NZT

[2020] NSWCATGD 21

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

NZT [2020] NSWCATGD 21

Hearing dates:

29 January 2020

Date of orders:

29 January 2020

Decision date:

29 January 2020

Jurisdiction:

Guardianship Division

Before:

C P Fougere, Principal Member
Dr G Jamieson, Senior Member (Professional)
Emeritus Professor P J Foreman AM, General Member (Community)

Decision:

1. A guardianship order is made for NZT.

2. The Public Guardian is appointed as the guardian.

3. This is a continuing guardianship order for a period of six months from 29 January 2020.

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

FUNCTIONS:

5. The guardian has the following functions:

a) Accommodation

To decide where NZT may reside.

b) Health care

To decide what health care NZT may receive.

c) Medical/Dental consent

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

CONDITION:

6. The condition of this order is:

a) Standard Condition

In exercising this role the guardian shall take all reasonable steps to bring NZT 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 a guardianship order should be made – subject person unable to provide consent – major medication being administered without consent – whether administration of major medication constitutes medical treatment – whether chemical restraint being used – need for medical review – need for accommodation decisions to be made – Public Guardian appointed – order made.

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:

Nil

Category:

Principal judgment

Parties:

005: Guardianship Application

NZT (the person)
PZH (applicant)
NSW Public Guardian

Representation:

Nil

File Number(s):

NCAT 1997/00067806

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

Background

1. NZT is an 89-year-old-woman who has lived at an aged care facility in Inner West Sydney for many years. We were told that NZT has no involved family members or friends.

2. The substitute applicant was PZH, Acting Director of Nursing of the aged care facility. The application for the appointment of a guardian was made because, according to the application, NZT does not have the capacity to make important decisions and there is no-one else involved in NZT’s life that could make decisions on her behalf.

3. At the commencement of the hearing, the Tribunal was informed by the applicant that on the previous day the management of the aged care service provider announced that the aged care facility will close on or around 29 February 2020. We were given a copy of a letter dated 28 January 2020 from the Chief Executive Officer of the aged care service provider that confirmed this and gave as the reason for the closure “the declining numbers of residents and the inability to redevelop the facility on the existing site to the required standard”. We were also told, and the letter confirmed, that the aged care service provider has identified alternative accommodation options for all residents. We were told that NZT is able to move to another facility of the aged care service provider in West Sydney if she, or someone with the authority to decide on her behalf, believes that it would be in NZT’s interests to move to that facility.

4. On 25 November 2019, the Tribunal had a directions hearing in this matter and made a number of directions requiring the applicant to give detailed information to the Tribunal and the Public Guardian about, in summary, the major medications that NZT was administered and the reason for the administration of the medication that is, whether it was to treat an underlying medical condition or whether it was to influence NZT’s behaviour.

5. The uncontested evidence given to the Tribunal was that:

1. Sometime in 2010, the administration of lithium to NZT was ceased due to ‘toxicity” and the administration of “high doses of anti-psychotic medication was commenced” (discharge letter, a public hospital, 2010)

2. After psychiatric review in 2011, NZT’s dose of quetiapine (225mg bd) was increased to 250mg bd. A referral was made to the Specialist Mental Health Services for Older People (SMHSOP) but we were told that this did not eventuate. NZT has not been reviewed by any specialist since 2011.

3. Up until December 2019 NZT remained on these dosages of quetiapine. In December 2019, her general practitioner, Dr Z, reduced the medication to 225mg bd. NZT remained on this dosage as at the hearing date.

6. It was also uncontested that whilst NZT has at times displayed behaviours that have been some cause for concern, such as loud vocalisation, repeating the same word over and over, and causing annoyance to other residents and responding in an aggressive manner to another resident who was acting aggressively towards her, this has been managed by care staff undertaking behaviour support strategies. We were provided with written material that showed the types of strategies utilised and records of each occasion on which they were utilised. The care staff giving evidence told us that they felt that these measures had been largely successful in calming and reassuring NZT.

NZT’s views

7. We travelled to the aged care facility so that we could conduct this hearing in person and meet with NZT. We understood that unless we had taken this course, NZT would have had difficulty in participating in a telephone hearing.

8. During the hearing, the three Tribunal members went to meet with NZT in the dining room of the facility. When we met her, NZT was sitting at the entrance of the dining room and was greeting people as they walked by. NZT was friendly and personable and appeared to be happy to speak with us. NZT’s responses to our questions were, however, limited in content. She could not, for example, recall how long she had lived at the aged care facility or whether she was taking any medication.

9. NZT preferred to ask us questions including whether we were married and commenting on our shoes. The care staff taking part in the hearing told us that these are topics of conversation that NZT returns to repeatedly.

GUARDIANSHIP APPLICATION

What did the Tribunal have to decide?

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

• Is NZT 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 NZT 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?

11. Section 14 of the Guardianship Act 1987 (NSW) (“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”: s 3(1) of the 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) of the Act.

12. In written and oral evidence to the Tribunal, Dr Z advised that NZT has “severe dementia” as well as “developmental delay” and “does not have the capacity to make decisions which affect her health” or any other significant decisions.

13. There was no disagreement with the content of this evidence by the care staff who participated in the hearing. We also note that our observation of NZT was consistent with the evidence of the general practitioner and care staff.

14. Based on the evidence of the extent of her cognitive impairment, which we accept, we were satisfied that NZT is restricted in important major life activities to such an extent that she requires supervision or social habilitation. She has a significant “need for services to help [her] function normally in community with others” (P v NSW Trustee and Guardian [2015] NSWSC 579, [303]).

15. We were satisfied that NZT is a person for whom we could make a guardianship order as she is a person who because of her disability, namely dementia, is incapable of managing her own person.

