QXB - [2018] NSWCATGD 18

NSW Civil and Administrative Tribunal

New South Wales

Amendment notes

Medium Neutral Citation: QXB [2018] NSWCATGD 18
Hearing dates: 6 April 2018
Date of orders: 06 April 2018
Decision date: 06 April 2018
Jurisdiction: Guardianship Division
Before: R H Booby, Senior Member (Legal)
Dr B McPhee, Senior Member (Professional)
F N Given, General Member (Community)
Decision:
The application for consent to medical treatment is dismissed after hearing.
The application for a Guardianship Order is dismissed because Justice Health and Forensic Mental Health Network sought to withdraw the application and the Tribunal consented to the withdrawal
Catchwords:
GUARDIANSHIP – application for a guardianship order – standing to bring application – 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) – standing of Justice Health and Forensic Mental Health Network to bring an application – procedure – procedural fairness and natural justice – notice of hearing as required by s 10 of Guardianship Act – hearing proceeded in absence of subject person – balance between procedural fairness and duty to protect the welfare and the interests of the subject person – reasonable opportunity to be heard – consideration of views of subject person with a disability – application withdrawn
CONSENT TO MEDICAL OR DENTAL TREATMENT – mandatory considerations in s 42(2) of the Guardianship Act – consent refused
Legislation Cited: Guardianship Act 1987 (NSW), pt 5; ss 32, 44, 44(3)
Guardianship and Administration Act 1990 (WA), s 109(1)(b)
Health Services Act 1997 (NSW), s 11
Mental Health Act 2007 (NSW), 68
Mental Health (Forensic Provisions) Act 1990 (NSW), pt 5, s 40
High Court Rules 2016 (NZ), r 66(9)
Cases Cited: Minister for Conservation McCully v Whangamata Marina Society Inc and Anor [2006] NZCA 209 (11 August 2006)
MZT [2018] NSWCATGD 8
Onus v Alcoa Of Australia Ltd [1981] HCA 50; (1981) 149 CLR 27
Texts Cited: Nil
Category: Principal judgment
Parties:
009: Guardianship Application

Ms QXB (the person)
Justice Health & Forensic Mental Health Network (applicant)
Public Guardian

010: Consent to Medical or Dental Treatment
Ms QXB (the person)
Justice Health & Forensic Mental Health Network (applicant)
Representation: Nil

File Number(s): NCAT 2013/00391857
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

Background

Ms QXB is 26 years old and at the time of the hearing she was a patient at the Forensic Hospital having been found not guilty of a crime due to mental illness.
On 25 March 2015, the Tribunal appointed the Public Guardian to make decisions for Ms QXB about her accommodation and service.
On 20 June 2016, the order was reviewed and the Public Guardian was reappointed with the function of making decisions about Ms QXB’s legal services for six months to…

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.

Continue reading QXB

Details

AGLC: QXB [2018] NSWCATGD 18
Case: [2018] NSWCATGD 18
Decision Date: 06 April 2018

CaseChat Overview and Summary

The case before the Tribunal involved an application by the Justice Health and Forensic Mental Health Network for a Guardianship Order under the Guardianship Act 1987 (NSW) and for consent to medical treatment in relation to a subject person who was detained in custody. The subject person had an intellectual disability, and the Network sought the orders on the basis of a genuine concern for the person's welfare. The Tribunal was required to consider the Network's standing to bring the application, as well as the mandatory considerations set out in the Guardianship Act, including the subject person's views and the need to balance procedural fairness and the duty to protect the welfare and interests of the subject person.

The primary legal issues before the Tribunal were whether the Network had standing to bring the application for a Guardianship Order and whether the application for consent to medical treatment should be granted. The Tribunal considered the meaning of "genuine concern for the welfare of the person" under section 9(1)(d) of the Guardianship Act and the requirement for procedural fairness and natural justice under section 10 of the Act. The Tribunal also had to consider the mandatory considerations set out in section 42(2) of the Guardianship Act, including the subject person's views and the need to balance procedural fairness and the duty to protect the welfare and interests of the subject person.

The Tribunal found that the Network had standing to bring the application for a Guardianship Order, as it had a genuine concern for the welfare of the subject person. However, the Tribunal noted that the hearing had proceeded in the absence of the subject person, and that the Network had sought to withdraw the application. The Tribunal considered the need to balance procedural fairness and the duty to protect the welfare and interests of the subject person, and concluded that it was in the subject person's best interests for the application to be withdrawn. The Tribunal also found that the subject person had expressed a clear and consistent view that he did not want to consent to the medical treatment proposed, and that this view should be respected. Accordingly, the application for consent to medical treatment was dismissed.

The Tribunal dismissed the application for a Guardianship Order because the Network had sought to withdraw the application and the Tribunal consented to the withdrawal. The Tribunal noted that the subject person had been given a reasonable opportunity to be heard, and that his views had been considered in reaching its decision. The Tribunal also noted that the Network had a duty to protect the welfare and interests of the subject person, and that this duty was balanced against the need for procedural fairness. The Tribunal's decision was based on the specific circumstances of the case, and it did not set a precedent for future cases.

Orders

Orders of the court

The application for consent to medical treatment is dismissed after hearing.

The application for a Guardianship Order is dismissed because Justice Health and Forensic Mental Health Network sought to withdraw the application and the Tribunal consented to the withdrawal

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	QXB [2018] NSWCATGD 18
Hearing dates:	6 April 2018
Date of orders:	06 April 2018
Decision date:	06 April 2018
Jurisdiction:	Guardianship Division
Before:	R H Booby, Senior Member (Legal) Dr B McPhee, Senior Member (Professional) F N Given, General Member (Community)
Decision:	The application for consent to medical treatment is dismissed after hearing. The application for a Guardianship Order is dismissed because Justice Health and Forensic Mental Health Network sought to withdraw the application and the Tribunal consented to the withdrawal
Catchwords:	GUARDIANSHIP – application for a guardianship order – standing to bring application – 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) – standing of Justice Health and Forensic Mental Health Network to bring an application – procedure – procedural fairness and natural justice – notice of hearing as required by s 10 of Guardianship Act – hearing proceeded in absence of subject person – balance between procedural fairness and duty to protect the welfare and the interests of the subject person – reasonable opportunity to be heard – consideration of views of subject person with a disability – application withdrawn CONSENT TO MEDICAL OR DENTAL TREATMENT – mandatory considerations in s 42(2) of the Guardianship Act – consent refused
Legislation Cited:	Guardianship Act 1987 (NSW), pt 5; ss 32, 44, 44(3) Guardianship and Administration Act 1990 (WA), s 109(1)(b) Health Services Act 1997 (NSW), s 11 Mental Health Act 2007 (NSW), 68 Mental Health (Forensic Provisions) Act 1990 (NSW), pt 5, s 40 High Court Rules 2016 (NZ), r 66(9)
Cases Cited:	Minister for Conservation McCully v Whangamata Marina Society Inc and Anor [2006] NZCA 209 (11 August 2006) MZT [2018] NSWCATGD 8 Onus v Alcoa Of Australia Ltd [1981] HCA 50; (1981) 149 CLR 27
Texts Cited:	Nil
Category:	Principal judgment
Parties:	009: Guardianship Application Ms QXB (the person) Justice Health & Forensic Mental Health Network (applicant) Public Guardian 010: Consent to Medical or Dental Treatment Ms QXB (the person) Justice Health & Forensic Mental Health Network (applicant)
Representation:	Nil
File Number(s):	NCAT 2013/00391857
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)).