NMN

[2015] NSWCATGD 52

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	NMN [2015] NSWCATGD 52
Hearing dates:	20 October 2015
Date of orders:	20 October 2015
Decision date:	20 October 2015
Jurisdiction:	Guardianship Division
Before:	J Anderson, Senior Member (Legal) M Staples, Senior Member (Professional) A Wannan, General Member (Community)
Decision:	The Tribunal dismissed the application for a guardianship order.
Catchwords:	GUARDIANSHIP – where person is an involuntary patient in hospital – different opinions about person’s decision-making capacity – fluctuating capacity related to the use of alcohol – where there have been successive guardianship orders made – consideration of section 4 principles of the Guardianship Act 1987 (NSW) – consideration of factors under section 14 of the Guardianship Act 1987 (NSW) – where community and other supports available – order not in the person’s best interests – application for guardianship order dismissed.
Legislation Cited:	Guardianship Act 1987 (NSW), ss 3(1), 3(2), 4, 14, 14(2), 14(2)(a)(vi) Mental Health Act 2007 (NSW)
Cases Cited:	IF v IG [2004] NSWADTAP 3
Category:	Principal judgment
Parties:	Ms NMN (subject person) Ms KXN (applicant) The Public Guardian
File Number(s):	20145
Publication restriction:	Decisions of the Guardianship Division of the Civil and Administrative Tribunal have been anonymised to remove any information that may identify a 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 dismissed the application for a guardianship order in respect of Ms NMN, by Ms KXN.

BACKGROUND

2. Ms NMN is a 40-year old woman who, at the present time, is an involuntary patient at an inpatient rehabilitation unit in Public Hospital A in Regional NSW.

3. Prior to her hospitalisation, which included a period at Public Hospital B in Regional NSW, Ms NMN lived alone in her own home at Regional NSW. She has been in receipt of various services, including from community mental health services and various NGOs, including NGO 1, NGO 2, and NGO 3.

4. Ms NMN's parents are deceased. She has three siblings, including her sisters Mrs TDY and Ms TBN. Ms NMN's finances are managed by the NSW Trustee and Guardian.

5. Ms NMN has been the subject of orders made by the Tribunal on previous occasions. In particular, from 2005 to 2006, Mrs TDY was appointed as Ms NMN's guardian. From 2006 to 2008, the Public Guardian was appointed as her guardian. On 21 February 2008, the guardianship order was allowed to lapse by the Tribunal.

The hearing

6. 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?

7. The questions which had to be decided by the Tribunal were:

• Is Ms NMN someone for whom the Tribunal could make an order because she has a disability which prevents her from being able to make important life decisions?

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

• Who should be the guardian?

• How long should the order last?

LEGISLATIVE FRAMEWORK

8. Section 14 of the Guardianship Act 1987 (NSW) ('the Guardianship Act') provides that the Tribunal may make a guardianship order for a person if it is satisfied that he/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" (s 3(1), Guardianship Act). 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 (s 3(2), Guardianship Act).

9. If satisfied the subject person is a person "in need of a guardian", 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 guardianship order:

1. the views (if any) of:

1. the person, and

2. the person's spouse, and

3. the person's carer, and

4. the importance of preserving the person's existing family relationships, and

5. the importance of preserving the person's particular cultural and linguistic environments, and

6. the practicability of services being provided to the person without the need for the making of such an order.

10. 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). 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).

OVERVIEW OF THE EVIDENCE

11. The medical evidence indicates that Ms NMN has a diagnosis of schizophrenia, for which she has received mental health treatment for many years. She is a client of a Community Mental Health Services unit in Regional NSW, and is prescribed medication for her mental illness.

12. On 20 March 2015, Ms NMN was admitted to the mental health inpatient unit of Public Hospital B due to a deterioration in her mental state, increased alcohol consumption, and poor compliance with medication. Ms NMN subsequently entered an inpatient rehabilitation unit in Regional NSW for rehabilitation, where she remains as an involuntary patient.

