PXO

[2018] NSWCATGD 2

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

PXO [2018] NSWCATGD 2

Hearing dates:

12 February 2018

Date of orders:

12 February 2018

Decision date:

12 February 2018

Jurisdiction:

Guardianship Division

Before:

A Britton, Principal Member
Dr A M Berry, Senior Member (Professional)
P Davidson, General Member (Community)

Decision:

1. A guardianship order is made for Mrs PXO.

 

2. LAO is appointed as the guardian.

 

3. This is a continuing guardianship order for a period of 12 months from 12 February 2018.

 

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

 

FUNCTIONS:

 

5. The guardian has the following functions:

 

a) Accommodation

 

To decide where Mrs PXO may reside.

 

b) Health care

 

To decide what health care Mrs PXO may receive.

 

c) Medical/Dental consent

 

To make substitute decisions about proposed minor or major medical or dental treatment, where Mrs PXO 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 Mrs PXO to an understanding of the issues and to obtain and consider their views before making significant decisions.

Catchwords:

GUARDIANSHIP – application for guardianship order – whether “need” for a guardianship order is a pre-condition to making a guardianship order – factors bearing on the exercise of the discretion to make a guardianship order – private guardian appointed

  GUARDIANSHIP – appointment of guardian – whether person is able to act as guardian – assertion that proposed guardian is “intellectually delayed”

Legislation Cited:

Guardianship Act 1987 (NSW) ss 3(1), s 4, 4(a), 4(b), 14(2), 17, 17(1)(a), 17(1)(b), 17(1)(c), 33A(4), Pt 5

Category:

Principal judgment

Parties:

001: Guardianship Application

  PXO (the subject person)
CEK (applicant, other non-party)
LAO (carer, other non-party)
MEO (spouse)
Public Guardian

File Number(s):

NCAT 2017/00347156

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

1. Eighty-nine-year-old Mrs PXO is currently residing at an aged care facility in Northern Sydney on a respite basis after discharge from a Public Hospital.

2. In November 2018, a Public Hospital social worker Ms UZF made an application to the Guardianship Division of the New South Wales Civil and Administrative Tribunal (NCAT) seeking a guardianship order in respect of Mrs PXO (the Application). Ms UZF wrote that the reason for making the Application was that the family could not reach agreement about Mrs PXO’s accommodation and Mrs PXO’s high-care needs which could no longer be provided at home. Subsequently, the Tribunal gave leave to social worker, Ms CEK, to become the substitute applicant.

3. For the reasons that follow we have decided to make a guardianship order in respect of Mrs PXO and to appoint LAO as guardian.

4. All references in these reasons to “Mr MEO” are to Mrs PXO’s husband Mr MEO.

Background to the making of the application

5. Throughout 2017, Mrs PXO was admitted to hospital on multiple occasions. Prior to her most recent admission, Mrs PXO had been living on the top floor of a two-story house with her husband and son, LAO. The only access to the top floor is by nine steps. Another son, FAO, lived in an apartment downstairs. Mrs PXO required assistance with all activities of daily living and was receiving care services provided by Anglicare, seven days a week, for a total of about 10 hours. In addition, Mrs PXO received care and support from family members, primarily her husband and son, LAO.

6. The trigger for the Application was the concern of hospital social workers that the family had been unable to reach agreement about Mrs PXO’s future accommodation. At a meeting of hospital staff and family members held in early November 2017, Mr MEO expressed the view that his wife should return home. Mrs PXO’s children on the other hand reportedly agreed with the opinion of hospital social workers that given the evident deterioration in their mother’s physical health it was now unsafe for her to return to live at home.

7. In a report dated 9 November 2017, social worker Ms UZF wrote that Mr MEO lacks insight into the severity of his wife’s condition and her high-care needs. She wrote that in the past Mr MEO had been resistant to accepting additional external care for his wife. She recorded that he is described by his children as “controlling” and “aggressive” in respect of decisions involving his wife.

Issues to be determined

8. All parties to these proceedings, together with Mrs PXO’s children, CIO and FAO, agree that Mrs PXO is a “person in need of a guardian”: s 3(1) of the Guardianship Act 1987 (NSW) (the Act). That view is consistent with the opinion expressed by geriatrician Dr Z, in a report dated 17 October 2017. Following an assessment undertaken in October 2017, Dr F concluded that Mrs PXO has moderate to severe dementia and impaired capacity to make decisions about accommodation and services.

9. Being satisfied that Mrs PXO is a “person in need of a guardian”, the key issues we must determine are whether a guardianship order should be made, and if so, which functions should be conferred under that order and who should be appointed as Mrs PXO’s guardian(s). All parties, apart from the Public Guardian, support the making of a guardianship order and the appointment of LAO as guardian.

Should a guardianship order be made?

10. In considering whether or not to make a guardianship order, s 14(2) of the Act instructs that we shall have regard to:

1. the views (if any) of:

1. the person, and

2. the person’s spouse, if any, if the relationship between the person and the spouse is close and continuing, and

3. the person, if any, who has care of the person,

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.

