QMU

[2017] NSWCATGD 19

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

QMU [2017] NSWCATGD 19

Hearing dates:

Tuesday 25 April 2017 at St George Hospital

Date of orders:

25 April 2017

Decision date:

25 April 2017

Jurisdiction:

Guardianship Division

Before:

J Simpson, Senior Member (Legal)
Dr G Jamieson, Senior Member (Professional)
E Pickering, General Member (Community)

Decision:

1. A guardianship order is made for Mr QMU.
2. The Public Guardian is appointed as the guardian.
3. This is a continuing guardianship order for a period of 3 months from the date of this order.
4. This is a limited guardianship order giving the guardian custody of Mr QMU to the extent necessary to carry out the functions below.

FUNCTIONS:

5. The guardian has the following functions:

a) Accommodation

 To decide where Mr QMU may reside.

b) Health Care

 To decide what health care Mr QMU may receive.

c) Medical and Dental Consent

 

To make substitute decisions about proposed minor or major medical or dental treatment when Mr QMU is not capable of giving a valid consent.

 CONDITIONS:

6. The conditions of this order are:

a) In exercising this role the guardian shall take all reasonable steps to bring Mr QMU to an understanding of the issues and to obtain and consider his views before making significant decisions.

Catchwords:

GUARDIANSHIP – application for guardianship order – subject person in hospital – disagreement between person responsible and treating team about treatment options – active treatment or palliative care – after hours hearing – Public Guardian appointed

Legislation Cited:

Guardianship Act 1987 (NSW), ss 3(1),3(2), 4, 14(1),14(2), 15(3), 17(1)

Cases Cited:

IF v IG & Others [2004] NSWADTAP 3

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Mr QMU
Mrs FZU (applicant and wife)
The NSW Public Guardian

Representation:

Nil

File Number(s):

65583

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

What the Tribunal decided

1. We appointed the Public Guardian for three months to make decisions for Mr QMU about his accommodation, health care, and medical and dental consents.

Background

2. Mr QMU is a 50-year-old man who, at the time of the hearing, was a patient at a public hospital. His wife, Mrs FZU, had major concerns about the treatment Mr QMU was receiving and applied for a guardianship order. The application became urgent after hours and so the Tribunal conducted a hearing at the public hospital on Anzac Day.

3. Mrs FZU also applied for a financial management order but the Tribunal did not consider this application in the current hearing.

4. Mr and Mrs FZU have two children who attended the hearing, Miss NBU, aged 15, and Mr LXU, aged 11.

What did the Tribunal have to decide?

5. We had to decide:

• Does Mr QMU have a disability which prevents him from being able to make some important life decisions?

• Should we make a guardianship order and if so, what order should we make?

• Who should be the guardian?

• How long should the order last?

6. To put (1) above more precisely using the words in the Guardianship Act 1987 (NSW), we had to be satisfied that Mr QMU has a disability which restricts him in one or more major life activities to the extent that he requires supervision or social habilitation, and that, as a result, he is at least partially incapable of managing his person. (Guardianship Act, ss 14(1), 3(1) (definition of “person in need of a guardian”), and 3(2))

7. When deciding whether to make a guardianship order, we needed to take account of all relevant factors, including those listed in s 14(2) of the Guardianship Act. These are about the views of Mr QMU and any spouse and unpaid carer, preserving family relationships, preserving cultural and linguistic environments, and the practicability of services being provided without a guardianship order. We could be guided by the principles in s 4 of the Guardianship Act which cover some of the same issues as s 14(2) but also emphasise minimum intrusion on a person’s freedom, encouragement of self-reliance and a normal life in the community, protection from neglect, abuse and exploitation, and the person’s interests being paramount. In the end, we have a broad discretion whether to make a guardianship order (IF v IG & Others [2004] NSWADTAP 3).

Did Mr QMU have a disability which prevented him from being able to make some important life decisions?

8. Mr QMU had cancer and, from our time with him, he was clearly very physically weak and needing considerable physical assistance. However, there was no suggestion that he was unable to understand and make life decisions until very recently. Dr Z, treating surgeon, told us that in his view, Mr QMU had been able to make his own decisions about treatment until the morning of the hearing. However, with his deteriorating condition, he now had lower consciousness. This was partly due to renal failure.

