QZS

[2020] NSWCATGD 41

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

QZS [2020] NSWCATGD 41

Hearing dates:

7 April 2020

Date of orders:

7 April 2020

Decision date:

07 April 2020

Jurisdiction:

Guardianship Division

Before:

E Connor, Senior Member (Legal)

Decision:

The guardianship order for QZS made on 02 April 2019 has been reviewed. The order now is as follows:

1. The Public Guardian is appointed as the guardian.

2. This is a continuing guardianship order for a period of two years from 7 April 2020.

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

FUNCTIONS:

4. The guardian has the following function:

a) Health care

To decide what health care QZS may receive.

CONDITION:

5. The condition of this order is:

a) Standard Condition

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

Catchwords:

GUARDIANSHIP – end-of-term review of guardianship order – whether a guardianship order should be made – advanced care directive invalidly made by relatives upon request from aged care facility - no longer a need for services or accommodation function – no need for medical and dental consent function with persons responsible available – family conflict – Public Guardian appointed - order made.

Legislation Cited:

Guardianship Act 1987 (NSW), ss 3(1)-(2), 4, 14, 14(2); Pt 5

Cases Cited:

FI v Public Guardian [2008] NSW ADT 263

Hunter and New England Area Health Services v A [2009] NSWSC 761

IF v IG [2004] NSWADTAP 3

Texts Cited:

Nil

Category:

Principal judgment

Parties:

QZS
KAS
NSW Public Guardian

Representation:

Nil

File Number(s):

NCAT 2019/00046920

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

Background

1. QZS is an 86-year-old woman who is a resident at an aged care facility in West Sydney. She has six children: CZ, EY, FX, HW, MV and HU. HU’s wife, KAS, was QZS’s carer prior to her moving into the aged care facility.

2. The Tribunal has previously accepted evidence that QZS had dementia.

3. On 2 April 2019 the Tribunal committed the management of QZS’s estate to the NSW Trustee and Guardian and appointed the Public Guardian as her guardian for 12 months with the functions of accommodation, health care, medical and dental consents, and services.

The hearing

4. At the end of these Reasons for Decision are lists of the parties to the review and the witnesses who attended the hearing. [Appendix removed for publication.]

Settlement

5. The Tribunal may, where it considers appropriate, use resolution processes to bring the parties to a settlement. There was ongoing conflict between some of QZS’s children but they all agreed that she should remain at the aged care facility and that the Public Guardian should continue to have responsibility for decisions relating to QZS’s health care.

STATUTORY REVIEW OF GUARDIANSHIP ORDER

What did the Tribunal have to decide?

6. On reviewing the current guardianship order the Tribunal may renew, renew and vary the order or determine that the order is to lapse.

7. The questions to be considered by the Tribunal are:

• Is QZS someone for whom the Tribunal could make an order because she continues to have a disability which prevents her from being able to make important life decisions?

• Should the Tribunal make a further guardianship order and if so, what order should be made?

• Who should be the guardian?

• How long should the order last?

Is QZS someone for whom the Tribunal could make a further order because she continues to have a disability which prevents her from being able to make important life decisions?

8. Section 14 of the Guardianship Act 1987 (NSW) 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”: s 3(1) of the 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 2007 (NSW); 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) of the Guardianship Act.

9. The Tribunal has previously accepted evidence that QZS had dementia as a result of which she is unable to make important life decisions.

10. Dr T, general practitioner, provided a Health Professional Report Form dated 16 March 2020. He has known QZS for 20 years and states that she has severe dementia.

11. It was uncontentious that QZS has dementia and I am satisfied that she continues to have a disability which prevents her making important life decisions. She is a person for whom the Tribunal could make a further guardianship order.

Should the Tribunal make a further guardianship order and if so, what order should be made?

12. 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 further guardianship order:

1. the views (if any) of:

1. the person;

2. the person’s spouse;

3. the person’s carer; and

2. the importance of preserving the person’s existing family relationships;

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.

13. 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) of the Guardianship Act. 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).

14. Ms F represented the Public Guardian during the hearing. She gave evidence that no decisions have been made by the Public Guardian during the term of the guardianship order made approximately 12 months ago and no consents to treatment have been requested. QZS only takes minor medications on a routine basis and a major medication prescribed for agitation has rarely been administered.

15. Ms F reported that an officer from the Public Guardian met with QZS independently of any family members. QZS stated that she wanted to remain at the aged care facility. It is in the area where she has lived for the past 60 years and she has regular visitors. Ms F noted that the Public Guardian has not received any proposal in relation to alternative accommodation for QZS during the term of the order.

16. MV stated that she now believes it is preferable for QZS to remain at the aged care facility where she is settled. She also noted that it would no longer be possible for her mother to be moved as a result of COVID-19. MV remains concerned, however, that her mother’s medical needs are not being met appropriately. QZS has macular degeneration for which she used to have regular injections but these ceased when she moved into the aged care facility. MV believes that even though her mother cannot read or watch television, it is important that her sight is preserved as much as possible. MV also has concerns about the management of her mother’s ongoing urinary tract infections; the lack of air-conditioning in her mother’s room; and the alleged cancellation of a hair appointment for her mother by CZ.

