviours. ZYT stated that there is a need for consent to be given for this medication which is a chemical restraint as it is administered to deal with MKM’s aggressive behaviours. Steps were taken for MKM to be taken off the medication but his aggression then increased.

15. The Tribunal decided on the basis of all of this evidence that a guardianship order should be made. MKM has been prescribed major medications and is not able to give informed consent for these medications. He is not able to make health care decisions. MKM has been prescribed major medication to deal with his aggressive behaviours. This medication is considered to be a restrictive practice being a chemical restraint as it is administered to deal with MKM’s aggressive behaviours. There is a need for a guardian to give substitute consent for these major medications.

16. What decision making functions should be included in the order: health care, medical and dental treatment and restrictive practices being chemical restraint.

Who should be the guardian?

17. ZYT proposed that the Public Guardian be appointed as the guardian for MKM. No person proposed to be appointed as guardian. As there is no private person available to be appointed as guardian, the Tribunal appointed the Public Guardian.

How long should the order last?

18. An initial guardianship order can be made for a period of up to one year from the date on which it was made.

19. The Tribunal decided to make an order for 12 months because the order should be reviewed after a reasonable period of time.

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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: 24 May 2022