9. Mrs FZU said that her husband understood about treatment decisions until his recent gastric bypass operation. From about the middle of the week before the hearing, he had been spaced out. She wrote in her application that he was “toxic doped”.

10. We spoke to Mr QMU at his bedside prior to his being administered a further dose of an opioid. He found it very difficult to engage in conversation with us.

11. We accepted that Mr QMU currently had physical and cognitive impairments preventing him from being able to make important decisions in relation to his health care and accommodation and that he otherwise fulfilled the requirements for us to be able to make a guardianship order.

Should we make a guardianship order?

12. Mr QMU was currently receiving palliative care including opioid medication to control his pain. From the perspective of Dr Z, this was both what Mr QMU wanted and an appropriate treatment for him. He had had cancer for about five years and had progressive liver failure. There was no useful active treatment. Oncologists had been involved in this decision. The palliative care team had been seeing Mr QMU approximately daily.

13. Dr Z said that TPN nutrition had been stopped in very recent days because the palliative care team proposed that Mr QMU should move to another public hospital where TPN nutrition cannot occur. In any case, TPN was not appropriate now. Mr QMU, who had good capacity to make decisions about his treatment plan until now, supported the plan for palliation.

14. In her application and evidence in the hearing, Mrs FZU fiercely disagreed with the current approach to treatment. She was opposed to the use of opioid medication and wanted active treatment. She wanted TPN nutrition to be reinstated. She saw her husband as “deteriorating under constant onslaught of drugs injected and blood taken…He is being killed with toxicity.” She complained that the hospital had not allowed her to take Mr QMU for a second consultation three weeks ago. He needed to be overseas for his life to be saved.

15. Mrs FZU saw her husband as wanting to get well after his gastric bypass. He was not into palliative care.

16. Mrs FZU favoured medicinal marijuana as an alternative, if necessary, to opioids.

17. Mrs FZU was not opposed to her husband going to the other public hospital if he wanted but she saw this as an option for respite rather than just palliative care.

18. Mrs FZU felt that her husband could recover including by going overseas for treatment as he has before.

19. Miss NBU said that her father had understood decisions until today. He wanted to die and knew that he was in palliation. Miss NBU supported Dr Z’s point of view and Mr LXU agreed with his sister.

20. There was a proposal that Mr QMU should move to the other public hospital for palliative care.

21. We found it very difficult to obtain clear views from Mr QMU who was drowsy when we spoke to him. He said that he understood our explanation about the application. He said that he would like to go to the other public hospital and be comfortable. In response to our saying that Dr Z said there was no more that he could do to cure him and just wanted to make him feel better, Mr QMU said “Oh dear God, the [Dr Z]’s great.” He appeared to understand that Mrs FZU did not want to let him go. He said he had no complaints about his treatment.

22. In the absence of a guardianship order, Mrs FZU would be “person responsible” for her husband and therefore the person whose consent was generally required for any active treatment that he did not understand.

23. However, in view of the clear conflict between Mrs FZU and Dr Z, we were clear that we should make a guardianship order so that a guardian had clear authority both to consent to active treatment and to make broader health care decisions and decisions about Mr QMU’s accommodation. Decisions could not practicably be made about these issues without a guardianship order.

Who should be the guardian?

24. We had to be satisfied that any person appointed as a private guardian:

1. has a personality generally compatible with Mr QMU’s personality;

2. has no undue conflict of interest (particularly financial) with those of Mr QMU; and

3. is able and willing to exercise the functions of the order.

25. If there is no private person qualified to appoint as guardian or if the circumstances otherwise make it inappropriate to appoint a private person, we can appoint the Public Guardian. (Guardianship Act, ss 15(3) and 17(1))

26. Mrs FZU proposed that she be appointed as her husband’s guardian. This was opposed by Dr Z and Mr QMU’s children who all favoured the Public Guardian being appointed.

27. Clearly, Mrs FZU had a very strong focus on what she saw as her husband’s best interests. However, we preferred the evidence of the very well-qualified Dr Z in relation to the appropriate approach to treatment and in relation to Mr QMU’s wishes. In these circumstances, we were not satisfied that Mrs FZU was currently able to exercise the functions in the guardianship order. We therefore needed to appoint the Public Guardian.

How long should the order last?

28. The guardianship order is for three months and, if Mr QMU is still alive, there will then be a review hearing.

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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: 17 November 2017