MZG

[2020] NSWCATGD 74

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

MZG [2020] NSWCATGD 74

Hearing dates:

20 August 2020

Date of orders:

20 August 2020

Decision date:

20 August 2020

Jurisdiction:

Guardianship Division

Before:

K A McMahon, Senior Member (Legal)
J L Newman, General Member (Community)

Decision:

The guardianship order for MZG made on 7 August 2019 has been reviewed. The order now is as follows:

1. The Public Guardian is appointed as the guardian.

2. This is a continuing guardianship order for a period of 12 months from 20 August 2020.

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

FUNCTIONS:

4. The guardian has the following functions:

a) Accommodation

To decide where MZG may reside.

b) Services

To make decisions about services to be provided to MZG.

c) Restrictive Practices

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

Environmental restraint

CONDITIONS:

5. The conditions of this order are:

a) Standard Condition

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

b) Restrictive Practices Condition

The guardian(s) may only consent to the use of the types of restrictive practices permitted under this order to influence MZG’s behaviour:

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

(ii) in accordance with a behaviour support plan which has been developed by a behaviour support practitioner after having conducted a functional behavioural assessment upon MZG, and which is reviewed regularly (and no less than every 12 months) and/or reviewed as soon as practicable if there is a change in circumstances which requires the plan to be amended.

Catchwords:

GUARDIANSHIP – end of term review of guardianship order – restrictive practices function – use of restraint in aged care that is, however, governed by NDIS rules – subject person wants to move out of aged care facility – restrictions on tobacco use – effect of tobacco on episodes and medication – environmental restraint – subject person and sibling oppose order – views outweighed by evidence and risk – proposed guardian lacks insight and has fixed views – Public Guardian appointed

Legislation Cited:

Guardianship Act 1987 (NSW), ss 3(1)-(2), 4, 4(a), 14, 14(2), 14(2)(b)-(d), 15(3), 17(1)

National Disability Insurance Scheme (Restrictive Practices and Behaviour Support) Rules 2018 (Cth)

Cases Cited:

C S and M Y v the Guardianship Tribunal and the Public Guardian (Supreme Court (NSW), Windeyer J, 29 November 1999, unrep)

HZC [2019 NSWCATGD

IF v IG [2004] NSWADTAP 3

P v D1 & Ors [2011] NSWSC 257

Re B [2011] NSWSC 1075

Texts Cited:

Nil

Category:

Principal judgment

Parties:

008: Review of Guardianship Order

MZG (the person)
Public Guardian (appointed guardian)
KBG (carer)

Representation:

G Yeo, Separate Representative

File Number(s):

NCAT 2014/00383827

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

What the Tribunal decided

1. We reviewed the previous guardianship order for MZG made on 7 August 2019 and renewed it for a period of 12 months. The Public Guardian was reappointed as guardian to make decisions about accommodation, services and restrictive practices as set out in the Tribunal’s order.

Background

2. MZG is a 57-year-old Aboriginal man who lives at an aged care facility in regional NSW. He has lived there since June 2018. His mother is deceased. He has two brothers, Mr Z and KBG.

3. MZG has an intellectual disability, chronic schizophrenia and is vision impaired.

4. On 6 August 2018 the Tribunal made a guardianship order for 12 months appointing the Public Guardian with the functions of access, accommodation, health care, medical and dental treatment and services. On the same date the NSW Trustee and Guardian was appointed to manage MZG’s finances.

5. The guardianship order was reviewed by the Tribunal on 25 June 2019 and confirmed with the same functions for a period of 12 months.

6. The hearing before us was the end of the term review of the guardianship order made on 25 June 2019.

The hearing

7. 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.]

What did the Tribunal have to decide?

8. On reviewing the current guardianship order the Tribunal may renew, renew and vary the order or determine that the order is to lapse.

9. The questions to be considered by the Tribunal are:

• Is MZG someone for whom the Tribunal could make an order because he continues to have a disability which prevents him 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?

• How long should the order last?

Is MZG someone for whom the Tribunal could make a further order because he continues to have a disability which prevents him from being able to make important life decisions?

10. Section 14 of the Guardianship Act 1987 (NSW) provides that the Tribunal may make a guardianship order for a person if it is satisfied that he or 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”: Guardianship Act, s 3(1)-(2). 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: Guardianship Act, s 3(2).

11. When the previous order was made, the Tribunal found that MZG has a disability being an intellectual disability and chronic schizophrenia and was unable to make important life decisions.

12. MZG’s view is that he is able to make his own decisions. This view was expressed to us also by Mr Z. Mr Z explained that MZG’s previous incapacity arose in the context of their mother’s death in 2018 and a consequential period of instability for MZG. Mr Z told us that MZG is well now.