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

16. 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;

2. the person’s spouse;

3. the person’s carer; and

2. the importance of preserving the person’s existing family relationships;

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.

17. 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 may be guided by the principles that are set out in s 4 of the Act (see IF v IG [2004] NSWADTAP 3).

18. The principles contained in s 4 of the Actare as follows:

4   General principles

It is the duty of everyone exercising functions under this Act with respect to persons who have disabilities to observe the following principles:

(a)     the welfare and interests of such persons should be given paramount consideration,

(b)     the freedom of decision and freedom of action of such persons should be restricted as little as possible,

(c)     such persons should be encouraged, as far as possible, to live a normal life in the community,

(d)     the views of such persons in relation to the exercise of those functions should be taken into consideration,

(e)     the importance of preserving the family relationships and the cultural and linguistic environments of such persons should be recognised,

(f)     such persons should be encouraged, as far as possible, to be self-reliant in matters relating to their personal, domestic and financial affairs,

(g)     such persons should be protected from neglect, abuse and exploitation,

(h)     the community should be encouraged to apply and promote these principles.

19. We were satisfied that a guardianship order should be made for NZT for the following reasons.

20. Due to the information provided at the start of the hearing that the aged care facility in Inner West is closing down, consideration needs to be given as to whether the aged care facility in West Sydney is a suitable place for NZT to live or whether other options need to be considered. The applicant advised that NZT would not be able to engage in the decision making process about where she could move to. NZT was unable to provide us with any views about this, or any other issue that was before us, when we spoke with her.

21. We were satisfied on the basis of this evidence that an accommodation decision needs to be made for NZT and that this function should be included in the order as NZT is unable to engage in the decision making process due to her advanced stage of dementia.

22. Of critical importance in our view was trying to ascertain whether the administration of NZT’s major medication, quetiapine, was for the purpose of treating a medical condition, or whether it was prescribed to manage her behaviour. Our finding on this issue would determine whether we needed to provide a guardian with the authority to consent to major medical treatment on NZT’s behalf or whether it would require the inclusion of a function that would authorise a guardian to give or withhold consent to the medication as a form of chemical restraint.

23. Dr Z’s oral evidence was that he did not know what, if any, underlying condition NZT was diagnosed with that led to the administration of quetiapine. He told us that NZT came to the aged care facility on this medication and he had not changed it since. In response to our questions about whether the medication was prescribed to treat a condition or to manage her behaviour, Dr Z told us that he could not be sure. He also told us that he did not have the notes in front of him made by the prescribing psychiatrist in 2010/2011 which might have assisted him in answering this question.

24. We heard submissions from Ms Shapiro on behalf of the Public Guardian on this issue. Ms Shapiro submitted that the evidence was unclear about whether the medication in question was originally prescribed, or is now being administered, to manage NZT’s behaviour or whether it is being administered to treat a psychiatric condition. Ms Shapiro suggested that a guardian should be appointed for a limited period with medical consent and health care functions so that investigations could be undertaken with specialist services to ascertain whether this medication is appropriately prescribed for NZT. Ms Shapiro suggested that if this were able to occur then the appointed guardian would be able to advise at the review hearing of the outcomes of these investigations and what, if any, further order would be needed.

25. We saw merit in the submissions made on behalf of the Public Guardian. On the evidence available to us it was clear that a major medication has been prescribed for NZT for many years without anyone providing lawful consent for the administration of this medication, at least for any period over which NZT has been unable to provide her own informed consent to the medication. This medication has been prescribed at a relatively high dosage. Despite this, and contrary to what might be expected for someone of NZT’s age and size, the evidence is that it has not had a sedating effect on her. This accords with our own observations when we met with NZT as she appeared to us on that occasion to be very alert and sociable. NZT’s treating practitioner was unable to explain the reason for the administration of this medication.

26. We determined that the order should include health care and medical and dental consent functions in order that the appointed guardian may seek specialist advice as to NZT’s medical treatment and, in particular, whether quetiapine should continue to be administered at its current dosage or at all. On the basis of this advice, the appointed guardian is likely to be in a better position to provide evidence to the Tribunal on the next occasion as to whether the medication is being used to treat a medical condition or whether it is being used as a form of chemical restraint.

27. We also note more generally that the move to a new home is likely to mean that a new general practitioner will need to be chosen for NZT as well as other possible health services. We were also told by care staff that NZT has been recently reviewed by a speech pathologist due to concerns about her chewing and swallowing ability and the risk of aspiration given NZT’s wish to eat bread. We were satisfied that the inclusion of a health care function will enable these other health related issues to be addressed.

28. We were satisfied that there was no other practicable way for services to be provided to NZT without the requested authority being included in the order.

29. There was no evidence of any cultural or linguistic issues that required consideration in this matter. Nor was there evidence of any family relationships that required consideration.

Who should be the guardian?

30. In the absence of any other person available to be considered in the role of guardian, we had no option but to appoint the Public Guardian as NZT’s guardian about accommodation, health care and medical and dental treatment decisions and accordingly made that appointment.

How long should the order last?

31. Ms Shapiro on behalf of the Public Guardian suggested that a six month order would enable time for the Public Guardian to seek the specialist reviews discussed. The applicant did not object to a six-month order being made.

32. We took these submissions into account and determined to make a six-month guardianship order so that NZT’s general health and medical treatment may be reviewed. Another hearing will take place at the end of this period at which point the Public Guardian and those caring for NZT at her new home will be able to put evidence before the Tribunal as to what functions of guardianship, if any, may be required in order to best promote her welfare and interests.

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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: 12 August 2020