NBF

[2017] NSWCATGD 7

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

NBF [2017] NSWCATGD 7

Hearing dates:

10 May 2017

Date of orders:

10 May 2017

Decision date:

10 May 2017

Jurisdiction:

Guardianship Division

Before:

J Simpson, Senior Member (Legal)
Dr B McPhee, Senior Member (Professional)
J Koussa, General Member (Community)

Decision:

1. A guardianship order is made in respect of Ms NBF.
2. Mrs CMX is appointed as the guardian.
3. This is a continuing guardianship order for a period of 6 months from the date of this order.
4. This is a limited guardianship order giving the guardian custody of Ms NBF to the extent necessary to carry out the functions below.

FUNCTIONS

5. The guardian has the following functions:

a) Accommodation - To decide where Ms NBF may reside. The guardian may authorise others including members of NSW Police and the Ambulance Service of NSW to:-

i)   take Ms NBF to a place approved by the guardian;
ii)   keep her at that place; and
iii)   return her to that place should she leave it.

b) Health Care - To decide what health care Ms NBF may receive.
c) Medical and Dental Consent - To make substitute decisions about proposed minor or major medical or dental treatment where Ms NBF is not capable of giving a valid consent.
d) Services - To make decisions about services to be provided to Ms NBF.

CONDITIONS

6. The conditions of this order are:

a) In exercising this role, the guardian shall take all reasonable steps to bring Ms NBF to an understanding of the issues and to obtain and consider her views before making significant decisions.

Catchwords:

GUARDIANSHIP – application for a guardianship order – involuntary patient – need for order – family member appointed as guardian

Legislation Cited:

Guardianship Act 1987 (NSW), ss 15(3), 17(1)
Mental Health Act 2007 (NSW)

Category:

Principal judgment

Parties:

Ms NBF (subject person)
Ms OPB (applicant)
The NSW Public Guardian

File Number(s):

65574

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

1. We appointed Mrs CMX for six months as guardian for her sister Ms NBF to make decisions about accommodation, health care and medical and dental consent issues. This includes a coercive accommodation power.

Background

2. Ms NBF is a 73-year-old woman with a mental illness who has been an involuntary patient at a public hospital for many years. She lives in a rehabilitation unit at the hospital.

3. There is now a proposal for Ms NBF to move out from the hospital under the Pathways to Community Living initiative and Ms OPB, hospital social worker, applied for a guardianship order. Ms NBF’s financial affairs have been under the management of the NSW Trustee and Guardian since 1992.

4. Ms NBF has family members in Queensland including her sister, Mrs CMX, and a number of adult children.

What did the Tribunal have to decide?

5. We had to decide:

• Does Ms NBF have a disability which prevents her from being able to make some important life decisions?

• Should we make a guardianship order and if so, what order should we make?

• Who should be the guardian?

• How long should the order last?

Does Ms NBF have a disability which prevents her from being able to make some important life decisions?

6. Dr Z, psychiatry registrar, reported that Ms NBF has a long-standing history of chronic schizophrenia with pronounced positive and negative symptoms, including bizarre, grandiose, and persecutory delusions. She was unable to make decisions in relation to her accommodation or medical issues.

7. We accepted that Ms NBF has a mental illness preventing her from being able to make important life decisions.

Should we make a guardianship order?

8. There are major issues to be worked out about Ms NBF’s future accommodation.

9. Ms NBF spoke briefly with us and told us that she hates it at the hospital and wants to live in her own home. She did not want to move to Queensland where family members are.

10. Ms OPB explained that Ms NBF is a candidate for the Pathways to Community Living initiative. In her case, this may involve her moving to a 10-bed unit at a retirement village at north Sydney. This is a specialist transitional mental health unit where she may stay for up to two years and from where she may move to an aged care facility.

11. Mrs CMX was clear that she would like to bring her sister up to Queensland so that Mrs CMX and other family members could be much more involved with her life. She was interested in exploring options for mental health aged care facilities in Queensland. Mrs CMX said that she been a regular visitor to Ms NBF at the public hospital but was less able to do this now than before. Ms NBF’s children still cared about her but did not have the money to visit her in Sydney. Ms NBF had had her first breakdown when the children were aged about 10.

12. Dr Y, consultant psychiatrist, said that it would be more difficult for Mrs CMX to move to a facility in Queensland than in NSW. It would slow matters down

13. We accepted that a guardianship order is needed so that future accommodation options can be carefully considered for Ms NBF. The guardian would need authority over accommodation and health decisions. As recommended by the hospital, this should include a coercive accommodation authority in case it is needed.

