PZI

[2021] NSWCATGD 21

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

PZI [2021] NSWCATGD 21

Hearing dates:

5 November 2021

Date of orders:

5 November 2021

Decision date:

05 November 2021

Jurisdiction:

Guardianship Division

Before:

C P Fougere, Principal Member
Dr A M Berry, Senior Member (Professional)
L Stewart, General Member (Community)

Decision:

1. A guardianship order is made for PZI.

2. The Public Guardian is appointed as the guardian.

3. This is a continuing guardianship order for a period of three months from 5 November 2021.

4. This order will not be reviewed at the end of the above period.

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

FUNCTIONS:

6. The guardian has the following functions:

a) Health care

To decide what health care PZI may receive.

b) Medical/Dental consent

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

c) Restrictive Practices

To give or withhold consent as to whether the following restrictive practices should be used to influence PZI’s behaviour:

1. Physical restraint as a last resort by way of holding down PZI’s arm/s for the shortest period possible in order to administer intramuscular sedation and/or for taking blood.

AUTHORITY:

7. The guardian has the following authority:

a) Authority to override objections to medical treatment

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

CONDITION:

8. The condition of this order is:

a) Standard Condition

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

The application seeking medical consent is dismissed after hearing.

Catchwords:

GUARDIANSHIP – 36 weeks pregnant – “assessable” person under Mental Health Act – delusions about pregnancy and unborn child – at least partially incapable of managing own person in relation to pregnancy, birth and post-partum period – three month non-reviewable guardianship order made to take into account post-partum recovery.

Legislation Cited:

Guardianship Act 1987 (NSW), ss 3(1)-(2), 4(a), 14, 14(2), 15(3), 16(2A)

Mental Health Act 2007 (NSW), s 27

Cases Cited:

P v NSW Trustee and Guardian [2015] NSWSC 579

Texts Cited:

None cited.

Category:

Principal judgment

Parties:

002: Guardianship Application

PZI (the person)
QAU (applicant)
Public Guardian

003: Consent to Medical or Dental Treatment

PZI (the person)
QAU (applicant)

Representation:

Nil.

File Number(s):

NCAT 2013/00391631

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

What the Tribunal decided

1. We decided to make a guardianship order for PZI and appointed the Public Guardian as her guardian for three months. We granted to PZI’s guardian the authority to make decisions on PZI’s behalf as to her health care, to give or withhold consent to medical and dental treatment if required, together with the authority to override any objections PZI may have to treatment, and to use physical restraint as a last resort by way of holding down PZI’s arm/s for the shortest period possible in order to administer intramuscular sedation and/or for taking blood. This order will not be automatically reviewed at the end of its term.

Background

2. PZI is a 38-year-old woman who normally lives in East Sydney but at the time of this hearing was a patient in the Mental Health Rehabilitation Unit at a public hospital in East Sydney. On the material before us, PZI was admitted to the public hospital on 21 October 2021 with “an exacerbation of schizophrenia” and is an assessable person having been involuntarily admitted to the public hospital pursuant to s 27 of the Mental Health Act 2007 (NSW). A mental health inquiry concerning PZI is listed on 10 November 2021. The written material before us was that PZI was made the subject of a Community Treatment Order on 15 February 2021 for 12 months but had been in breach of the conditions placed upon that order which resulted in her admission to hospital.

3. At the time of his hearing PZI was estimated to be 36 weeks pregnant. The evidence before us was that although PZI was due to give birth in four weeks’ time, she could go into labour at any time.