17. KAS gave evidence that QZS continues to have urinary tract infections but the aged care facility is managing this. KAS confirmed that QZS was having injections for macular degeneration prior to being placed at the aged care facility but that she is no longer capable of going to the surgery for treatment. KAS stated that QZS no longer reads or watches television.

18. Ms S is the general manager of the aged care facility. She stated that eye specialists will not attend the aged care facility to give QZS injections. QZS is checked on a monthly basis to determine if she has a urinary tract infection and is encouraged to drink but often refuses.

19. CZ denied cancelling his mother’s hair appointment and stated that he is happy with QZS’s accommodation and care at the aged care facility. He noted that his mother sometimes refuses services such as haircuts as a result of her dementia.

20. Ms R, Manager Care and Lifestyle, said that the facility is centrally air-conditioned. It was agreed that QZS’s room may be less adequately cooled than others because of its location. However, this has to be weighed up against its proximity to the nurses’ station which is viewed as beneficial. Ms R confirmed that QZS is not taking any major medications.

21. I asked Ms R to explain the purpose of a document titled ‘Future Treatment Orders’ (FTO) which had been signed on 19 March 2020 by Ms R, CZ and KAS. She stated that the relatives of residents are requested to sign this document (often referred to as an ‘Advanced Care Directive’ (ACD)) if the resident is unable to do so.

22. Ms F stated that the Public Guardian was not consulted in relation to the preparation of this document.

23. The FTO is not a valid document. In order to be valid, such a document must be signed by the person to whom it relates after being informed of the purpose and effect of the FTO at a time when that person is able to understand the facts and choices involved and the consequences of their decisions. An FTO cannot be signed by any other person.

24. In Hunter and New England Area Health Services v A [2009] NSWSC 761, McDougall J summarises the principles relating to emergency care decisions, including ACDs. His Honour states at [40]:

(6)   A person may make an “advance care directive”: a statement that the person does not wish to receive medical treatment, or medical treatment of specified kinds. If an advance care directive is made by a capable adult, and is clear and ambiguous, and extends to the situation at hand, it must be respected.

…

(11)    What appears to be a valid consent given by a capable adult may be ineffective if it does not represent the independent exercise of persons (sic) volition: if, by some means, the person’s will has been overborne or the decision is the result of undue influence, or of some other vitiating circumstance.

25. The apparent lack of understanding of the facility about what is required for an ACD or FTO, a very significant legal document, to be valid is of great concern.

26. There is a regime set out in Part 5 of the Guardianship Act for a ‘person responsible’ to provide lawful substitute consent for the carrying out of certain medical or dental treatment, without being appointed by the Tribunal as a guardian. This regime, however, relates only to proactive medical interventions (FI v Public Guardian [2008] NSW ADT 263 at [40]). A person responsible is not authorised to make decisions about the withdrawal, cessation or non-provision of life-sustaining treatment.

27. In circumstances in which a guardian is appointed under the Guardianship Act with a medical and dental consent function, unless they also have a health care function, they do not have the authority to decide to withdraw life-sustaining treatment for the person under guardianship. However, a guardian appointed with a health care function does have the authority to make decisions in connection with health care that include decisions to withdraw life-sustaining treatment (FI v Public Guardian [2008] NSW ADT 263 at [51]).

28. After considering the oral and written evidence presented, I am satisfied that a guardianship order should continue for QZS and that the guardian should have authority to make decisions about her healthcare.

29. This will enable the guardian to investigate whether or not QZS can receive injections for her macular degeneration at the aged care facility or whether there is another appropriate form of treatment for the condition. The guardian will also be able to ensure that QZS’s urinary tract infections are appropriately monitored and treated.

30. The guardian will also, if necessary, and after consulting all family members, be able to make decisions about the withdrawal or withholding of life-sustaining treatment for QZS.

31. I did not include a medical and dental consent function on the recommendation of Ms F given that QZS does not take any major medications. I note that QZS has a number of family members who may be considered as her ‘Persons Responsible’ if consent to treatment is required (as opposed to the withholding of treatment). If there is conflict within the family about such treatment, an application may be made to the Tribunal either for the guardianship order to be reviewed and the functions varied, or for consent to the treatment to be provided by the Tribunal.

32. There is no ongoing need for an accommodation or services function given that QZS’s children are now in agreement that she should remain at the aged care facility. Discussions about what room she should occupy within the facility can be discussed with management on an informal basis.

Who should be appointed as the guardian?

33. The Public Guardian was appointed as QZS’s guardian on the last occasion. Given the ongoing conflict within the family, I reappointed the Public Guardian.

How long should the order last?

34. On review, a guardianship order can be renewed for a period of up to three years from the date on which it was made.

35. With the agreement of Ms F, I decided to make an order for two years.

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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 March 2021