NQK - [2020] NSWCATGD 39

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: NQK [2020] NSWCATGD 39
Hearing dates: 28 October 2020
Date of orders: 28 October 2020
Decision date: 28 October 2020
Jurisdiction: Guardianship Division
Before: S Roushan, Senior Member (Legal)
Dr B McPhee, Senior Member (Professional)
Dr M Spencer, General Member (Community)
Decision:
Guardianship
1. A guardianship order is made for NQK.
2. The Public Guardian is appointed as the guardian.
3. This is a continuing guardianship order for a period of six months from 28 October 2020.
4. This is a limited guardianship order giving the guardian(s) custody of NQK to the extent necessary to carry out the functions below.
FUNCTIONS:
5. The guardian has the following functions:
a) Accommodation
To decide where NQK may reside.
b) The guardian may authorise others including members of NSW Police and the Ambulance Service of NSW to:
i) take NQK to a place approved by the guardian.
ii) keep them at that place.
iii) return them to that place should they leave it.
c) Health care
To decide what health care NQK may receive.
d) Medical/Dental consent
To make substitute decisions about proposed minor or major medical or dental treatment, where NQK is not capable of giving a valid consent.
e) Services
To make decisions about services to be provided to NQK.
f) Legal services
To make decisions for NQK in relation to access to legal services.
AUTHORITIES:
6. The guardian has the following authorities:
a) Authority to override objections to medical treatment
i) The guardian may override the objection of NQK to major or minor medical treatment.
CONDITION:
7. The condition of this order is:
a) Standard Condition
In exercising this role the guardian shall take all reasonable steps to bring NQK to an understanding of the issues and to obtain and consider their views before making significant decisions.

Catchwords:
GUARDIANSHIP – application for a guardianship order – whether subject person a person for whom a guardianship order could be made - subject person detained in immigration detention since 2013, with no prospects of remaining in Australia - subject person diagnosed with major depressive order, mild neurocognitive disorder, malnutrition, at immediate risk of cardiac and major organ failure – subject person incapable of managing his own person – whether a guardianship order should be made - subject person refuses nasogastric feeding and treatment for depression – need for medical treatment decisions to be made with authority to override objections – need for accommodation decision with authority to authorise others to carry out decisions for hospital admissions – no private guardian available – Public Guardian appointed – order made.

Legislation Cited:
Guardianship Act 1987 (NSW), ss 3(1)-(2), 4, 14, 14(2), 15(3), 46A

Cases Cited:
C S and M Y v the Guardianship Tribunal and the Public Guardian (Supreme Court (NSW), Windeyer J, 29 November 1999, unrep
IF v IG [2004] NSWADTAP 3
Re B [2011] NSWSC 1075

Texts Cited:
Nil

Category: Principal judgment
Parties:
Guardianship Application
NQK (the person)
BNC (applicant)
Public…

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 NQK

Details

AGLC: NQK [2020] NSWCATGD 39
Case: [2020] NSWCATGD 39
Decision Date: 28 October 2020

CaseChat Overview and Summary

In the matter of NQK, the Supreme Court of New South Wales was presented with an application for a guardianship order concerning an individual detained in immigration detention since 2013. The subject person has no prospects of remaining in Australia and has been diagnosed with major depressive disorder, mild neurocognitive disorder, malnutrition, and is at immediate risk of cardiac and major organ failure. The court had to determine whether a guardianship order could be made for someone in these circumstances and if so, who should be appointed as the guardian.

The legal issues before the court included whether NQK was a person for whom a guardianship order could be made, considering his current health status and his refusal of nasogastric feeding and treatment for his depression. Additionally, the court had to consider the necessity for medical treatment decisions to be made with authority to override NQK's objections, as well as the need for accommodation decisions with authority to authorise others to carry out decisions for hospital admissions. There was also the question of whether a private guardian was available, and if not, whether the Public Guardian should be appointed.

The court found that NQK was indeed a person for whom a guardianship order could be made, given his incapacity to manage his own affairs due to his health conditions. It was determined that the Public Guardian should be appointed as the guardian due to the lack of a private guardian. The court concluded that the need for medical treatment decisions to be made with authority to override NQK's objections, as well as the need for accommodation decisions with such authority, justified the appointment of a guardian. The court also noted the standard condition that the guardian must take all reasonable steps to bring NQK to an understanding of the issues and to obtain and consider his views before making significant decisions.

