NFS

[2014] NSWCATGD 35

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	NFS [2014] NSWCATGD 35
Hearing dates:	28 October 2014
Decision date:	28 October 2014
Jurisdiction:	Guardianship Division
Before:	Tearle B, Senior Member (Legal) Staples M, Senior Member (Professional) Cootes J, General Member (Community)
Decision:	Guardianship order renewed for six months and varied; Public Guardian appointed with travel function.
Catchwords:	GUARDIANSHIP - End of term review of guardianship order - community treatment order - subject person able to make some decisions - no need for accommodation, health care or medical or dental functions to continue - delusions - travel function still required - control of passport by financial manager. PROCEDURAL FAIRNESS - opportunity to be heard - notice of hearing - hearing in the absence of the subject person - subject person provided views to Tribunal Officer - requirement to consider views.
Legislation Cited:	Guardianship Act 1987 (NSW) Mental Health Act 2007 (NSW)
Category:	Principal judgment
Parties:	Mr NFS (subject person) The Public Guardian
File Number(s):	56906
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. The Tribunal reviewed the previous guardianship order for Mr NFS made on 18 July 2014, and renewed it for a period of six months. The Tribunal reappointed the Public Guardian as Mr NFS's guardian. The Tribunal varied the order, so that the Public Guardian now has the authority to make decisions for Mr NFS about his travel arrangements.

Background

1. Mr NFS, who is 37 years old, is currently living with his sister, Ms TJS, in her home at Sydney. Mr NFS is reported to have a mental illness.

1. Mr NFS has been under guardianship since 18 July 2014, when the Guardianship Division of the NSW Civil and Administrative Tribunal (NCAT) appointed the Public Guardian to be his guardian for a period of three months. The Tribunal then gave the Public Guardian the authority to make decisions for Mr NFS concerning his accommodation, health care, medical and dental treatments, travel and passport, and advocacy. The Tribunal also gave the guardian the additional authority to call on others to assist in implementing its decisions concerning Mr NFS's accommodation, and to override Mr NFS's objections to major or minor medical treatment.

1. At a hearing conducted on 28 July 2014, the Tribunal made a financial management order for Mr NFS, and committed the management of his financial affairs to the NSW Trustee. The Tribunal ordered that this financial management order is to be reviewed within six months.

1. On 28 October 2014, the Tribunal reviewed Mr NFS's guardianship order of 18 July 2014.

What did the Tribunal have to decide?

1. The questions which the Tribunal must decide are:

(1)   Is Mr NFS 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?

(2)   Should the Tribunal make a further guardianship order and, if so, what order should it make?

(3)   Who should be the guardian?

(4)   How long should the order last?

Conduct of the hearing on 28 October 2014

1. Mr NFS declined the opportunity to participate in the hearing. When the Tribunal made contact with Mr NFS by telephone to enable him to participate, he stated:

"I am not going to participate in this hearing because I don't want to legitimate it."

1. Mr NFS then ended the telephone connection, without giving the Tribunal any opportunity to outline to him the nature and the purpose of the hearing.

1. However, on 21 October 2014, Mr NFS had spoken by telephone with an officer of the Tribunal Registry. Mr NFS then told the Registry officer that he does not need a guardian, and that he can make his own decisions.

1. The Tribunal was satisfied that Mr NFS had received adequate notice of the hearing, and that he had an opportunity to participate. In these circumstances, the Tribunal was satisfied that there would be no breach of procedural fairness if the hearing were to proceed. Accordingly, the Tribunal conducted the hearing, even though Mr NFS was not actively participating. Nevertheless, the Tribunal took proper account of his views, as relayed in his earlier telephone conversation with an officer of the Tribunal Registry. It was evident to the Tribunal that Mr NFS opposed the making of any further guardianship order.

1. Shortly before the hearing commenced, the Tribunal received a detailed and thoughtful submission from Ms LGS, one of Mr NFS's two sisters. Mr NFS's mother, Mrs DYN, and his other sister, Ms TJS, indicated their full support for the views Ms LGS had expressed.

1. As soon as the Tribunal received that submission, it made arrangements for a copy to be forwarded by email to the Principal Guardian with the Office of the Public Guardian. During the hearing, it emerged that the Principal Guardian was unable to take part. The Duty Guardian participated in the hearing by telephone, in the place of the Principal Guardian. The Tribunal then asked a Registry officer to forward a copy of Ms LGS's submission by email to the Duty Guardian. The Tribunal summarised Ms LGS's submission for the Duty Guardian during the hearing, and Mrs DYN and Ms TJS each outlined the views Ms LGS had expressed in her written submission.

Is Mr NFS someone for whom the Tribunal could make a further order?

