QZU

[2019] NSWCATGD 29

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

QZU [2019] NSWCATGD 29

Hearing dates:

13 December 2019

Date of orders:

13 December 2019

Decision date:

13 December 2019

Jurisdiction:

Guardianship Division

Before:

B M Shipp, Senior Member (Legal)

Decision:

The guardianship order for QZU made on 14 December 2017 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 13 December 2019.

 

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

 

FUNCTIONS:

 

4. The guardian has the following functions:

 

a) Accommodation

 

To decide where QZU may reside.

 

b) Health care

 

To decide what health care QZU may receive.

 

c) Medical/Dental consent

 

To make substitute decisions about proposed minor or major medical or dental treatment, where QZU is not capable of giving a valid consent.

 

d) Services

 

To make decisions about services to be provided to QZU.

 

e) Restrictive Practices

 

To give or withhold consent as to whether the following restrictive practices should be used to influence QZU’s behaviour:

 

1. Chemical restraint

 

CONDITIONS:

 

5. The conditions of this order are:

 

a) Standard Condition

 

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

 

b) Restrictive Practices Condition

 

The guardian(s) may only consent to the use of the types of restrictive practices permitted under this order to influence QZU’s behaviour:

 

(i) as a last resort to prevent QZU harming himself or others; and

 (ii) in accordance with a behaviour support plan which has been developed by a behaviour support practitioner after having conducted a functional behavioural assessment upon QZU, and which is reviewed regularly (and no less than every 12 months) and/or reviewed as soon as practicable if there is a change in circumstances which requires the plan to be amended.

Catchwords:

GUARDIANSHIP – review of guardianship order – end-of-term review of guardianship order – whether a guardianship order needs to be made – need for accommodation decisions – need for ongoing health care and treatment decisions – restrictive practices – use of chemical restraint –– no person responsible available – no private person available to be appointed – Public Guardian appointed – order made.

Legislation Cited:

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

Cases Cited:

IF v IG [2004] NSWADTAP 3

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Review of Guardianship Order

  QZU (the person)
Public Guardian (appointed guardian)
NAH (carer)
NSW Trustee and Guardian

Representation:

Nil

File Number(s):

NCAT 2016/00391748

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. The Tribunal reviewed the previous guardianship order for QZU made on 14 December 2017 and renewed it for a period of two years. The Public Guardian (“the PG”) was appointed as guardian with authority to make decisions about his accommodation, health care, medical and dental treatment, access to services, and the use of chemical restraint as a restrictive practice.

Background

2. QZU is a 61-year-old man with cognitive and physical impairments resulting from a stroke and a learning disability. He also has long-standing vision and hearing loss.

3. He is divorced. He has two step-daughters and a sister. The main person previously involved in his life is his step-daughter, NAH.

4. QZU was living alone in Housing NSW accommodation in Inner West Sydney when the initial application was received in 2016 from his case manager. In December 2016, the Tribunal appointed the PG for 12 months to make decisions about his accommodation (including authorising others), health care, medical and dental treatment, services and legal services. On the same day, the Tribunal made a financial management order appointing the NSW Trustee and Guardian.

5. The guardianship order was reviewed on 14 December 2017. QZU was then living in a nursing home at West Sydney, but the PG was looking for something more age and culturally appropriate. A National Disability Insurance Scheme (NDIS) application had just been lodged. The Tribunal continued the guardianship order for a further two years with the PG appointed with the same functions.

6. QZU moved to an aged care facility in Southwest Sydney in February 2019.

7. The guardianship order is now due for further review.

The hearing

8. 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.]

9. QZU attended the hearing with Ms Z of a charitable organisation, Ms Y (Manager of Care Services at the aged care facility) and Ms X (Manager of Customer Support at the aged care facility). A Vietnamese interpreter also attended to assist QZU. Ms Rosemary Benitez from the Office of the PG participated by phone.

What did the Tribunal have to decide?

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

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

• Is QZU someone for whom the Tribunal could make an order because he continues to have a disability which prevents him 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 QZU someone for whom the Tribunal could make a further order because he continues to have a disability which prevents him from being able to make important life decisions?

12. 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”: Guardianship Act, s 3(1). 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: Guardianship Act, s 3(2).

