NYQ

[2021] NSWCATGD 20

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

NYQ [2021] NSWCATGD 20

Hearing dates:

16 July 2021

Date of orders:

16 July 2021

Decision date:

16 July 2021

Jurisdiction:

Guardianship Division

Before:

R H Booby, Senior Member (Legal)
Dr G Jamieson, Senior Member (Professional)
Dr M Spencer, General Member (Community)

Decision:

The application for guardianship is dismissed after hearing.

Catchwords:

GUARDIANSHIP – application for a guardianship order – proposed use of restraint in aged care – environmental restraint – family concerns over safety in aged care facility – family proposal for placement in secure facility wing – no care plan or professional recommendation for placement in secure wing – other decisions can be made informally – application dismissed

Legislation Cited:

Guardianship Act 1987 (NSW), ss 3(1)-(2), 4, 14, 14(2)

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:

001: Guardianship Application

NYQ (the person)
TBO (applicant)
Public Guardian
QZQ (spouse)

Representation:

Nil.

File Number(s):

NCAT 2021/00090215

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

GUARDIANSHIP APPLICATION

1. NYQ is 80 years old and lives in West Sydney, NSW, at an aged care facility.

2. On 23 June 2021 the Tribunal received an application seeking the appointment of a guardian for NYQ. The applicant was NYQ’s son, TBO.

The hearing

3. 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.

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

5. NYQ did not participate in the hearing. It was agreed by all those participating in the hearing that due to the extent of her dementia, NYQ would not understand the proceedings and was likely to become distressed and confused.

6. The Tribunal must ensure that it conducts its hearings in such a way as to extend procedural fairness to the parties. This includes a requirement that the parties must be given a reasonable opportunity to be heard, and to present their case.

7. The Tribunal is also required to follow principles set out in s 4 of the Guardianship Act 1987 (NSW) (“the Act”). These principles include that paramount importance should be given to the welfare and interests of a person with disabilities.

8. We were satisfied that whilst it would be the interests of NYQ to participate in the hearing if she were able, her inability to effectively participate and the risk of distressing her was such that we should proceed with the hearing in her absence.

What did the Tribunal have to decide?

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

• Is NYQ 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?

Is NYQ 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?

10. Section 14 of the Act provides that the Tribunal may make a guardianship order for a person if it is satisfied that 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”: the 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: the Act, s 3(2).

11. 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.”

12. A letter dated 6 September 2020 by a Resident Medical Officer for Dr Z, a geriatrician, indicates that NYQ has advanced dementia and is not able to manage her financial affairs.

13. Geriatrician notes compiled by Dr Y on 25 November 2020 indicate that NYQ has advanced dementia likely to be Alzheimer’s dementia, and was non-verbal.

14. It was agreed by all those participating in the hearing that NYQ has a cognitive impairment resulting from her dementia and that as a result she is not able to make important life decisions. She is therefore a person for whom the Tribunal could make a guardianship order.

Should the Tribunal make a guardianship order and what order should be made?

15. The Tribunal must consider all of the following matters set out in s 14(2) of the 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

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

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.

16. 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 Act. When undertaking this task the Tribunal is guided by the principles that are set out in s 4 of the Act (see IF v IG [2004] NSWADTAP 3).

17. TBO said that the application was made because NYQ had gone outside at the aged care facility and had a fall as a result of which she broke her hip. Family members were of the view that NYQ should be moved to a secure wing where she would not be able to exit the building.

18. Ms X, the care manager, said that the facility staff do not believe that NYQ needs to be placed in a secure unit and would continue to discuss that matter with her family. There is no care plan in place and no recommendation by a medical or health care practitioner in support of such a placement.

19. Whilst we accept the concerns of NYQ’s family regarding her recent injury, we were of the view that in the absence of a care plan and a recommendation that NYQ be placed in a secure wing of the facility and in the absence of any plan to move to her to such a wing, it is premature to consider the appointment of a guardian to consent to restraint of NYQ’s free access to her environment.

20. NYQ has family members who are able to consider any medical treatment proposed for her and we were not advised of any other decisions that might be required regarding her lifestyle.

21. In our view there were no decisions required for NYQ that cannot be made by informal means and, accordingly, we dismissed the application for guardianship.

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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 November 2021