1. The Tribunal must first consider whether Mr NFS is 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.

1. When it made its previous guardianship order, the Tribunal accepted evidence that Mr NFS has a diagnosis of schizoaffective disorder, and was a mentally ill person within the meaning of the Mental Health Act 2007.

1. Mr PVQ, Mr NFS's Case Manager with the Community Mental Health Centre, confirmed in a report prepared on 27 October 2014 that Mr NFS has a severe mental illness, being a schizoaffective disorder. Mr NFS has also been non-compliant with his medication, and has little insight into his need for medication.

1. Mr PVQ gave evidence during the hearing that Mr NFS's decision-making capacity is very impaired by his delusions. Mr PVQ observed that Mr NFS becomes particularly delusional after he has consumed alcohol. Mr PVQ noted that Mr NFS is currently subject to a Community Treatment Order, which will be in force until 18 December 2014.

1. The Tribunal is satisfied that Mr NFS continues to have a disability which prevents him making important life decisions. He is a person for whom the Tribunal could make a further guardianship order.

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

1. As was noted above, it was evident to the Tribunal that Mr NFS opposed the making of any further guardianship order.

1. In a report prepared for this hearing, the Principal Guardian with the Office of the Public Guardian recommended that Mr NFS's guardianship order should be allowed to lapse. The Principal Guardian expressed the view that Mr NFS is highly intelligent and very articulate, and he noted that Mr NFS is strongly opposed to being subject to a guardianship order. The Principal Guardian added that Mr NFS appears to be currently stable, and is concerned with organising his life in Sydney.

1. On the other hand, Mrs DYN, Ms LGS and Ms TJS had indicated that they strongly supported the renewal of Mr NFS's guardianship order. In their view, Mr NFS needs a guardian to make decisions concerning his travel arrangements.

1. The Tribunal determined that Mr NFS continues to need someone to make decisions on his behalf, and in his best interests. In short, Mr NFS remains in need of a guardian. The reasons for the Tribunal's decision appear below in the context of the discussion of the functions of the guardian.

1. In reaching its decision, and to the extent to which this was possible, the Tribunal also took account of the matters outlined by Parliament in section 14 of the Guardianship Act, and in particular:

• the views of Mr NFS;
• the importance of preserving Mr NFS's existing family relationships; and
• the practicability of services being provided to Mr NFS without the need for the making of such an order.

What functions should the guardian have?

Travel arrangements

1. When the Tribunal made the earlier guardianship order for Mr NFS on 18 July 2014, he was in Beijing, China, and was, at the time, detained in a ward of a Beijing Hospital. During the hearing on 18 July 2014, the Tribunal heard evidence that Mr NFS believed that he is a Chinese citizen, and that he had been granted asylum in China. The Tribunal on 18 July 2014 accepted that it was imperative for Mr NFS to be repatriated to Australia as soon as possible for his own safety, and for further treatment of his mental illness. The Tribunal then gave the Public Guardian the authority to make decisions concerning Mr NFS's travel and passport.

1. In his written report, the Principal Guardian indicated that the Public Guardian has taken possession of Mr NFS's passport. The NSW Trustee has separately confirmed that it is holding Mr NFS's passport securely, as requested by the Public Guardian.

1. The Principal Guardian advised that Mr NFS had informed the Public Guardian that he has no immediate plans to return to China, because he has insufficient funds, and his visa has expired. Mr NFS did indicate to the Public Guardian that he may return to China in the longer term, and he might seek residency.

1. During the hearing, the Duty Guardian stated that the Public Guardian is of the view that there is no immediate need for a guardian to make travel and passport decisions for Mr NFS.

1. In her written submission to the Tribunal, Ms LGS referred to her brother's delusions that he had been granted political asylum in China. While Mr NFS was still in Beijing, staff of the Australian Embassy in Beijing met with him, and informed him that his visa had been cancelled, he had not been granted political asylum, and he must therefore return to Australia. Ms LGS reported that the Department of Foreign Affairs arranged with relevant officials in China for a full forcible medical evacuation of Mr NFS at a cost of approximately $60,000.

1. Ms LGS informed the Tribunal that Mr NFS did eventually return to Australia of his own choice, but he did this only four days before the full forcible medical evacuation was to have been implemented.

1. Ms LGS reported that, since his return to Australia, Mr NFS has consistently indicated that he wishes to return to China. When Mr NFS's parents recently offered to help Mr NFS to purchase a motor vehicle, he declined the offer, because he would only sell the vehicle and travel back to China.

