NVL

[2017] NSWCATGD 11

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	NVL [2017] NSWCATGD 11
Hearing dates:	29 March 2017
Date of orders:	29 March 2017
Decision date:	29 March 2017
Jurisdiction:	Guardianship Division
Before:	J Simpson, Senior Member (Legal) Dr I Beale, Senior Member (Professional) M McCalman, General Member (Community)
Decision:	1. A guardianship order is made for Ms NVL. 2. The Public Guardian is appointed as the guardian. 3. This is a continuing guardianship order for a period of 3 years from the date of this order. 4. This is a limited guardianship order giving the guardian custody of Ms NVL to the extent necessary to carry out the functions below.  FUNCTIONS The guardian has the following functions: Health Care - To decide what health care Ms NVL may receive. Medical and Dental Consent - To make substitute decisions about proposed minor or major medical or dental treatment when Ms NVL is not capable of giving a valid consent. Services - To make decisions about services to be provided to Ms NVL.
Catchwords:	GUARDIANSHIP – application for guardianship order – National Disability Insurance Scheme – nominee – need for an order – Public Guardian appointed
Legislation Cited:	National Disability Insurance Scheme Act 2013 (Cth) Guardianship Act 1987 (NSW), ss 4, 14(2)
Cases Cited:	HKO [2016] NSWCATGD 14 IF v IG [2004] NSWADTAP 3 LBL [2016] NSWCATGD 22
Category:	Principal judgment
Parties:	Ms NVL (subject person) Mr NXG (applicant) The NSW Public Guardian
File Number(s):	57899
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. We appointed the Public Guardian for three years to make decisions for Ms NVL about services and health issues.

Background

2. Ms NVL is a 52-year-old woman with multiple sclerosis who lives in a rented unit in regional NSW and has 24-hour care funded through the National Disability Insurance Scheme (NDIS).

3. Mr NXG, support coordinator from an advocacy group, applied for a guardianship order, in particular so that a guardian could make decisions in relation to dealings with the NDIS.

4. In January 2015, the Tribunal appointed the Public Guardian to make decisions around accommodation, health, services, and advocacy issues for Ms NVL. This also was particularly to deal with decisions in relation to Ms NVL’s NDIS plan.

5. In January 2016, the Tribunal decided not to renew the guardianship order. The Public Guardian had successfully advocated for an adequate NDIS package. Ms NVL’s daughter was involved and able to act as person responsible for medical and dental consents.

What did we have to decide?

6. We had to decide:

• Does Ms NVL have a disability which prevents her from being able to make some important life decisions?

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

• Who should be the guardian?

• How long should the order last?

7. When deciding whether to make a guardianship order, we needed to take account of all relevant factors, including those listed in s 14(2) of the Guardianship Act 1987 (NSW). These are about the views of Ms NVL and any spouse and unpaid carer, preserving family relationships, preserving cultural and linguistic environments, and the practicability of services being provided without a guardianship order. We could be guided by the principles in s 4 of the Guardianship Act which cover some of the same issues as s 14(2) but also emphasise minimum intrusion on a person’s freedom, encouragement of self-reliance and a normal life in the community, protection from neglect, abuse and exploitation and the person’s interests being paramount. In the end, we have a broad discretion whether to make a guardianship order (IF v IG & Others [2004] NSWADTAP 3).

Does Ms NVL have a disability which prevents her from being able to make some important life decisions?

8. An occupational therapist carried out a detailed assessment of Ms NVL in October 2016. There was a significant decline in Ms NVL’s functional ability. Her cognitive impairments made her totally dependent on the assistance of carers. Without continual prompting, supervision and monitoring, Ms NVL would not initiate daily tasks, and would forget to do things like eat and drink. She showed major problems with her memory and was unable to understand complex or abstract directions and conversation. She showed little insight into her deteriorating function.

9. In the hearing, we found it very difficult to obtain views from Ms NVL in relation to the application.

10. The applicant emphasised that Ms NVL’s condition has deteriorated since the last guardianship hearing and she now finds decisions consistently overwhelming.

