QCM

[2015] NSWCATGD 38

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	QCM [2015] NSWCATGD 38
Hearing dates:	26 October 2015
Date of orders:	26 October 2015
Decision date:	26 October 2015
Jurisdiction:	Guardianship Division
Before:	R Booby, Senior Member (Legal) S Stone, Senior Member (Professional) J Koussa, General Member (Community)
Decision:	1.  Public Guardian appointed for a period of 12 months to make decisions about health care, medical and dental treatment and services. 2.  Public Guardian authorised to override objections to treatment.
Catchwords:	GUARDIANSHIP – application for guardianship order – existence of a Community Treatment Order under the Mental Health Act – interaction between the Guardianship and the Mental Health Act – effect of s 3C of the Guardianship Act – whether need for a guardian to make decisions about health care and services – no private person available – public guardian’s view’s considered – public guardian appointed   PRACTICE AND PROCEDURE – separate representative appointed – where the person who was the subject of the application did not participate in the hearing – notice adequately served – hearing proceeded in the person’s absence
Legislation Cited:	Guardianship Act 1987 (NSW) Mental Health Act 2007 (NSW)
Cases Cited:	Clyde Engineering Co Ltd V Cowburn (1926) 37 CLR IF v IG [2004] NSWADTAP 3 Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 141 CLR 672
Category:	Principal judgment
Parties:	Ms QCM (subject person) Ms JAC (applicant) The Public Guardian
Representation:	Separate Representative
File Number(s):	59787
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

GUARDIANSHIP APPLICATION

What the Tribunal decided

1. The Tribunal appointed the Public Guardian as Ms QCM’s guardian for a period of 12 months to make decisions on her behalf about her health care and medical and dental treatment and services which she should receive as set out in the Tribunal’s order. The guardian was authorised to override her objections to treatment.

Background

2. Ms QCM is 46 years old and resides in Southwest Sydney. She is reported to be estranged from family members.

3. On 22 June 2015 the Tribunal received an application seeking the appointment of a guardian for Ms QCM. The applicant was Ms JAC who is Ms QCM’s case manager with a Community Mental Health Service.

4. The matter was listed to be heard on 14 August 2015 but on that occasion the matter was adjourned for approximately two months and the Tribunal ordered that Ms QCM be separately represented. The Tribunal also directed that the applicant provide the Tribunal with any written submissions setting out the basis of the application and the specific decision-making functions being sought and the effect on any order of s 3C of the Guardianship Act 1987 (NSW) taking into account the existence of a Community Treatment Order dated 26 August 2014 made under the Mental Health Act 2007 (NSW).

The hearing

5. At the end of these Reasons for Decision are lists of the parties to the application and the witnesses who attended the hearing [appendix removed for publication].

6. Ms QCM did not participate in the hearing. Ms JAC said that she had provided Ms QCM with the Notice of Hearing and had seen her the week prior to the hearing and she had said that she would not attend the hearing.

7. Mr Y, the separate representative of Ms QCM, said that when he discussed the hearing with her she said that she would not be attending and she terminated the discussion.

8. The Tribunal was satisfied that Ms QCM had been provided with notice of the hearing and had been provided with an adequate opportunity to attend the hearing and present her views. The Tribunal decided therefore that it should proceed with the hearing despite Ms QCM’s absence.

What did the Tribunal have to decide?

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

• Is Ms QCM 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 Ms QCM 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 Guardianship Act (‘the Guardianship 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), Guardianship 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; 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), Guardianship Act).

11. In her application Ms JAC indicates that Ms QCM has a mental illness and describes her as chronically psychotic. She also states that Ms QCM has a number of physical health conditions including being hypertensive and hyperglycaemic and that she lacks insight into her conditions.

12. The Tribunal had regard to a number of documents regarding Ms QCM’s condition:

1. In a report dated 29 April 2015 Dr Z, a psychiatrist, indicates that Ms QCM has a severe mental illness and states that her condition has deteriorated over the past ten years.

2. A Community Treatment Order made by the Mental Health Review Tribunal on 25 August 2015 records that Tribunal’s satisfaction that Ms QCM has ongoing delusions and a history of significant risk to herself.

3. In a report to the Tribunal dated 28 August 2015 Ms JAC and Dr Z provide the following additional information:

1. As a result of her mental illness Ms QCM is not able to communicate appropriately with service providers. For example In December 2013 her electricity supply was disconnected due to unpaid bills. She was unable to take steps to reconnect the power and had been without power and hot water for almost 12 months prior to the intervention of the Assertive Outreach Team.

