QVC - [2017] NSWCATGD 20

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: QVC [2017] NSWCATGD 20
Hearing dates: 17 May 2017
Date of orders: 17 May 2017
Decision date: 17 May 2017
Jurisdiction: Guardianship Division
Before: R Bailey, Senior Member (Legal)
Decision:
1. The Tribunal decided that Calvary Health Care (Newcastle) Ltd has standing to make a guardianship application for a patient.

Catchwords: INTERLOCUTORY – standing – does Calvary Health Care (Newcastle) Limited have standing to bring application –“affiliated health organisation” – consideration of s 9(1)(d) of the Guardianship Act 1987 (NSW) – “genuine concern for the welfare of the person” – consideration of s 21 of the Interpretation Act 1987 (NSW) – whether Calvary Health Care (Newcastle) Limited is a “person”
Legislation Cited: Guardianship Act 1987, ss 9, 9(1)(d)
Health Services Act 1997 (NSW), ss 13(3) 15(c), 62A, Sch 3
Interpretation Act 1987 (NSW), s 21
Cases Cited: EBI [2017] NSWCATGD 6
Minister for Disability Services v People With a Disability Inc (CSD) [2010] NSWADTAP 44
CJH v Department of Family and Community Services [2016] NSWCATAD 162
Texts Cited: Nil
Category: Principal judgment
Parties: Ms QVC (subject person)
Calvary Health Care (Newcastle) Limited (applicant)
The NSW Public Guardian
Representation: Nil

File Number(s): 65668
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

INTERLOCUTORY DECISION

What the Tribunal decided

The Tribunal determined that Calvary Health Care (Newcastle) Limited (CHCN) has the necessary standing to apply for a guardianship order in relation to a patient.

Background

Ms QVC is a 73-year-old woman, who is currently a patient at the Calvary Mater Hospital in Newcastle. She was previously admitted to two other public hospitals, due to a recent diagnosis of cervical cancer. Prior to her recent admissions, she lived alone in the family home in regional NSW, without the support of close family, friends or external service providers.
The Tribunal has been advised that Ms QVC has a longstanding diagnosis of schizophrenia.
On 3 May 2017, the Tribunal received an application for the appointment of a guardian from a social worker, on behalf of Calvary Health Care (Newcastle) Limited.
The Tribunal understands that Ms QVC does not object to the application.
Of its own motion, the Tribunal determined that an interlocutory hearing was required to determine the issue of whether CHCN has the necessary standing under s 9(1)(d) of the Guardianship Act 1987 (NSW) (the Act) to make an application for guardianship in relation to a patient.
The matter for determination is the issue of standing.
The Tribunal was assisted by written submissions tendered by Ms Penny Csederits, Senior Solicitor with the Crown Solicitor.
The Crown Solicitor noted that Ms QVC is currently a patient at Calvary Mater Newcastle. The original applicant is a social worker at that facility.
The Crown Solicitor submitted that Calvary Mater Newcastle is a public…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: QVC [2017] NSWCATGD 20
Case: [2017] NSWCATGD 20
Decision Date: 17 May 2017

CaseChat Overview and Summary

Calvary Health Care (Newcastle) Limited sought an interlocutory determination on whether it possessed the necessary standing to apply for the appointment of a guardian for a patient. The dispute centred on whether the health organisation qualified as an "affiliated health organisation" under section 9(1)(d) of the Guardianship Act 1987 (NSW), and whether it held a genuine concern for the welfare of the person, as required by section 21 of the Interpretation Act 1987 (NSW). The court needed to determine whether Calvary Health Care (Newcastle) Limited could be considered a "person" under the law, which would afford it the requisite standing to bring the application.

The court examined the statutory provisions and considered the specific requirements for standing to apply for a guardianship order. It focused on the definition of "affiliated health organisation" and whether Calvary Health Care (Newcastle) Limited fulfilled the criteria. The court also scrutinised whether the health organisation had a genuine concern for the welfare of the patient, as mandated by the law. The interpretation of the term "person" was pivotal in resolving whether the organisation could initiate such proceedings.

The Tribunal concluded that Calvary Health Care (Newcastle) Limited met the criteria of an "affiliated health organisation" and held a genuine concern for the patient's welfare. The court determined that the organisation could be considered a "person" within the meaning of the relevant statutory provisions. Consequently, it held that Calvary Health Care (Newcastle) Limited had the standing to make an application for a guardianship order for the patient.

The Tribunal's decision affirmed Calvary Health Care (Newcastle) Limited's standing to proceed with the guardianship application. This ruling allowed the health organisation to continue with its application to the Tribunal for the appointment of a guardian for the patient, ensuring that the patient's welfare would be properly safeguarded.

Orders

Orders of the court

1. The Tribunal decided that Calvary Health Care (Newcastle) Ltd has standing to make a guardianship application for a patient.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	QVC [2017] NSWCATGD 20
Hearing dates:	17 May 2017
Date of orders:	17 May 2017
Decision date:	17 May 2017
Jurisdiction:	Guardianship Division
Before:	R Bailey, Senior Member (Legal)
Decision:	1. The Tribunal decided that Calvary Health Care (Newcastle) Ltd has standing to make a guardianship application for a patient.
Catchwords:	INTERLOCUTORY – standing – does Calvary Health Care (Newcastle) Limited have standing to bring application –“affiliated health organisation” – consideration of s 9(1)(d) of the Guardianship Act 1987 (NSW) – “genuine concern for the welfare of the person” – consideration of s 21 of the Interpretation Act 1987 (NSW) – whether Calvary Health Care (Newcastle) Limited is a “person”
Legislation Cited:	Guardianship Act 1987, ss 9, 9(1)(d) Health Services Act 1997 (NSW), ss 13(3) 15(c), 62A, Sch 3 Interpretation Act 1987 (NSW), s 21
Cases Cited:	EBI [2017] NSWCATGD 6 Minister for Disability Services v People With a Disability Inc (CSD) [2010] NSWADTAP 44 CJH v Department of Family and Community Services [2016] NSWCATAD 162
Texts Cited:	Nil
Category:	Principal judgment
Parties:	Ms QVC (subject person) Calvary Health Care (Newcastle) Limited (applicant) The NSW Public Guardian
Representation:	Nil
File Number(s):	65668
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)).