4. On 3 November 2021, two applications were made by staff of the public hospital asking for an urgent hearing for PZI:

• Medical consent application made by QAU, Psychiatry Registrar, Mental Health Rehabilitation Unit

• Guardianship application made by FYD, Social Worker with the Mental Health Rehabilitation Unit. As the original applicant was not available to take part in the hearing, QAU became the applicant for both matters

5. The need for urgency was set out in the guardianship application as follows:

“[PZI] was not fully aware that she was pregnant until late October when it was pointed out as a possibility from her case manager. [PZI] has a long history of schizophrenia and polysubstance abuse. [PZI] is currently psychotic…[PZI] expresses delusional content about the pregnancy and her unborn child. [PZI] at times does not believe that she is carrying a child and at times said that she had a snake inside her, a fish or that someone had cut off a head and put it inside her. It is the treating teams opinion that [PZI] is unable to make informed decisions at present. [PZI] may need a number of medical interventions during the labour and delivery of her child that we are concerned that she will not be able to give consent for this which may have a negative impact on her and her unborn child’s safety…

…due to her mental illness she believes that she is 42 weeks pregnant. This is [PZI]’s second child so there is a possibility that she could go into labour earlier than her due date…[PZI] has no insight into both her mental illness or her pregnancy. [PZI] already refuses to allow staff to extract blood from her to assist in assessment and care.”

6. Due to the possibility of PZI going into labour at any time and the concerns raised in the applications as to PZI’s ability to give informed consent to medical treatment that may be required, the applications were listed on an urgent basis.

7. This resulted in very limited notice being given to the parties including, importantly, PZI. However we decided to proceed with hearing the applications despite the limited notice as we considered it to be in PZI’s interests to do so (Guardianship Act 1987 (NSW) (“the Act”), s 4(a)) given the imminent birth of her child.

8. For the reasons that are set below we made a guardianship order for PZI that gives the Public Guardian the authority to override PZI’s objections to medical and dental treatment. In these circumstances, there was no need for the Tribunal to also consider the application seeking this Tribunal’s consent to medical treatment and we therefore dismissed that application.

PZI’s participation in the hearing

9. At the end of these Reasons for Decision is a list of parties to the applications and the witnesses who participated in the hearing. [Appendix removed for publication.]

10. Due to the ongoing restrictions in place as to how the Division may conduct hearings due to the COVID-19 pandemic, the hearing proceeded by way of telephone.

11. PZI was present throughout the hearing in the company of Ms Z, Clinical Nurse Consultant in the Mental Health Rehabilitation Unit. Ms Z confirmed that a copy all of the written material provided to the Tribunal had been given to PZI and that Ms Z had read through the material with her.

12. PZI expressed many views about her pregnancy that were consistent with the description of her views given in the application for guardianship and as outlined at [5] above. Whilst it was at times difficult to clearly follow PZI’s train of thought, the following is a summary of what we understood of her evidence:

• PZI disagreed that she is due to give birth in approximately four weeks and instead believes that she is more than nine months pregnant and the baby is due in a week or so. She is “waiting to be induced” and wants to have an epidural.

• PZI disagrees that she is delusional and has disordered thoughts describing herself as having “a very high IQ”. She told us that she does not have hallucinations and some of the things she told the doctors were real. PZI spoke of having a snake in her womb.

• PZI told us there is no reason why she won’t give birth quickly, like her first child.

• PZI does not want a caesarean section and does not want to “give [her] blood away”. This is because her blood contains her “vitality” and also because she is Catholic and is not allowed to give blood.

• PZI told us that she does not want to have the COVID-19 vaccine.

• PZI also told us that she can make her own decisions.

What did we need to consider?

13. The questions which we had to decide were as follows:

• Is PZI someone for whom we could make a guardianship 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 PZI someone for whom we could make an order because she has a disability which prevents her from being able to make important life decisions?

14. Section 14 of the Act provides that the Tribunal may make a guardianship order for a person if it is satisfied that he or 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; 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).

15. In a written report prepared on 3 November 2021, QAU stated as follows:

“[PZI] is currently quite unwell and demonstrates a range of psychotic symptoms including severe disorder of thought form, bizarre and persecutory delusions, and auditory hallucinations. She lacks insight that she has a mental illness.

[PZI] is due to deliver her baby anytime now however she didn’t initially believe that she was pregnant at all. More recently she has accepted that she is pregnant but has expressed a range of bizarre delusions about her baby including that it is already several years old, it is the devils child, and that it needs a new head. These delusions are all concerning in regards to the safety of her child and her capacity to make decisions around the delivery of her baby and the care after the child is born.

