SAQ

[2016] NSWCATGD 47

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	SAQ [2016] NSWCATGD 47
Hearing dates:	14 October 2016
Date of orders:	14 October 2016
Decision date:	14 October 2016
Jurisdiction:	Guardianship Division
Before:	A Boxall, Senior Member (Legal) Dr C West, Senior Member (Professional) B Epstein-Frisch, General Member (Community)
Decision:	The application for a guardianship order to be made for Mr SAQ is dismissed.
Catchwords:	GUARDIANSHIP – application for guardianship order – National Disability Insurance Scheme – long-standing friend willing to advocate in relation to NDIS issues – application dismissed
Legislation Cited:	Guardianship Act 1987 (NSW), ss 3(1), 3(2), 4, 14, 14(2)
Cases Cited:	IF v IG [2004] NSWADTAP 3
Category:	Principal judgment
Parties:	Mr SAQ (subject person) Mr TMD (applicant)
File Number(s):	33388
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

GUARDIANSHIP APPLICATION

What the Tribunal decided

1. The Tribunal dismissed the application for guardianship in relation to Mr SAQ made by Mr TMD.

Background

2. Mr SAQ is 64-years-old, and lives in northwest Sydney, in supported accommodation managed by rehabilitation and disability service provider (service provider). He has been diagnosed with an intellectual disability, and his father had supported him until his death in February 2006. On 21 June 2006, the Tribunal appointed the Public Guardian as Mr SAQ’s guardian for a period of three years, with the functions of health care and medical and dental consents, and appointed the NSW Trustee and Guardian as his financial manager. The guardianship order lapsed in June 2009. On 20 July 2016, the Tribunal received the present application from a Service Provider Area Manager from service provider, and on 6 October 2016, Mr TMD became the substitute applicant. The purpose of this hearing is to determine that application.

The hearing

3. 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.]

Does Mr TMD have standing to bring the application?

4. A person has standing to bring an application if he/she is:

1. The person who is the subject of the application;

2. The Public Guardian; or

3. Any other person who, in the opinion of the Tribunal, has a genuine concern for the welfare of the person.

5. The Tribunal found that Mr TMD has standing to make the application for a guardianship order because, as an executive with the service provider’s hospital, which provides Mr SAQ’s accommodation, Mr TMD can be considered as having a genuine concern for his welfare.

What did the Tribunal have to decide?

6. The questions which had to be decided by the Tribunal were:

• Is Mr SAQ someone for whom the Tribunal could make an order because he has a disability which prevents him from being able to make important life decisions?

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

• Who should be the guardian?

• How long should the order last?

Is Mr SAQ someone for whom the Tribunal could make an order because he has a disability which prevents him from being able to make important life decisions?

7. Section 14 of the Guardianship Act 1987 (NSW) (the Act) provides that the Tribunal may make a guardianship order for a person if it is satisfied that he/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 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 Act).

8. When the Tribunal made its original order in 2006, the Tribunal concluded that Mr SAQ had a relevant disability, namely an intellectual disability, which impaired his capacity to make decisions. Accompanying the present application was a Health Professional Report Form dated 28 August 2016, signed by Dr Z, who has been Mr SAQ’s doctor for six years. Dr Z states that Mr SAQ has a moderate to severe congenital intellectual disability, attributable to Prader-Willi Syndrome. Nothing in the Tribunal’s discussion with Mr SAQ gave it any reason to question the correctness of this view.

9. The Tribunal is satisfied that Mr SAQ has a disability which prevents him making important life decisions, being an intellectual disability referrable to Prader-Willi Syndrome. He is a person for whom the Tribunal could make a guardianship order.

Should the Tribunal make a guardianship order and what order should be made?

10. The Tribunal must consider all the following matters set out in s 14(2) of the Act before exercising its discretion to make a guardianship order:

1. the views (if any) of:

1. the person, and

2. the person's spouse, and

3. the person's carer and

2. the importance of preserving the person's existing family relationships, and

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.

11. 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). When undertaking this task, the Tribunal may be guided by the principles that are set out in s 4 of the Act (see IF v IG [2004] NSWADTAP 3).

12. The primary motivation for the application was the roll-out of the National Disability Insurance Scheme (NDIS) system, and in particular Mr SAQ’s likely need for assistance and support in establishing entitlements under, and designing the terms of his participation in, that system. In most other aspects of his life, either no decisions were required – for example, his accommodation was stable, and he followed a regular healthcare plan – or he had the benefit of support from his accommodation providers or his long-standing friend and advocate, Ms EUM. Indeed, the evidence provided showed that in practice the combined effect of this support and advocacy had been to establish a sound basis for Mr SAQ to proceed with NDIS funding.

13. So far as treatment decisions were concerned, to the extent that these were beyond Mr SAQ’s capacity, then either Ms EUM, as a close friend, could act as responsible person or the Tribunal could make them on Mr SAQ’s behalf.

14. The Tribunal decided on the basis of all of this evidence that a guardianship order was not necessary, and should therefore not be made.

15. That being the case, there was no need to consider the other questions referred to above.

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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: 16 March 2017