NKH

[2022] NSWCATGD 12

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

NKH [2022] NSWCATGD 12

Hearing dates:

3 March 2022

Date of orders:

3 March 2022

Decision date:

03 March 2022

Jurisdiction:

Guardianship Division

Before:

R H Booby, Senior Member (Legal)
Dr B McPhee, Senior Member (Professional)
F N Given, General Member (Community)

Decision:

The application for special medical treatment is dismissed after hearing.

The guardianship order concerning NKH made on 29 January 2021 is lapsed from 3 March 2022.

Catchwords:

CONSENT TO MEDICAL TREATMENT – application for consent to special medical treatment – subject person diagnosed with Lewy Body Dementia, Parkinson’s disease and psychosis – clozapine used as treatment for hallucinations and psychotic disorder – use of antipsychotic medication to treat psychosis is not special medical treatment – person responsible able to provide consent – application dismissed.

GUARDIANSHIP – end-of-term review of a guardianship order – whether a further guardianship order should be made – subject person resides at an aged care facility – person responsible able to provide consent to major medical treatment – no decisions that need to be made by a guardian – no order made – order allowed to lapse.

Legislation Cited:

Guardianship Act 1987 (NSW), ss 3(1)-(2), 4, 14, 14(2), 33, 25(6), 42, 42(2); Pt 5

Cases Cited:

IF v IG [2004] NSWADTAP 3

P v NSW Trustee and Guardian [2015] NSWSC 579

Texts Cited:

None cited.

Category:

Principal judgment

Parties:

003: Review of Guardianship Order

NKH (the person)
FZH (appointed guardian, spouse)
EAH (appointed guardian)
Public Guardian

007: Consent to Special Medical Treatment

NKH (the person)
DYN (applicant)
FZH (spouse)

Representation:

Nil.

File Number(s):

NCAT 2021/00004335

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

Application for Consent to Special Medical Treatment and Statutory Review of Guardianship order

Background

1. NKH is 70 years old and lives in regional NSW in an aged care facility. His wife is FZH, and his son is EAH.

2. On 29 January 2021 the Tribunal consented to special medical treatment for NKH for the period of six months. The treatment was Clozapine up to 150 mg daily and the Tribunal also consented to blood tests as part of the Clozapine protocols and consented to the guardians continuing to consent to the administration of the Clozapine.

3. On 29 January 2021 the Tribunal made a guardianship order appointing FZH and EAH jointly as NKH’s guardians for one year to make decisions for NKH about his accommodation, services, health care and medical/dental treatment. The guardians were also authorised to make decisions about NKH’s special medical treatment being the administration of Clozapine.

4. On 3 March 2021 the Tribunal made a financial management order and appointed FZH and EAH jointly and severally as the financial managers and ordered a review of the order in 12 months.

5. On 22 January 2022 the Tribunal reviewed the financial management order which it confirmed appointing FZH and EAH jointly and severally as the financial managers. On that date the Tribunal adjourned the hearing of the end of term review of the guardianship order.

6. The Reasons for Decision of the Tribunal upon adjourning the review of the guardianship order indicate the following:

1. The Tribunal was advised that NKH was prescribed Clozapine pursuant to the order made by the Tribunal in 2021 with consent provided by the guardians as permitted in the order of the Tribunal on 29 January 2021.

2. The expiration of the guardianship order made in 2021 would result in the expiry of the authorisation of the guardians appointed under that order to consent to ongoing treatment.

3. There was no application for special medical treatment before the Tribunal and therefore the Tribunal was unable to consider whether to again provide consent to the treatment and allocate authority to do so to guardians under a new guardianship order.

4. Section 25(6) of the Guardianship Act 1987 (NSW) has the effect that if a review of a guardianship is commenced, but not finalised, prior to the expiration of the period in the order, the order is taken to be extended until the completion of the review.

5. The Tribunal considered that it was in the best interests of NKH to adjourn the review of guardianship so that the current order and the authority to consent to the treatment would be extended, thus allowing NKH’s treatment to continue with the consent of the guardians, despite the lack of an application for the continuation of the treatment. Any application for special medical treatment could be considered at the time of the review of guardianship.

7. On 17 February 2022 the Tribunal received an application from Ms Z, the Care Manager at the aged care facility, seeking consent for medical treatment, being Clozapine, at 50 mg daily for NKH.

The hearing

8. Due to restrictions necessitated by the COVID-19 pandemic, the Tribunal’s hearings are currently being conducted by way of telephone and, where possible, video communication.

9. At the end of these Reasons for Decision is a list of witnesses who participated in the hearing. [Appendix removed for publication.]

10. Ms Z was not available for the hearing and DYN, Clinical Care Coordinator, was the substitute applicant for the special medical treatment.

APPLICATION FOR SPECIAL MEDICAL TREATMENT

What did the Tribunal have to consider?

11. When considering an application for special medical treatment, the Tribunal must be satisfied that:

1. It is appropriate for the treatment to be carried out;

2. The proposed treatment is the most appropriate form of treatment for promoting and maintaining the patient’s health and wellbeing;

3. The proposed treatment is the only or most appropriate way of treating the patient and it is manifestly in his best interests; and

4. The proposed treatment complies with any relevant National Health and Medical Research Council guidelines.

12. In considering the above questions, the Tribunal must have regard to the views of NKH and the applicant, and the objects of Pt 5 of the Guardianship Act.