1. Ms LGS, with the support of Mrs DYN and Ms TJS, asked the Tribunal to renew Mr NFS's guardianship order with a travel function. Ms LGS thoughtfully summarised her views in this way:

We do not want [Mr NFS] not to travel but would like someone with authority to be able to consider his travel plans and mental state and provide either approval for him to travel safely in a well-planned matter or assistance in organising such a travel plan.

1. Ms TJS emphasised her support for the views Ms LGS had expressed. Ms TJS gave evidence that her brother is still obsessed, and fixated, about returning to China. According to Ms TJS, Mr NFS believes that China wants him to return to that country as a "saviour" of the Chinese people. In Ms TJS's view, Mr NFS is still highly delusional about his wish to return to China.

1. Mrs DYN gave evidence that her son has previously tried to obtain asylum in the Chinese Embassy in Australia. Mrs DYN reported that her son is convinced that the Chinese government wants him to return there. Mrs DYN also gave evidence that her son still says that he will be in China "soon". According to Mrs DYN, her son's fixation on China has been constant for the past two years.

1. After hearing the concerns of Ms LGS, Ms TJS and Mrs DYN, the Duty Guardian confirmed that it remains the Public Guardian's view that Mr NFS has no immediate plans to travel, and that he does not need to have a guardian with a travel and passport function.

1. Mr PVQ then informed the Tribunal that he understands that Mr NFS is applying for Chinese citizenship. Mr PVQ also reported that medication compliance had been a major issue when Mr NFS travelled to China earlier in 2014.

1. The Tribunal accepted the concerns expressed by members of Mr NFS's family, and the evidence of his delusional belief that China wants him to return to that country as a "saviour" of the Chinese people. The Tribunal also attached particular weight to Mrs DYN's evidence that her son still says that he will be in China "soon", and that Mr NFS's fixation on China has been constant for the past two years.

1. The Tribunal formed the view that Mr NFS continues to need a guardian with the authority to make decisions to ensure that, if he does travel beyond Australia, he can do so in a manner that will be safe for him. The Tribunal was satisfied that Mr NFS's guardian should be given the function of making decisions concerning his travel arrangements. Under this function, the guardian is authorised to make decisions in Mr NFS's best interests as to whether, and under what circumstances, he is to travel beyond Australia, including decisions as to:

• his fitness to travel;
• the custody of his passport;
• travel arrangements, including the authority to arrange visas and other travel documents;
• escort arrangements; and
• liaison with consular officials.

Other functions not required

1. Mr NFS is currently living with his sister, Ms TJS, in her home.

1. Mr PVQ reported that the Community Mental Health Centre had been helping Mr NFS to find different accommodation, but Mr NFS is not keen for that service to assist him. Mr PVQ indicated that there are problems with Mr NFS continuing to live with his sister, Ms TJS.

1. Ms TJS acknowledged that it would be untenable for her brother to continue to live in her family home. However, Ms TJS agreed that brother no longer needs a guardian to make accommodation decisions, because he is able and free to select his own accommodation. Mrs DYN agreed with the views that her daughter had expressed.

1. Mr PVQ confirmed that Mr NFS is currently subject to a Community Treatment Order, which will be in force until 18 December 2014. Mr PVQ also reported that Mr NFS has no other physical health issues. In Mr PVQ's view, Mr NFS is now able to make his own decisions concerning his health care, and his medical and dental treatments. Mrs DYN, Ms TJS, and the Duty Guardian, on behalf of the Public Guardian, agreed with this view.

1. The Duty Guardian also informed the Tribunal that the Public Guardian considers that Mr NFS is able to advocate on his own behalf. Accordingly, it is the Public Guardian's view that Mr NFS does not need a guardian with the function of advocacy.

1. After taking account of the evidence presented by Mr NFS's guardian and the other participants, and the views they had expressed during the hearing, the Tribunal concluded that Mr NFS does not need to have a substitute decision-maker on matters relating to his accommodation, health care, medical or dental treatments, or advocacy.

Who should be the guardian?

1. Mrs DYN and Ms TJS each spoke in support of the reappointment of the Public Guardian to be Mr NFS's guardian.

1. There was no proposal before the Tribunal that a friend or family member be appointed as a guardian for Mr NFS. Accordingly, the Tribunal renewed the guardianship order for Mr NFS, reappointing the Public Guardian.

How long should the order last?

1. On a review of an earlier guardianship order, the Tribunal may make a guardianship order for a period of up to three years. However, the Tribunal may make an order for up to five years, if the person the subject of the order has permanent disabilities, is unlikely to become capable of managing his or her person, and there is the need for an order longer than three years.

1. The Tribunal decided to make an order for a period of six months, given the nature and extent of Mr NFS's disability, and the real possibility that his condition will continue to improve with care and treatment.

**********

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: 07 November 2014