13. Before us was a report from Mr Y, Psychologist dated 28 February 2020. Mr Y’s assessment is that MZG has a number of cognitive and physical limitations resulting from his disabilities. His capacity continues to be impacted by his schizophrenia. He has difficulties with memory, concentration and problem solving. Mr Y considers that MZG is unable to weigh up options and the consequences of decisions.

14. Further Mr Y reports that MZG has osteoporosis and chronic obstructive pulmonary disease which together with his vision impairment significant restrict his mobility. The combined effects of his cognitive and physical limitations are such that Mr Y considers that MZG will require a high-level of support if he moves from the aged care facility.

15. Ms X, Director at the aged care facility told us that MZG is currently stable within the supported environment provided by the aged care facility. She said that MZG, however, fluctuates in his views and can be changeable in her behaviour. Ms X’s evidence is that without supports in place, MZG’s condition will likely deteriorate rapidly in the community placing himself at great risk.

16. Mr Geoffrey Yeo’s submission was that MZG continues to be in need of a guardian. Mr Yeo supported the guardianship order being renewed. Mr Yeo accepted Mr Y’s assessment in his submission in support of an order.

17. We accepted the evidence of the health professionals which was consistent with previous findings of the Tribunal and supported by Mr Yeo’s submission.

18. We are satisfied that MZG continues to have a disability which prevents him making important life decisions. He is a person for whom we could make a further guardianship order.

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

19. The Tribunal must consider all of the following matters set out in s 14(2) of the Guardianship Act before exercising its discretion to make a further 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.

20. 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 Guardianship Act. When undertaking this task the Tribunal may be guided by the principles that are set out in s 4 of the Guardianship Act (see IF v IG [2004] NSWADTAP 3).

21. MZG’s view is that he no longer needs a guardian.

22. The Public Guardian provided a report dated 13 August 2020. The Acting Principal Guardian participated in the hearing. This evidence was to the following effect:

• MZG remains in need of a guardian and it is recommended that the order be renewed for 12 months with the functions of accommodation and services.

• There are likely to be accommodation decisions requiring a guardian. MZG wants to move out of the aged care facility. His National Disability Insurance Scheme (NDIS) support coordinator is looking at appropriate alternative options. Mr Y’s assessment raises the option of possibly a group home or independent living in a flat or similar if this can be done without placing MZG’s health at risk.

• Further MZG has had short stays at a rental accommodation, a supportive living service for older people, in another regional NSW suburb. Ms X and Dr X do not support MZG returning to the seniors rental accommodation. There are ongoing funding issues relating to MZG’s NDIS package. Both an accommodation and services function are required.

• A health care function is not required. No health care decisions have been made by the Public Guardian. His general practitioner has advised he is providing his own consents for medication.

• The access function was previously added to MZG’s guardianship order as there had been issues between MZG and his brother, Mr Z. The Public Guardian has not been advised of any further issues and no access decisions have been made. The recommendation is that this function not continue.

23. At the hearing, the Acting Principal Guardian also supported the need for the guardian to have a restrictive practices function on the basis of the evidence of Mr Y and Ms X. On the basis of this evidence, MZG’s consumption of tobacco is currently limited to six cigarettes a day. Mr Y states that excessive consumption of tobacco in MZG’s case has been linked to episodes of schizophrenia likely due to the tobacco inhibiting the effectiveness of medication. Ms X’s evidence was that whilst generally agreeable to the current regime of three cigarettes in the morning and three in the evening, MZG can be changeable in his views and is vulnerable to exploitation.

24. Ms X and Dr X supported the guardianship order being renewed. They expressed a high-level of concern about risk to MZG if he moves from the aged care facility to accommodation with insufficient supports.

25. In relation to the proposed restrictive practices function, Ms X submitted we should adopt the definitions contained in the National Disability Insurance Scheme (Restrictive Practices and Behaviour Support) Rules 2018 (Cth). She said that the aged care facility which is managed through a national charitable organisation is coming under these requirements. Ms X said that service providers for MZG, particularly if he moves from the aged care facility, will be subject to these requirements. She supports the need for the restrictive practice relating to his tobacco use. Ms X spoke of concerns about MZG’s mental state deteriorating and that when he is unwell, he experiences delusions which can place him at risk of harm from himself or others.

26. Dr X agrees about Mr Y’s comments about the effect of excessive consumption of tobacco on the efficacy of MZG’s medications.

27. Consistent with the Tribunal’s decision in HZC [2019 NSWCATGD, MZG’s restricted access to tobacco constitutes an environmental restraint in the circumstances requiring the consent of a guardian.