13. The objects of Pt 5 of the Guardianship Act as set out in s 42 of that Act are:

1. to ensure that people are not deprived of necessary medical or dental treatment merely because they lack the capacity to consent to the carrying out of such treatment, and

2. to ensure that any medical or dental treatment that is carried out on such people is carried out for the purpose of promoting and maintaining their health and wellbeing.

14. The Tribunal must also have regard to the following matters, as outlined in s 42(2) of the Guardianship Act:

1. the grounds on which it is alleged that the patient is a patient to whom this Part applies,

2. the particular condition of the patient that requires treatment,

3. the alternative courses of treatment that are available in relation to that condition,

4. the general nature and effect of each of those courses of treatment,

5. the nature and degree of the significant risks (if any) associated with each of those courses of treatment, and

6. the reasons for which it is proposed that any particular course of treatment should be carried out.

Is the proposed treatment ‘special treatment’?

15. Section 33 of the Guardianship Act provides that special medical treatment includes any new treatment that has not yet gained the support of a substantial number of medical practitioners specialising in the area of practice concerned.

16. The Reasons for Decision of the Tribunal on 29 January 2021 when it consented to special medical treatment in the form of Clozapine for NKH indicate that it was satisfied that the medication constituted special medical treatment because NKH was diagnosed with Parkinson’s disease and Lewy Body dementia for which Clozapine was not a commonly accepted treatment.

17. A Medical Assessment Record for NKH compiled at a medical centre indicates that NKH is diagnosed with Lewy Body Dementia, Parkinson’s disease and psychosis as well as a number of physical conditions.

18. In a letter dated 25 November 2021 addressed to Dr Y, of another medical centre, Dr X, visiting psychiatrist, refers to NKH being prescribed Clozapine at 50 mg and as having hallucinations into which he has good insight. He notes that whilst he continues to have the hallucinations, NKH was stable.

19. During the hearing, Dr Y said that NKH has previously been housed in the mental health unit and there is extensive documentation to the effect that he is experiencing hallucinations as symptoms of a psychosis. He said that Clozapine is an accepted treatment for hallucinations resulting from a psychotic disorder and is not a treatment that is not accepted by specialist medical practitioners to treat that condition.

20. We accepted the evidence of Dr Y on this matter, and we were satisfied on that evidence that NKH is being prescribed Clozapine as accepted medication for a psychotic illness and therefore the medication is not special medication. The use of antipsychotic medication to treat a psychosis is major medication that requires the consent of a ‘person responsible’. There is no need for consent by the Tribunal.

21. Having decided that the Clozapine does not constitute special medical treatment we dismissed the application.

STATUTORY REVIEW OF GUARDIANSHIP ORDER

What did the Tribunal have to decide?

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

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

• Is NKH 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?

24. Section 4 of the Guardianship Act provides that it is the duty of everyone exercising functions under this Act with respect to persons who have disabilities to observe the following principles:

1. the welfare and interests of such persons should be given paramount consideration,

2. the freedom of decision and freedom of action of such persons should be restricted as little as possible,

3. such persons should be encouraged, as far as possible, to live a normal life in the community,

4. the views of such persons in relation to the exercise of those functions should be taken into consideration,

5. the importance of preserving the family relationships and the cultural and linguistic environments of such persons should be recognised,

6. such persons should be encouraged, as far as possible, to be self-reliant in matters relating to their personal, domestic and financial affairs,

7. such persons should be protected from neglect, abuse and exploitation,

8. the community should be encouraged to apply and promote these principles.

Is NKH 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?

25. Section 14 of the Guardianship Act provides that the Tribunal may make a guardianship order for a person if it is satisfied that he 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). 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).

26. The term “social habilitation” is not defined in the Act. In P v NSW Trustee and Guardian [2015] NSWSC 579, Lindsay J considered its meaning in the context of s 3(2) of the Act, at [303]

“The expression ‘social habilitation’ (in the context of references to ‘disability’, ‘restricted’, ‘major life activities’ and the word ‘requires’) may be taken to refer to a need for services to help a person to be, or become, able to function normally in community with others.”

27. As noted above, a medical assessment of NKH indicates that he has Parkinson’s disease, Lewy Body Dementia and psychosis. We were satisfied that the combined effect of those conditions is to prevent him managing his person such that the needs some assistance and supervision. He is therefore 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 be made?

28. 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.

29. 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 is guided by the principles that are set out in s 4 of the Guardianship Act (see IF v IG [2004] NSWADTAP 3).

30. In an appointed guardian’s statement and oral evidence, FZH and EAH provided the following information:

1. NKH is now permanently accommodated in the aged care facility.

2. If they are able to consent to NKH’s medical treatment as his ‘persons responsible’ there is no need for a guardianship order because there are no other decisions required of a guardian.

31. As noted in the section of these Reasons dealing with the application for special medical treatment, the use of Clozapine to treat a psychosis is major medical treatment to which a ‘person responsible’ can consent.

32. We were satisfied that there are no decisions required for NKH that cannot be made in the absence of a guardianship order and accordingly we decided that the guardianship order should be allowed to lapse.

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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: 19 September 2022