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

NKH is 70 years old and lives in regional NSW in an aged care facility. His wife is FZH, and his son is EAH.
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.
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.
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.
On 22 January 2022 the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading NKH

Details

AGLC: NKH [2022] NSWCATGD 12
Case: [2022] NSWCATGD 12
Decision Date: 03 March 2022

CaseChat Overview and Summary

The case of NKH involved an application for consent to special medical treatment and a review of a guardianship order. The subject of the case, NKH, is diagnosed with Lewy Body Dementia, Parkinson’s disease and psychosis, and was residing at an aged care facility. The application sought consent for the use of clozapine, an antipsychotic medication, to treat NKH's hallucinations and psychotic disorder. The guardianship order, which had been made in January 2021, was under review to determine if it should be extended or allowed to lapse.

The legal issues before the court were whether the proposed use of clozapine constituted special medical treatment and, if not, whether the person responsible for NKH could provide consent. Additionally, the court had to decide if there was a need for a continued guardianship order, considering NKH's capacity to consent to major medical treatments.

The court concluded that the use of antipsychotic medication, such as clozapine, to treat psychosis is not classified as special medical treatment. Furthermore, it was determined that the person responsible for NKH was capable of providing consent to the proposed treatment. Given that NKH could consent to major medical treatment and there were no other decisions that required the intervention of a guardian, the court decided not to extend the guardianship order. Consequently, the guardianship order was allowed to lapse.

The court dismissed the application for consent to special medical treatment and allowed the guardianship order to lapse, effective from 3 March 2022. This decision recognises the person responsible's ability to provide consent to the treatment needed for NKH's condition, while also acknowledging that ongoing guardianship was unnecessary.

Orders

Orders of the court

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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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.