13. The Tribunal had before it the oral and written evidence of medical professionals involved in Ms NMN's treatment and care. There were somewhat different opinions expressed as to Ms NMN's capacity to make decisions. In a report received on the day of the Tribunal hearing, Dr Z, VMO Psychiatrist at Public Hospital B, expressed her support for the appointment of a guardian for Ms NMN. Dr Z refers to Ms NMN's history of mental illness, including previous admissions to hospital. Dr Z also describes Ms NMN's dependency on others for assistance, lack of motivation, and tendency to become non-compliant with medication and support services.

14. Dr Z noted that cognitive testing (namely a Mini Mental State Examination) carried out on Ms NMN revealed a score of 29/30. Dr Z states that the high score reflects Ms NMN's pre-morbid good intelligence and does not take into account "the influence of the more subtle nature of the impairment associated with the negative symptoms of schizophrenia".

15. Dr Z's evidence was in contrast to the oral evidence of Dr Y, Psychiatry Registrar at Public Hospital A. Dr Y participated in the Tribunal hearing on behalf of Ms NMN's current treating team. Dr Y told the Tribunal that Ms NMN is doing very well at the present time. He said she is being treated with Clozapine medication to which she has responded positively. The view of the treating team is that Ms NMN has decision-making capacity. Dr Y, however, noted that when under the influence of alcohol, "all bets are off" in terms of Ms NMN's ability to make decisions. Dr Y said that Ms NMN's involuntary detention has recently been extended. However, there are arrangements being made in relation to Ms NMN's discharge from hospital. In particular, it is intended that Ms NMN will return to her property in Regional NSW, with formal support being provided by NGO 2.

16. Dr Y acknowledged the information provided by Ms NMN's family that while under guardianship in the past, Ms NMN functioned very well. However, Dr Y said he was uncertain as to whether Ms NMN's past stability was as a direct result of being under guardianship, or whether there were other contributory factors. In any event, Dr Y queried how a guardian could prevent a relapse into alcohol use or an association with certain people. Dr Y told the Tribunal that if a guardianship application were not already on foot, the treating team at Public Hospital A would not be submitting such an application to the Tribunal.

17. Mrs TDY and Ms TBN support the making of a guardianship order for Ms NMN. Mrs TDY told the Tribunal that when she was the guardian, there was a period of stability for Ms NMN; - so much so, the order was allowed to eventually lapse. Mrs TDY said that the authority and direction of a guardian is recognised by Ms NMN, and Mrs TDY is of the view that the appointment of a guardian would benefit Ms NMN and assist in the retention of services to support her.

18. Ms TBN also supports the appointment of a guardian for Ms NMN. However, Ms TBN does not support the appointment of Mrs TDY as guardian. In particular, Ms TBN states that there is no communication between her and Mrs TDY. She indicated that if Mrs TDY were to be appointed, she (Ms TBN) would not be consulted or informed about decisions affecting their sister. Ms TBN supports the appointment of the Public Guardian.

19. Ms NMN was able to express and articulate her views to the Tribunal. In response to Tribunal questions, Ms NMN indicated that she was supportive of the treating team's plan in relation to her discharge from hospital. She acknowledged that the involvement of services, namely from NGO 2 and NGO 3, was positive, and she is happy for them to be re-instituted upon her return to her home. In a conversation with a Tribunal officer prior to the Tribunal hearing, Ms NMN indicated that she was reasonably well at the present time, and that she could make decisions for herself and was not in need of a guardian. However, Ms NMN also indicated that if the Tribunal were minded to appoint a guardian for her, then it should be her sisters. However, she also acknowledged that her sisters do not get along with each other.

20. During the Tribunal hearing, Ms NMN inquired about joint guardianship, and was reluctant to nominate a specific sister for appointment. Rather, Ms NMN indicated that she was content for the Tribunal to make its decision.