2. Ms QCM has a long history of mental illness and relapse of symptoms following non-compliance with treatment. These incidents have resulted in serious risks to herself and others.

13. It was agreed by all those participating in the hearing that as a result of her mental illness Ms QCM is restricted in her ability to make important lifestyle decisions and is as a result at least partially unable to manage her person.

14. Taking into account all of the evidence, the Tribunal is satisfied that Ms QCM has a disability which prevents her making important life decisions. She is therefore a person for whom the Tribunal could make an 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 Guardianship 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). When undertaking this task the Tribunal may be guided by the principles that are set out in s 4 of the Guardianship Act (see IF v IG [2004] NSWADTAP 3).

17. As noted above, Ms QCM did not participate in the hearing and the Tribunal was therefore unable to ascertain her views. In their report Ms JAC and Dr Z state that Ms QCM has not provided consent for them to contact her family members and that as far as it was known she is socially isolated and lacks meaningful relationships with family members.

18. In the absence of Ms QCM from the hearing and the lack of information about her family members or cultural environment, the Tribunal was unable to assess the effect of an order on those matters.

19. In her application and during the hearing Ms JAC expressed view that a guardianship order is required for Ms QCM because she refuses to accept her monthly injection of her anti-psychotic medication. In relation to this matter she said:

1. Compliance is only achieved by issuing warning letters under Ms QCM’s Community Treatment Order and then pursuant to those warnings attending her house with police officers. She then usually consents to the medication as an alternative to being transported to hospital under Community Treatment Order breach procedures.

2. In the opinion of Ms JAC, a guardianship order with authority to override objections to treatment would enable to administration of the antipsychotic medication without the need for the warning letters.

3. Even if the police were required to assist in administering the medication the procedure under guardianship would be less stressful for Ms QCM because there would be no need for the preceding Community Treatment Order breach letters which have the effect of making Ms QCM aggressive and threatening.

20. In a submission to the Tribunal dated 21 October and orally during the hearing, Mr Y provided his views regarding the appropriateness of making a guardianship order to enforce the administration of the antipsychotic medication. His views are to the following effect:

1. Ms QCM is subject to a current Community Treatment Order.

2. Sections 50 to 67 of the Mental Health Act provide a detailed scheme for the making and implementation of community treatment orders including obligations on both the patient and the treating facility and including procedures to be adopted in respect of breaches of the orders.

3. The provisions of the Mental Health Act include that police are only to used for the purpose of conveying a patient to a mental health facility and that the forced administration of medication can only take place at a declared mental health facility where staff are trained in the use of force and that use of force is subject to monitoring and control. The forced administration of medication in a person’s home lacks the safeguards provided under the provisions of the Mental Health Act.

4. The objects of the Mental Health Act include:

(s 3(a) “to provide for the care and treatment of, and the promote the recovery of, persons who are mentally ill…; and

(s 3(b) “to facilitate the care and treatment of those persons through community care facilities …”

5. Section 57(5) of the Mental Health Act authorises a person administering a community Treatment order to enter the land (but not the dwelling) of an affected person for the purpose of administering the order.

6. The objects of the Mental Health Act and the detailed scheme for making and implementing community treatment orders make it clear that it is intended that the Mental Health Act is intended to establish how involuntary mental health treatment should be carried out in the community and that limits are imposed on the way such treatment is to be carried out.

7. Section 3C of the Guardianship Act provides that a guardianship order is only effective to the extent that the terms of the order are consistent with any determination made under the Mental Health Act.

8. The decision of the High Court in the matter of Clyde Engineering Co Ltd V Cowburn (1926) 37 CLR establishes that the term “inconsistent” is not limited to meaning that there is a “direct conflict.” In that matter Isaac J at [489] expressed the view that the vital question was whether the second Act on its true construction intended to cover the whole ground and therefore to supersede the first Act. If a competent legislature expressly or impliedly evinces its intention to cover the whole field that is the conclusive test of inconsistency where another legislature seeks to enter to any extent on the same field.

9. Following the reasoning of Isaacs J it could be said that where a state Act makes detailed provisions about a matter, including placing limitations on the use of force in the community, that legislation is intended to cover the field and not to be subject to the more general provisions of another Act.