13. When the first order was made in 2016, the Tribunal found that QZU’s memory and comprehension and vison and hearing had declined since his stroke in 2012, and that this had also affected his behaviour, including some fixed delusions. On this basis, the Tribunal found that QZU had a disability which rendered him unable to make important life decisions. I was provided with new evidence for this hearing. This included a geriatric assessment from Dr W from June 2019 and a summary care plan from the aged care facility. Neither of these documents specifically addresses QZU’s decision-making capacity, but there is reference to his continuing behaviours, as indicated in more detail below.

14. QZU did not appear to be aware of the reason for the hearing. He was focussed on not having access to his money. Ms Y indicated that QZU has dementia and PTSD (resulting from his experiences during the Vietnam war).

15. On the basis of the previous reports, and QZU’s current presentation, I am satisfied that QZU continues to have a disability which prevents him making important life decisions. He 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?

16. 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;

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.

17. 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).

18. The PG recommended continuing the guardianship order with the accommodation, health care, medical and dental treatment and a services function, and a new restrictive practices function. Ms Rosemary Benitez prepared the report for the Tribunal and participated by phone. Her reasons for these recommendations were as follows. Comments of the other participants are included where relevant:

1. QZU’s accommodation at the aged care facility in Southwest Sydney is permanent and his care needs are being adequately met. However, he remains a younger person in residential aged care. Ms Z is QZU’s support coordinator with the charitable organisation. She is in the process of arranging assessments and exploring alternative supported independent living and specialist disability accommodation options that may better suit QZU. Ms Z confirmed that a Vietnamese-speaking occupational therapist has been engaged to complete a functional skills assessment of QZU, to determine the type of accommodation model which might be suitable for QZU. This will commence in mid-January 2020 and will then be forwarded to NDIS for consideration.

2. QZU’s health care is stable but there are continuing issues with his behaviour including verbal and physical aggression towards staff. There have been various assessments which have resulted in the use of some alternative Calmologoy products that have assisted. Ms Y confirmed that QZU gets stressed quite easily. Further information about QZU’s behaviours, and the appropriate responses was provided in the Care Plan of the aged care facility and in the geriatric review referred to above.

3. QZU’s medication regime is stable including the major medications of Serenace and Temazepam PRN. QZU does not have the capacity to provide his own informed consent. There are ongoing decisions to be made about his health care, and medical and dental treatment. The aged care facility staff confirmed that the Serenace is a regular medication. The Temazepam has been used sparingly.

4. QZU has an NDIS plan which includes support coordination, occupational therapy, clinical and behavioural support, speech therapy, physiotherapy and plan management. There will be ongoing decisions to be made about his NDIS service supports.

5. There are no continuing legal issues involving QZU. All involved agreed.

6. QZU’s Serenace is primarily prescribed for behaviour management purposes. This should be regarded as a Chemical Restraint, making it appropriate and necessary to include a restrictive practices function in the guardianship order. This will allow the PG to consider whether QZU’s psychotropic regime does constitute chemical restraint and whether consent should be provided. Ms Z confirmed that the Serenace was used as a restrictive practice in her view.

19. I was also informed that NAH now has little contact with QZU. Ms Y and Ms Z noted that the people in QZU’s social network do not wish to take on any decision-making responsibility, and did not wish to be consulted regarding the NDIS planning process for QZU.

Consideration

20. Based on the above evidence, I have decided that a further guardianship order should be made, with the functions of accommodation, health care, medical and dental treatment, access to services and the use of chemical restraint as a restrictive practice. The following factors are of most significance:

1. There is ongoing consideration about the most suitable form of accommodation for QZU.

2. The potential for a change in QZU’s accommodation means there is a real potential for him requiring changed NDIS-funded and other services.

3. QZU remains on major medications for which informed consent is required. He cannot give this consent himself in a fully informed way, and currently has no-one in his life available to act as his Person Responsible. He also has a range of physical and sensory issues that require close monitoring and treatment.

4. Serenace appears to be being used as a chemical restraint which amount to restrictive practices for which formal consent is required under the NDIS guidelines. Having a guardian in this area of his life will allow independent consideration of the use of this pharmaceutical approach, as it applies to QZU, to ensure it focusses on QZU’s needs, in the context of other positive programming, and presents no greater restriction on QZU’s life than is required for his overall health and wellbeing.

Who should be appointed as the guardian?

21. As there remains no private person available to be appointed as guardian, I have again appointed the Public Guardian.

How long should the order last?

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

23. I have decided to make an order for two years because, given the possible changes in QZU’s care arrangements, it is likely that he will require the formal decision-making of a guardian for at least this period of time.

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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: 28 May 2020