11. We accepted that Ms NVL has a cognitive disability that prevents her from being able to make major life decisions such as those involved in NDIS planning.

Should we make a guardianship order?

12. Ms NVL currently has a large NDIS support package which allows for her to receive 24-hour care in her own home. The applicant said that the National Disability Insurance Agency (NDIA) had been very reluctant to fund 24-hour support but Ms NVL is going very well with it.

13. The NDIS plan is currently being reviewed leading to apprehension about whether it will be maintained. Also, the NDIA was seeking for someone to make clear and informed decisions for Ms NVL. She does have two adult daughters but they have been hard to contact over time.

14. In LBL [2016] NSWCATGD 22, the Tribunal got evidence from the NDIA about its practices in relation to planning decisions for a person who had impaired capacity to make decisions about their own plan. Where a NDIS participant appeared unable to understand issues central to the development of a plan of supports, the NDIA would first consider whether the person could be supported to understand the situation and express their views. If this was unsuccessful, the NDIA would look to the person’s informal support network of family and close friends. As a last resort, the NDIA might appoint a nominee under the National Disability Insurance Scheme Act 2013 (Cth) (the NDIS Act).

15. The Tribunal saw the NDIS nominee provisions as unlikely to be useful where a person lacks an informal support network. It would be unlikely that a suitable person was available to be nominee.

16. In the current hearing, the Tribunal obtained further evidence from Ms Lee Davids who had given evidence for the NDIA in LBL. Ms Davids is the Director of the Advisory Team of the NDIA.

17. Ms Davids now told the Tribunal that the agency’s view in practice is that, if a person cannot understand planning issues and express views, then the agency needs someone to make informed decisions on behalf of the person. This can be any person that the participant chooses, with a degree of understanding of the choice they are making. This could even be a current service provider although this is an option the agency very much does not prefer due to conflict of interest issues. Where there is no one available to take this role, the agency would tend to talk to a service provider about making a guardianship application.

18. The applicant told the Tribunal that he has tried to promote the role of Ms NVL’s daughters in decision making for her but their involvement has been intermittent and they do not have time to get involved. Difficulties contacting the daughters had led to delays in medical decision making. Ms NVL’s continuing deterioration will lead to ongoing intertwined decisions about health care and services.

19. Tribunal staff had contacted Ms NVL’s daughters about the hearing but they did not participate.

20. In deciding whether to make a guardianship order, the key question in this case was whether it was practicable for adequate and appropriate services to be provided to Ms NVL without a guardianship order. The desirability of services being provided without guardianship is reinforced by the principles about minimum restriction on freedom in s 4 of the Guardianship Act.

21. The Tribunal will not make a guardianship order just because a government agency such as the NDIA wants one made. Also, if the NDIA sees the need for a substitute decision-maker and a suitable relative, friend or advocate is available, then the NDIA could appoint that person as nominee under the NDIS Act.

22. It is unfortunate that there is not more advocacy and independent decision support available for people whose family cannot support them with things like NDIS processes. These would be less formal and restrictive approaches than guardianship.

23. However, in previous cases such as HKO [2016] NSWCATGD 14, the Tribunal has accepted that Public Guardianship is an essential safeguard for many people’s initial NDIS plans if they are not able to make their own decisions about plans and lack informal support in this process from a family member, friend, or advocate. We saw the argument for guardianship as particularly strong for Ms NVL in view of her current very large NDIS funding package which is meeting her needs very well.

24. There was no available guardian other than the Public Guardian.

25. We appointed the Public Guardian in relation to services and the interrelated issues of health care and medical and dental consents.

How long should the order last?

26. In view of her deteriorating condition and the need to safeguard her NDIS support, we saw Ms NVL as needing a guardian for three years. Ms NVL has a permanent disability and is unlikely to become capable of making informed life decisions.

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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: 26 July 2017