On 2^nd November I met with the obstetrics team to assess her capacity to give informed consent for the delivery and we discussed the different potential scenarios for the birth. [PZI] was difficult to engage in this discussion due to her psychosis however it was quickly apparent that she lacks capacity to make decisions in regards to her medical care. Specifically she could not understand the relative risks of different outcomes and complications of pregnancy and it was also clear that she would not be able to consent to any interventions. Possible interventions including the need to use forceps, vacuum, or even caesarean section. She refused to consider a c-section under any circumstances, even if life saving, and refused to consent to giving bloods or receiving blood products. Her refusal to consider these possibilities was not based on sound logic, but on the unfounded belief that nothing will go wrong and the inability to consider that complications can occur.

It is my medical opinion that [PZI] lacks capacity to make the decisions required to safely deliver her baby and that if any complications arose during labour she would not be able to consent to interventions and she does not have the capacity to refuse interventions either.”

16. QAU’s oral evidence was consistent with his written evidence.

17. Other than PZI, none of the other participants in the hearing disputed QAU’s opinion concerning PZI’s decision-making capacity at the current time. As outlined previously, PZI did not agree with aspects of QAU’s evidence and disputed that she has delusions or disordered thoughts. However, PZI’s evidence to us was consistent with the views expressed by QAU and we gave limited weight to her criticism of the accuracy of the views expressed by QAU.

18. We accepted the evidence and views expressed by QAU given his professional expertise. PZI has been hospitalised since 21 October 2021 which has also provided her treating team with time to provide treatment for her mental health and for QAU to undertake an assessment of her decision- making capacity. Based on his evidence, we were satisfied that PZI’s insight into the various pathways that the birth of her child may take is impaired, including the potential risks associated with the birth, the different decisions that may need to be made and the possibility that the obstetric team may need to administer other forms of treatment, including blood products, should she require it. PZI’s evidence clearly indicated to us that she remains focussed on only one possible pathway, namely an induced birth with the possible use of an epidural, and a short labour. As a consequence, and due to the exacerbation of her mental illness at the current time, we were satisfied that PZI is severely restricted in making decisions as to her medical and health care concerning the birth of her child to such an extent that she requires supervision in this regard (P v NSW Trustee and Guardian [2015] NSWSC 579, at [303]). PZI is at least partially incapable of managing her person and is a “person in need of a guardian”. The power to make a guardianship order may therefore be exercised.

Should a guardianship order be made?

19. In considering whether or not to make a guardianship order, we must take into account the matters listed in s 14(2) of the Act, relevantly the views of PZI, the views of her spouse and unpaid carers, if any, the importance of preserving PZI’s existing family relationships and cultural and linguistic environments and the practicability of services being provided for PZI without the need for the making of a guardianship order.

20. We have summarised PZI’s views previously. We understood that PZI does not believe that she needs anyone to make decisions for her about the birth of her child and any medical treatment that she may require.

21. PZI did not have any family or others close to her taking part in the hearing. QAU told us that he had spoken with PZI’s mother prior to the hearing who, according to QAU, supported the guardianship application and the appointment of the Public Guardian but did not wish to take part in the hearing or be considered for appointment.

22. There was no evidence before us that PZI has a spouse or other unpaid carer.

23. Dr Y, Obstetric Registrar at another public hospital, gave evidence that as PZI previously experienced a normal vaginal delivery with her first child, the most likely outcome of this occasion will also be a normal vaginal delivery. However, things can change quickly when labour is underway. Often a need arises for vitals to be taken and monitoring carried out as to how labour is progressing. If an obstructed labour occurs, often the safest course is a caesarean section. Dr Y expressed doubt about PZI’s ability to understand the potential consequences should her birth not go as she wishes.

24. Dr Y told us that the treating team’s current plan is to wait for PZI to go into spontaneous labour. If this does not occur at 42 weeks (in approximately seven weeks’ time), then they will most likely consider an induction procedure. If a caesarean section became necessary, then PZI would need to be hospitalised for post-natal care for four to five days. Dr Y suggested that taking into account post-partum care, decision making may be required for a 12-week period.