10. Even without relying on the precedent established in the above matter, the general principle of statutory construction “generalia specialibus non derogant” (where there is conflict between general and specific provisions, the specific provisions shall apply) would prevent the Tribunal from empowering a guardian to impose conditions similar to a community treatment Order without the limitations contained in the Mental Health Act.

11. In the matter of Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 141 CLR 672 Mason J expressed the view that where an Act provides both a general power and a specific power the general power cannot be exercised to do that which is the subject of the special power. Whilst in this matter the issues related to powers under the same Act the principle still applies to the interpretation of provisions under different Acts.

12. Following the analysis set out above, appointing a guardian with functions aimed at enforcing psychiatric treatment in the community would be inconsistent with the provisions of the Mental Health Act 2007 in respect of community treatment orders and therefore would be ineffective due to the operation of s 3C of the Guardianship Act.

13. During the hearing Mr Y added that in his view, the analysis set out above applies equally to any attempt to provide for hospital treatment of Ms QCM’s mental illness outside the provisions of the Mental Health Act.

21. The Tribunal considered Mr Y’s submission and accepts his conclusion that for the reasons he sets out it should not make an order for the purposes of providing a scheme by which a guardian might seek to impose involuntary treatment otherwise ordered under a Community Treatment Order, or otherwise provided for under the Mental Health Act and that any such order would be rendered ineffective by the operation of s 3C of the Guardianship Act.

22. Having reached that conclusion the Tribunal considered whether there were any other reasons for appointing a guardian.

1. In their report dated 28 August 2015 Ms JAC and Dr Z state that Ms QCM’s blood pressure has been consistently elevated (more than 200Hg systolic) and seems to be getting worse. She also has high blood glucose levels, is obese and mild abnormalities have been detected in an echocardiogram. A cardiologist has expressed the view that Ms QCM is at high risk of a keto-acidotic crisis and that she requires more frequent monitoring.

2. In her application and oral evidence, Ms JAC states that Ms QCM refuses to engage with a general practitioner. When she is taken to the emergency department of a hospital under the community treatment order or because of physical health issues her physical condition is reviewed. She expressed the view that a guardian with consent to override Ms QCM’s objections to treatment could consent to treatment of her physical health condition should she be in circumstances where those checks could be conducted but for her objections.

3. During the hearing it was agreed by those in attendance that Ms QCM would benefit from the involvement of services to monitor her physical health and her compliance with medication for her medical conditions and that she would benefit [from] the provision of services from an agency established to assist people with a mental illness to remain safely in the community. It was accepted however that she is unlikely to accept those services.

23. The Tribunal accepts that there is a need for decisions to be made about Ms QCM’s health care and the treatment of her physical health problems.

24. The Tribunal was also of the view that there is a need to make decisions about whether and which services might assist Ms QCM to cope with her circumstances in the community.

25. The Tribunal accepts that there are likely to be real issues in implementing decisions about health care and medical treatment and services for Ms QCM but was of the view that implementation problems should not prevent the making of an order where decisions are considered necessary.

26. Taking all of these matters into consideration the Tribunal was satisfied that it should make an order appointing a guardian to make decisions for Ms QCM about her health care, medical treatment and services.

27. The Tribunal was satisfied on the evidence of Ms JAC and Dr Z that Ms QCM’s objections to medical treatment arise as a result of her psychiatric condition and resultant lack of insight into her health, and the reasons for the treatment. The Tribunal was satisfied that the guardian should be authorised override Ms QCM’s objections to treatment.

Who should be the guardian?

28. As there is no private person available to be appointed as guardian, the Tribunal appointed the Public Guardian. The representative of the Office of the Public Guardian accepted that authority to override Ms QCM’s objections to treatment. In doing so she confirmed that the Public Guardian would not consider it was authorised to intervene with respect to the antipsychotic medication prescribed in accordance with a community treatment order applying to Ms QCM.

How long should the order last?

29. An initial guardianship order can be made for a period of up to one year from the date on which it was made.

30. The representative of the Public Guardian expressed the view that as the decisions of the guardian are likely to be difficult to implement the order should be reviewed in six months to evaluate whether it was appropriate.

31. The Tribunal carefully considered the view expressed by the representative of the Public Guardian but ultimately decided that given the complexities of the matter a shorter order might provide insufficient time to properly evaluate the effectiveness of the order. Accordingly the Tribunal decided to make the order for 12 months.

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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: 06 January 2016