The court made a guardianship order for NQK, appointing the Public Guardian as his guardian. The order was a limited guardianship order, giving the guardian custody of NQK to the extent necessary to carry out the functions of accommodation, health care, medical/dental consent, services, and legal services. The guardian was also granted the authority to override objections to major or minor medical treatment. The order was a continuing guardianship order for a period of six months from 28 October 2020.

Orders

Orders of the court

Guardianship

1. A guardianship order is made for NQK.

2. The Public Guardian is appointed as the guardian.

3. This is a continuing guardianship order for a period of six months from 28 October 2020.

4. This is a limited guardianship order giving the guardian(s) custody of NQK to the extent necessary to carry out the functions below.

FUNCTIONS:

5. The guardian has the following functions:

a) Accommodation

To decide where NQK may reside.

b) The guardian may authorise others including members of NSW Police and the Ambulance Service of NSW to:

i) take NQK to a place approved by the guardian.

ii) keep them at that place.

iii) return them to that place should they leave it.

c) Health care

To decide what health care NQK may receive.

d) Medical/Dental consent

To make substitute decisions about proposed minor or major medical or dental treatment, where NQK is not capable of giving a valid consent.

e) Services

To make decisions about services to be provided to NQK.

f) Legal services

To make decisions for NQK in relation to access to legal services.

AUTHORITIES:

6. The guardian has the following authorities:

a) Authority to override objections to medical treatment

i) The guardian may override the objection of NQK to major or minor medical treatment.

CONDITION:

7. The condition of this order is:

a) Standard Condition

In exercising this role the guardian shall take all reasonable steps to bring NQK to an understanding of the issues and to obtain and consider their views before making significant decisions.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	NQK [2020] NSWCATGD 39
Hearing dates:	28 October 2020
Date of orders:	28 October 2020
Decision date:	28 October 2020
Jurisdiction:	Guardianship Division
Before:	S Roushan, Senior Member (Legal) Dr B McPhee, Senior Member (Professional) Dr M Spencer, General Member (Community)
Decision:	Guardianship 1. A guardianship order is made for NQK. 2. The Public Guardian is appointed as the guardian. 3. This is a continuing guardianship order for a period of six months from 28 October 2020. 4. This is a limited guardianship order giving the guardian(s) custody of NQK to the extent necessary to carry out the functions below. FUNCTIONS: 5. The guardian has the following functions: a) Accommodation To decide where NQK may reside. b) The guardian may authorise others including members of NSW Police and the Ambulance Service of NSW to: i) take NQK to a place approved by the guardian. ii) keep them at that place. iii) return them to that place should they leave it. c) Health care To decide what health care NQK may receive. d) Medical/Dental consent To make substitute decisions about proposed minor or major medical or dental treatment, where NQK is not capable of giving a valid consent. e) Services To make decisions about services to be provided to NQK. f) Legal services To make decisions for NQK in relation to access to legal services. AUTHORITIES: 6. The guardian has the following authorities: a) Authority to override objections to medical treatment i) The guardian may override the objection of NQK to major or minor medical treatment. CONDITION: 7. The condition of this order is: a) Standard Condition In exercising this role the guardian shall take all reasonable steps to bring NQK to an understanding of the issues and to obtain and consider their views before making significant decisions.
Catchwords:	GUARDIANSHIP – application for a guardianship order – whether subject person a person for whom a guardianship order could be made - subject person detained in immigration detention since 2013, with no prospects of remaining in Australia - subject person diagnosed with major depressive order, mild neurocognitive disorder, malnutrition, at immediate risk of cardiac and major organ failure – subject person incapable of managing his own person – whether a guardianship order should be made - subject person refuses nasogastric feeding and treatment for depression – need for medical treatment decisions to be made with authority to override objections – need for accommodation decision with authority to authorise others to carry out decisions for hospital admissions – no private guardian available – Public Guardian appointed – order made.
Legislation Cited:	Guardianship Act 1987 (NSW), ss 3(1)-(2), 4, 14, 14(2), 15(3), 46A
Cases Cited:	C S and M Y v the Guardianship Tribunal and the Public Guardian (Supreme Court (NSW), Windeyer J, 29 November 1999, unrep IF v IG [2004] NSWADTAP 3 Re B [2011] NSWSC 1075
Texts Cited:	Nil
Category:	Principal judgment
Parties:	Guardianship Application NQK (the person) BNC (applicant) Public…