11. In addition, in exercising the power conferred by s 14 of the Act, we must observe the statement of general principles listed in s 4 of the Act.

The views of Mrs PXO

12. While she attended by phone, Mrs PXO did not actively participate in the hearing and had limited capacity to express an opinion about the issues raised by the Application.

The views of Mr MEO

13. At the hearing, Mr MEO stated that he supported the Application. He stated that he now accepted that his wife could no longer remain living at home and that a guardian was required to make decisions on her behalf.

The views of Mrs PXO’s children

14. Each of Mrs PXO’s children supported the Application and the making of a guardianship order. They strongly disagreed with the opinion expressed by the Public Guardian that as their father now accepted that their mother was unable to return home, there was no need for a guardian. They pointed out that a number of decisions are likely to be required to be made in the immediate future on behalf of their mother, including decisions about health care, in particular end-of life planning.

The importance of preserving Mrs PXO’s existing family relationships

15. As discussed above at the family meeting with hospital staff held late last year, there was significant disagreement within the family members about the care and accommodation options for Mrs PXO. While agreement has now been reached, in our view, agreement is most likely to continue if a formal appointment of a substitute decision-maker is made. This factor favours the making of a guardianship order.

The importance of preserving Mrs PXO’s particular cultural and linguistic environments

16. This factor does not appear to be a relevant consideration to the making of a guardianship order in this matter.

The practicability of services being provided to Mrs PXO without the need for the making of such an order

17. Assuming continued agreement within the family about key decisions relating to Mrs PXO, including the services she should receive, it is likely to be practical for Mrs PXO to receive services, even without a guardianship order.

Views of the Public Guardian

18. The Public Guardian strongly opposes the making of a guardianship order in respect of Mrs PXO. The Public Guardian argues first, that given agreement has now been reached within the family, the need for a guardianship order has not been established. Second, in the foreseeable future it is unlikely any decisions will need to be made on behalf of Mrs PXO. If consent to medical and dental treatment is required, the ‘person responsible’ provisions in the Act can be invoked. Third, declining to make a guardianship order is consistent with the principles contained in s 4 of the Act, specifically the principle that the freedom of decision and freedom of action of Mrs PXO should be restricted as little as possible.

Consideration

19. For the following reasons we are unable to agree with the view expressed by the Public Guardian.

20. First, the Act does not require, as the Public Guardian suggests, that “need” for an order be established before the power to make a guardianship order can be exercised. This would be to interpolate an additional step, for which there is no warrant in the legislation, in the process of making a guardianship order. Once it is established that the subject person is a “person in need of a guardian”, as that term is defined by the Act, the only constraint on the exercise of the power to make a guardianship order is that the Tribunal must have regard to the matters listed in s 14(2) of the Act and to observe the principles contained in s 4 of that Act. The term a “person in need of guardian” means a “person who, because of a disability, is totally or partially incapable of managing his or her person”. It is apparent that the term is something of a misnomer because its focus is on whether the subject person has capacity to manage their person because of a disability, not whether there is a need for the appointment of a guardian.

21. Second, in the circumstances of this case, the Public Guardian’s argument that declining to make a guardianship order is consistent with the “least restrictive option” cannot be accepted. As the Public Guardian points out, the Act instructs that it is the duty of everyone exercising functions under the Act with respect to persons who have disabilities to observe among other things the principle that “the freedom of decision and freedom of action of [persons who have disabilities] should be restricted as little as possible”: s 4(b). The flaw in the argument advanced by the Public Guardian is that it assumes that if the status quo continues and a guardian is not appointed, Mrs PXO’s decision-making autonomy will be preserved. The argument fails to acknowledge that, given the nature and severity of Mrs PXO’s decision-making disability, she is not capable of making decisions of significance on their own behalf. Without a guardianship order, decisions will continue to be made on her behalf. The issue is not whether those decisions will be made by another person but who will make those decisions.

22. Third, the contention that, as the family now accepts that Mrs PXO should remain in residential care, it is unlikely any decisions of significance will need to be made on her behalf in the foreseeable future, cannot be accepted. The evidence reveals that, in the immediate future, a series of decisions are likely to be required to be made. These include the question of whether Mrs PXO should remain in the facility where she now resides or whether another facility would be more appropriate for her needs. In addition, as foreshadowed by Dr Z in his report of 17 October 2017, decisions are required to be made about Mr MEO’s health care, including end-of life planning. Plainly, it is not possible to crystal ball gaze and rule out the possibility that decisions will need to be made about Mrs PXO’s accommodation, services and medical and dental care.

23. Fourth, the Public Guardian in effect contends that it is Mrs PXO’s best interest that any future decision is made on an informal basis by members of her family, or, in relation to medical treatment, by invoking the “person responsible” provisions contained in Pt 5 of the Act. The history to the Application reveals that only a few months ago the family was deeply divided about key decisions relating to Mrs PXO’s accommodation and care. While agreement has now been reached, given the vagaries of human nature and the dynamics of family relationships, there is no guarantee that agreement will necessarily be reached about any future decisions that might need to be made. While, as the Public Guardian points out, Pt 5 of the Act provides for consent to medical and dental treatment to be made by the “person responsible”, it is not necessarily in Mrs PXO’s best interests that consent to medical and dental treatment be given by the person responsible. Mr MEO is the first in the hierarchy of “persons responsible” who health practitioners will be required to consult, to obtain consent for medical and dental treatment for Mrs PXO. Mr MEO has his own health problems and may not be well placed to undertake that role: s 33A(4) of the Act.