25. QAU’s application also sought the appointment of a guardian with the authority to override PZI’s objections to medical treatment and to make decisions about physical and chemical restraint.

26. Dr Y has evidence that it would be safer for PZI if an appointed guardian were given the authority to override any objections PZI has to treatment.

27. Dr Y also told us that should any other intervention be required such as physical restraint to administer medication or to take blood, the treating team would only do so as a last resort and for the shortest possible period by way of holding down PZI’s arm. Medication in the nature of a sedative may be required, for example, in the event of a category 1 caesarean section (where there is an urgent threat to the life or health of a woman or fetus). However, Dr Y did not believe that a chemical restraint function was required. Rather, this would be likely to form part of PZI’s medical treatment should it be required.

28. Dr Y also advised that PZI has recently tested positive for hepatitis C and will likely require treatment with anti-viral medications. QAU was not aware of this diagnosis until it was disclosed by Dr Y in this hearing and it was also unclear if it had been discussed in any detail with PZI.

Consideration

29. We were satisfied on the basis of the evidence available to us that we should make a guardianship order for PZI. Whilst PZI hopes for an uncomplicated birth, the evidence from her treating doctors satisfied us that due to the different scenarios that can arise leading up to and during labour, it is in PZI’s interests for a substitute decision-maker to be available to make health care and medical treatment decisions should the need arise. We were not persuaded that PZI could receive necessary treatment without a guardianship order being made as PZI is fixed in her view as to the pathway that the birth will take and we were not persuaded that she currently has the ability to make informed decisions in the event of changing medical circumstances.

30. We were also satisfied that it will be necessary for the appointed guardian to have the additional authority to override any objections that PZI may have to treatment and the Public Guardian’s representative consented to the provision of this authority. We were satisfied that without this authority, PZI would be at risk at not receiving necessary care due to her lack of insight and impaired decision-making.

31. We were also satisfied that it was in PZI’s interests to provide the guardian with the authority to use physical restraint in the limited terms set out in the order. This will ensure that there is clarity about this issue for all of those providing care to PZI and so that she will not be deprived of necessary treatment should she require it. The terms of the order also make explicit that any use of physical restraint by the holding down of PZI’s arm/s is only to occur for the shortest possible period and only for the administration of necessary medication or the taking of blood.

32. There was no suggestion that a guardian is needed in relation to other areas of PZI’s life such as her living arrangements in the community or in relation to the provision of services. Should someone with a genuine concern for her welfare believe that this is necessary at a later stage, then another application may be made to the Tribunal.

33. In arriving at the decision to make a guardianship order with the functions outlined, we were satisfied that an order would not have a detrimental impact on PZI’s family relationships as she appears to have limited involvement with her family. We were not aware of any cultural or linguistic environment that would be impacted by the making of this order.

Who should be the guardian?

34. Under s 15(3) of the Act, a continuing order appointing the Public Guardian as the guardian of a person shall not be made in circumstances in which such an order can be made appointing some other person as the guardian.

35. As there was no-one available to be considered for the role as guardian, we were left with no option but to appoint the Public Guardian as PZI’s guardian.

Length of order and whether a non-reviewable order should be made

36. On an initial application, a guardianship order can be made up to one year and in some circumstances for a lengthier period.

37. Having heard and accepted Dr Y’s evidence as to the estimated length of time until PZI gives birth and the likely period of post-partum recovery, we decided to make an order for three months.

38. We also decided pursuant to s 16(2A) of the Act that it is in PZI’s best interests that this guardianship order should come to an end at the conclusion of the three-month term and it will not be automatically reviewed by the Tribunal unless the Tribunal is asked to do so. This reflects the basis upon which this application was made and considered, that is, the imminent birth of PZI’s child and the need for substitute decision-making at this time. As noted previously, if anyone involved in PZI’s care believes that another order would be in her interests after that time, then anyone with a genuine concern for her welfare may either seek a review of the current order or make a new application.

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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: 14 December 2021