TRIBUNAL REASONING

21. In all of its proceedings, the Tribunal is required to act in accordance with the principles set out in s 4 of the Guardianship Act, which in respect of people with disabilities requires that:

1. The person's welfare and interests are to be given paramount consideration;

2. The person's freedom of decision and freedom of action should be restricted as little as possible;

3. The person should be encouraged as far as possible to live a normal life in the community;

4. The person's views should be taken into account as much as possible;

5. The importance of preserving the person's family relationships and cultural and linguistic environment should be recognized;

6. The person should be encouraged to be as self-reliant as possible in respect of her personal, domestic and financial affairs;

7. The person should be protected from neglect, abuse and exploitation.

22. In coming to its decision, the Tribunal took into account all of the evidence, both oral and documentary. It also took into account the submissions of the parties and participants in the hearing, as well as the important principles set out in s 4 of the Guardianship Act.

23. The Tribunal formed the view that Ms NMN's situation has changed since the application was signed by the Applicant some three months ago. The treating term at that time had concerns about Ms NMN's return to living in the community in light of her history of non-compliance with treatment and services.

24. However, the Tribunal finds that as at the Tribunal hearing on 20 October 2015, Ms NMN had responded well to inpatient treatment and rehabilitation, and plans were underway for her discharge. There is a current dispute about whether Ms NMN lacks decision-making capacity. However, the Tribunal did not make a formal finding on this issue as it was not satisfied in any event that a guardianship order should be made for Ms NMN. In coming to this conclusion, the Tribunal noted that that there are no plans to change Ms NMN's accommodation in the community, and there is no evidence of any significant physical health concerns to which she is unable to provide informed consent. Whilst the Tribunal takes into account Ms NMN's history of refusing services, this appears to be connected with her lack of compliance with treatment. In this regard, the Tribunal notes there are other means to address this issue, including a community treatment order under the Mental Health Act, and/or the introduction of additional services to assist in medication administration.

25. The Tribunal was not persuaded by the submission that the success of a previous guardianship order warrants the making of a current guardianship order. Whist the Tribunal is able to take into account matters of the past, it must also have regard to the current circumstances. Having regard to s 14(2)(a)(vi) of the Guardianship Act, the Tribunal notes that there are plans in place for Ms NMN to return to the community with the reintroduction of services, of which Ms NMN has indicated her acceptance.

26. It is evident that Ms NMN loves both of her sisters, Mrs TDY and Ms TBN. The Tribunal finds that both sisters are interested and involved in her life, and have a genuine concern for her welfare. However, it is apparent that there is considerable conflict between them, which manifests itself in a lack of any communication. Indeed, Mrs TDY conceded to the Tribunal that she had not spoken to her sister, Ms TBN, for approximately 10 years. Therefore, it is difficult to see how Mrs TDY, if appointed as guardian for Ms NMN, could consult and communicate effectively with Ms TBN about important decisions affecting their sister. The Tribunal finds that Ms NMN's family is important to her and she relies on them for their informal support. Having regard to s 14(2)(a)(iv) of the Guardianship Act, a guardianship order, and in particular, an order appointing one sister and not the other, or alternatively, the Public Guardian, may have an adverse impact on Ms NMN's family relationships, to her detriment.

27. On all of the evidence before it, the Tribunal finds that at the present time there is an insufficient basis to make a guardianship order in respect of Ms NMN. Currently, she is complying with the plans being put in place for her return to the community, including the reinstitution of services. There is general agreement that Ms NMN's acceptance of services is affected by her compliance with medication. The Tribunal suggested to the participants that serious consideration be given to engaging services to support Ms NMN with her medication compliance. It was noted that NGO 1, who had been involved shortly prior to Ms NMN's hospitalisation, had implemented a comprehensive support plan for Ms NMN. It would appear that the further engagement of NGO 1 would be of benefit to Ms NMN upon her discharge from hospital. In addition, the Tribunal noted that Ms NMN has a sizeable estate, which is currently managed by the NSW Trustee and Guardian. There would appear to be no reason why Ms NMN's funds could not be accessed in order to fund additional support services, including those specifically aimed at maintaining her treatment compliance, and the provision of psycho-social support.

28. Bearing in mind the important principles set out in the Guardianship Act, the Tribunal finds that to make an order in respect of Ms NMN would not be in her best interests and should not be made. Accordingly, the Tribunal was satisfied that the application for a guardianship order should be dismissed.

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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: 15 June 2016