28. Mr Z did not support the guardianship order being renewed. Mr Z proposes that MZG come and live with him. Mr Z does not consider that any support services will be needed if MZG comes to live with him. Mr Z stressed that his brother is now well. He saw instability for his brother as something that has now passed.

29. Mr Geoffrey Yeo supported the guardianship order being renewed for accommodation, services and restrictive practices. Mr Yeo noted the competing accommodation options for MZG and concerns for his welfare.

30. We decided on the basis of all of this evidence that a further guardianship order should be made. MZG requires a guardian to weigh competing proposals for accommodation and to make a decision in his best interest. Closely linked to decisions about his accommodation, will be decisions about services. We accepted the submission of the Public Guardian in relation to the proposed functions for the guardian, including in relation to consents for restrictive practices.

31. Whilst we take into account the views expressed by MZG and Mr Z that there is no need for a guardian, we consider that this is outweighed by the evidence of the Mr Y, Ms X, Dr X and the Public Guardian indicating significant risk to MZG if we do not make a guardianship order. We accept Ms X’s evidence that MZG’s stability presently is linked to the high-level of supports that he is receiving. In our view MZG and Mr Z do not sufficiently appreciate this.

32. We accepted the evidence of Mr Y and Ms X in relation to the restriction to tobacco constituting an environmental restraint requiring the consent of a guardian.

33. There was no evidence relevant under ss 14(2)(b)-(c) of the Guardianship Act indicating that a guardianship order should not be made. The evidence relevant to s 14(2)(d) of the Guardianship Act supported an order being made to ensure that services were provided.

34. In addition to the matters set out in s 14(2) of the Guardianship Act, we had regard to the guiding principles set out in s 4 of that Act. The principles of most relevance were the need to protect MZG from neglect, abuse or exploitation and the need to encourage him so far as possible to live a normal life in the community. We also considered the importance of minimising any restriction to MZG’s freedom of decision and action. As s 4(a) of the Guardianship Act requires, we gave paramount consideration to MZG’s welfare and interests. Ultimately, we were satisfied on the basis of the evidence that MZG’s welfare and interests would be preserved only by the making of an order.

Who should be appointed as the guardian?

35. Mr Z proposed that he be appointed as the guardian.

36. The Tribunal has to be satisfied that any person appointed as a private guardian meets the following requirements in accordance with s 17(1) of the Act. He or she 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.

37. 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 Guardianship 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]).

38. In P v D1 & Ors [2011] NSWSC 257 the Supreme Court noted the importance of a proposed guardian being able to demonstrate insight and explain plans for how to act as guardian objectively and without conflict of interest.

39. The Tribunal is not able to appoint the Public Guardian as a person’s guardian if there is a private person who can be appointed: Guardianship Act, s 15(3).

40. The Supreme Court has held that:

“the proper meaning to be given to the section is to read it as saying that the Public Guardian should not be appointed in circumstances in which an order can properly be made in favour of another person. That requires not only that the person be willing, reliable and responsible, but that the appointment will result in the policy considerations and principles set forth in the Act being given effect (W v G [2003] NSWSC 1170, [25]).”

41. During the hearing, Mr Z was adamant that MZG is well and able to make his own decisions. Mr Z’s view is that MZG does not need a guardian, but if one was to be appointed, it should be him rather than the Public Guardian.

42. It was apparent from Mr Z’s evidence that he has a fixed view that MZG should come and live with him and if he did so, will not need any support services. He said he could make decisions if necessary, against MZG’s expressed wishes but thought that it would be unlikely that this will occur. He considered his appointment as guardian would not cause any conflict in his relationship with MZG.

43. Ms X and Dr X stress MZG’s vulnerability due to his disability. Ms X spoke of MZG’s tendency to want to please others and agree to suggestions made to him and also to change his mind.

44. Mr Yeo supported the appointment of the Public Guardian. Mr Yeo said that despite Mr Z’s good intentions it would be highly risky for him to suddenly take over his brother’s care in his home and make decisions for him.

45. Our view was that Mr Z’s appointment would not give effect to the policy objectives set out in s 4 of the Guardianship Act. He lacks insight into the impact of MZG’s disability on his capacity and his care needs. Mr Z has fixed views about MZG coming to live with him and would be unable to objectively consider other options and advice given.

46. We were accordingly precluded from appointing Mr Z as the guardian and appointed the Public Guardian.

How long should the order last?

47. On review, a guardianship order can be renewed for a period of up to three years from the date on which it was made. We made an order for 12 months, accepting the recommendation of the Public Guardian on this issue.

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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 October 2021