24. In our view, the balance of factors listed in s 14 of the Act, favour the making of a guardianship order. Mrs PXO’s spouse, carer, and other family members support the making of a guardianship order. Facing a number of significant health problems in the final stages of her life, it is in Mrs PXO’s best interests that any necessary decisions can be made promptly and without the risk that the decision-making process be delayed, as occurred last year. A decision to make a guardianship order is consistent with the statutory instruction that in exercising our powers under the Act, the welfare and interests of Mrs PXO should be given paramount consideration: s 4(a) of the Act.

Who should be appointed as Mrs PXO’s guardian?

25. Section 17 of the Act states:

17 Guardians

(1)    A person shall not be appointed as the guardian of a person under guardianship unless the Tribunal is satisfied that:

(a)    the personality of the proposed guardian is generally compatible with that of the person under guardianship,

(b)    there is no undue conflict between the interests (particularly, the financial interests) of the proposed guardian and those of the person under guardianship, and

(c)    the proposed guardian is both willing and able to exercise the functions conferred or imposed by the proposed guardianship order.

…

26. Mrs PXO’s family nominated LAO to act as his mother’s guardian. He agrees to accept that appointment. Mr MEO stated that his own ill health precludes him from undertaking the role and he believes that his son, LAO, is best placed to undertake the role of guardian. Mrs CIO stated that she believed her brother, LAO, was well placed to undertake the role having been closely involved in the care of their mother for a number of years. She stated that her brother’s knowledge and understanding of their mother’s medical history, together with his nursing experience (as a nurse’s assistant for approximately seven years) will assist him to effectively undertake the role of guardian.

27. Mr FAO endorsed his sister’s comment, adding that in his opinion, his brother’s great strength was his compassion and genuine concern for their mother.

28. In his report dated 17 October 2017, Dr Z described LAO as being “intellectually delayed”. Dr Z did not elaborate about the basis for this opinion. Mr LAO sought and was granted an adjournment of the hearing listed on 24 January 2018, to obtain a medical report to respond to this claim.

29. In a comprehensive report dated 8 February 2017, neuropsychologist Dr Y wrote that he had interviewed Mr LAO and conducted a number of tests to determine his cognitive function. She concluded:

69.   The history of motor coordination difficulties and current neuropsychological findings are commensurate with Dyspraxia. Dyspraxia is a brain-based condition that makes it hard to plan and coordinate physical movement and makes it more difficult to perform a sequence of movements. Dyspraxia is not a sign of muscle weakness or of low intelligence. Roughly to 6 to 10 percent of children show some signs of dyspraxia and children do not “grow out of” dyspraxia. Boys are affected more often than girls. Many people with symptoms are never diagnosed.

70.    Oromotor dyspraxia, also called verbal apraxia or apraxia of speech, makes it difficult to coordinate muscle movements needed to pronounce words. Mr LAO provides a history in keeping with verbal apraxia during his schooling years, for which he received speech therapy. Despite this, his current communication skills are sound.

71.    Constructional dyspraxia, makes it harder to understand spatial relationships. LAO continues to exhibit significant difficulties of this nature.

72.    Mr LAO's current overall level of intellectual functioning falls within the low average range, well above levels indicative of intellectual impairment. From a cognitive/neuropsychological perspective, I was unable to elicit any areas of concern relating to LAO's ability to act in a guardianship capacity for his mother.

73.    He appears to have a sound grasp of the issues at hand surrounding his mother's health and care needs and importantly has considerable hands on experience in dealing with his mother's needs on a daily basis over a long period of time. Mr MEO exhibits a detailed understanding of the manner in which family relations are likely to impact upon decision making around his mother's care needs.

30. Dr Y’s findings on assessment put to rest the assertion made by Dr Z that Mr LAO is “intellectually delayed”. Her conclusion that Mr LAO appeared to have a “sound grasp” of his mother’s health and care needs, was consistent with the responses he gave in these proceedings to questions from the Tribunal. It was apparent from those responses that Mr LAO had a good understanding of his mother’s medical history, the factors relevant to the choice of accommodation and healthcare plans.

31. We are satisfied that the matters listed in paras (a), (b), and (c) of s 17(1) of the Act are established. In addition we are satisfied that Mr LAO is an appropriate person to discharge the important role of guardian and it is in Mrs PXO’s interest that this appointment be made.

What functions should the guardian(s) be given?

32. In the foreseeable future, it is possible, if not probable, that decisions in relation to accommodation, services, health care, and medical and dental treatment will need to be made on behalf of Mrs PXO. For these reasons we have decided to confer these functions on the appointed guardian.

What should be the term of the order?

33. We have decided to make the term of the order 12 months and to make the order reviewable.

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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: 01 March 2018