14. While Ms NBF remains an involuntary patient under the Mental Health Act 2007 (NSW), the guardian will not be able to override hospital decisions about her hospitalisation or mental health care. The guardianship order is more focused on futures planning for Ms NBF in relation to discharge from hospital.

Who should be the guardian?

15. We had to be satisfied that any person appointed as a private guardian:

1. has a personality generally compatible with Ms NBF’s personality,

2. has no undue conflict of interest (particularly financial) with those of Ms NBF, and

3. is able and willing to exercise the functions of the order.

16. If there is no private person qualified to appoint as guardian or if the circumstances otherwise make it inappropriate to appoint a private person, we can appoint the Public Guardian. (Guardianship Act 1987 (NSW), sections 15(3) and 17(1))

17. Mrs CMX asked to be appointed as his sister’s guardian. She emphasised that she did not want her sister to have a guardian who was not involved in her life. If she was guardian and it was proposed that her sister moved to a transition unit, she would need to see the unit and talk to the doctors.

18. Mrs CMX said that she has had very poor communication from the hospital over time. She had sought but not received regular telephone contact. She had only become aware of the Tribunal hearing a few days before. She had sought help from the hospital in relation to exploring mental health aged care facilities in Queensland but had not received any assistance.

19. Mrs CMX said that she had been visiting her sister two to three times a year and had last visited in 2015. She had brought down Ms NBF’s daughter and her family who Mrs CMX had tracked down. This visit had not gone well because Ms NBF still thought of her daughter as a little girl and so could not accept that her daughter was present.

20. Mrs CMX accepted that Ms NBF has a mental illness but questioned whether it was the type that the hospital says. Mrs CMX said that she is able to have a normal conversation with Ms NBF and pull her back so that she realises that things she is saying are imagined. She was keen that more be done to explore her sister’s condition and she wanted to have her sister close so that she could be hands-on assisting with this.

21. The evidence from the hospital suggested that Mrs CMX had only had intermittent contact with Ms NBF over time and that she may have a conflict of interest in wanting her sister in Queensland, including potentially wanting a carer’s pension.

22. In the hearing, the Tribunal found it difficult to get a clear or substantial basis for the hospital’s perspective about Mrs CMX having limited contact. Ms OPB has only been involved recently. Dr Y reported a prior social worker as having said that there had been efforts to contact the family over the years but not much contact had ensued.

23. Dr Y said that she had spoken with Mrs CMX 18 months ago. She did not favour Mrs CMX being appointed as guardian due to her limited contact and her having spoken about the advantages of receiving a carer’s pension. Dr Y felt that Mrs CMX did not accept her sister’s mental health diagnosis which led to concerns about whether, under her guardianship, Mrs CMX would receive the appropriate mental health treatment.

24. Dr Z, psychiatry registrar, said that Mrs CMX was, primary carer for Ms NBF under the Mental Health Act.

25. Mrs CMX denied that she was motivated by a carer’s pension. She said that, if Ms NBF moved to Queensland, she would be in residential care. Due to difficulties with communication with the hospital, she had made complaints about social workers in the past.

26. We found Mrs CMX convincing in relation to her ongoing concern for her sister. We accepted that her motivation for wanting to pursue the idea of a move to Queensland was based on an admirable desire for her and other family members to have an active role in her sister’s life. We accepted that she has pursued ongoing contact and had difficulties over time receiving communication from the hospital. While she might have an unrealistic view of his sister’s mental state, we saw this is something that could be adequately addressed through regular and appropriate communication between Mrs CMX and treating professionals.

27. Ms NBF mental state would pose challenges to maintaining a positive relationship with her. However, we accepted Mrs CMX’s evidence that she has been able to communicate positively with her sister.

28. With Mrs CMX being focused on mental health aged care rather than herself acting as carer, the issue of a conflict of interest in relation to a carer’s pension does not arise.

29. A guardian need not act in a vacuum. As well as advice from treating professionals, Mrs CMX would be able to obtain support from the Private Guardian Support Unit at the Public Guardian NSW.

30. We accepted that Mrs CMX was able to exercise the functions in the guardianship order and otherwise qualified to be guardian.

How long should the guardianship order last?

31. We made a guardianship order for six months to allow time for Mrs CMX to obtain from treating professionals and elsewhere the information that she needs to consider accommodation options and related matters.

Recommendation to the NSW Trustee and Guardian

32. Ms NBF has substantial savings held by the NSW Trustee and Guardian. The Tribunal recommends that the NSW Trustee and Guardian consider paying for travel and accommodation expenses to allow Mrs CMX to spend a significant time in Sydney meeting with her sister and healthcare professionals and visiting any proposed accommodation option including the transitional unit at north Sydney.

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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: 04 July 2017