SCO

[2015] NSWCATGD 32

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	SCO [2015] NSWCATGD 32
Hearing dates:	4 June 2015
Date of orders:	04 June 2015
Decision date:	04 June 2015
Jurisdiction:	Guardianship Division
Before:	L Organ, Senior Member (Legal) S Taylor, Senior Member (Professional) R Manga, General Member (Community)
Decision:	Guardianship order made for a period of 12 months;  Public Guardian appointed with accommodation, health care, medical and dental treatment, advocacy and legal services.
Catchwords:	GUARDIANSHIP – where person in immigration detention – risk of being deported from Australia – risk to the person’s health due to lack of support available in third country – poor or partial insight into his mental illness – need for advocacy and legal services functions – guardianship order made.
Legislation Cited:	Migration Act 1958 (Cth) Guardianship Act 1987 (NSW) Mental Health Act 2007 (NSW)
Cases Cited:	IF v IG [2004] NSWADTAP 3
Category:	Principal judgment
Parties:	Mr SCO (the subject person) Ms BMT (the applicant) The Public Guardian
Representation:	Nil
File Number(s):	60557
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 appointed the Public Guardian as Mr SCO’s guardian for a period of twelve months to make decisions about his accommodation, health care and medical and dental treatment, legal services which he should receive and to advocate on his behalf as set out in the Tribunal’s order.

Background

2. Mr SCO is 33-year old man of Zulu heritage who is a citizen of a country in southern Africa. He has lived in Australia since 1993 apart from a period between approximately 1996 and 2001. He has been held in detention since December 2013 and is currently detained at a detention centre. Mr SCO is married to Ms DVN and has two children. Prior to being held in detention Mr SCO was living with Ms DVN and his children. Mr SCO is also reported to have three younger siblings who are Australian citizens. His mother, who had permanent residency status in Australia, passed away in 2013.

3. Mr SCO is reported to have schizophrenia and HIV infection.

4. On 11 September 2015 the Tribunal received an urgent application for a guardianship order for Mr SCO from Ms BMT, a Solicitor at the HIV /AIDS Legal Centre (HALC). In her application Ms BMT states that Mr SCO requires a guardian as due to his mental illness he is unable to make decisions and is at risk of being deported from Australia because he recently signed documentation permitting the Department of Immigration and Border Protection to effect his removal from Australia.

The hearing

5. 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]

6. At the commencement of the hearing the Tribunal was informed by Ms BMT that she was appearing at the hearing in her capacity as the applicant only and was not seeking leave to represent Mr SCO.

7. The Tribunal contacted the office of the Public Guardian at the commencement of the hearing to provide the Public Guardian, as a statutory party, with an opportunity to participate in the proceedings. The Tribunal was informed by a representative of that office that the Public Guardian did not wish to participate in the proceedings.

8. Mr SCO attended the hearing accompanied by three security officers from the detention centre. The Tribunal notes that these officers remained outside the hearing room for the duration of the hearing and they did not participate in the hearing.

What did the Tribunal have to decide?

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

• Is Mr SCO 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 SCO 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?

10. Section 14 of the Guardianship Act 1987 (NSW) (‘the Guardianship 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), 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), Guardianship Act).

11. The Tribunal was provided with a report of Dr Z, Senior Staff Specialist, Sexual Health Medicine at a public hospital, dated 12 June 2015. This report was prepared for the Migration Review Tribunal. Dr Z has been Mr SCO’s treating doctor since October 2009 and notes Mr SCO has been a client of a Sexual Health Centre since 2002. Dr Z says that Mr SCO has a dual diagnosis of HIV infection, diagnosed in 2002 and schizophrenia, diagnosed in 2006. She reports that Mr SCO’s schizophrenia is controlled by regular depot injections and twice daily medications. Dr Z refers to neuropsychological assessment of Mr SCO in September 2014 which showed significant cognitive impairment across multiple domains including most aspects of executive functioning, fine-motor coordination, sustained and selective attention. These cognitive impairments continue despite his schizophrenia being well controlled according to Dr Z.

12. Dr Z states that Mr SCO’s neurocognitive impairment as a result of his schizophrenia impacts on his ability to manage his HIV treatment without extensive support. Since he has been in detention Dr Z says that his immune function has significantly improved on HIV treatment however he remains at risk of rapid deterioration of his immune function if he were to stop taking his HIV treatment. Dr Z describes how Mr SCO requires ongoing support from mental health services to access services and adhere to his psychiatric treatment and she believes that if he were to return to southern Africa support and coordination of his care would not be available there. She said that without ongoing psychiatric treatment he would soon develop delusions and thought disorder which would be incompatible with being able to manage his HIV infection or function appropriately in the community.

13. The Tribunal was also provided with reports from a number of Psychiatrists, namely Dr Y, Dr X, Dr W, and Dr V. These reports were prepared in 2012 and 2013 and were obtained in relation to criminal proceedings against Mr SCO heard in 2013 and 2014. Each of these Psychiatrists diagnosed Mr SCO with schizophrenia and substance use disorder. Their reports describe Mr SCO as having poor or only partial insight into his mental illness and likely to experience symptoms of his mental illness in a residual form which may affect his judgment.

14. A report of Ms U, a Social Worker at the Sexual Health Centre dated 11 September was also considered by the Tribunal. Ms U states that she has known Mr SCO since 2012. She said that Mr SCO has been unable to engage with her service well and says he has unstable mental health due to his schizophrenia as well as significant cognitive impairment. Ms U reports that Mr SCO has appeared to stabilise during his stay in detention due to being on regular medication. However she describes how she received a telephone call from Mr SCO on 7 September 2015 in which he sounded thought disordered and at times incoherent. She said she is concerned he has experienced a physical or mental setback which is impairing his judgment. Ms U says she does not believe Mr SCO has the cognitive capacity to think through his decision to return to southern Africa properly.

15. The Tribunal accepted the medical evidence before it that Mr SCO has a mental illness and a serious medical condition which require him to receive care, supervision and assistance without which he would not be able to manage his person.

16. The Tribunal is satisfied that Mr SCO has a disability which prevents him at least partially from making important life decisions. 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?

17. 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 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.

18. 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 Guardianship Act (see IF v IG [2004] NSWADTAP 3).

19. Mr SCO told the Tribunal that he believes he needs help making decisions as he “needs someone to guide me.” He said he made the wrong decision the day before the hearing when he told his Solicitor Ms BMT he no longer wanted to proceed with legal action in relation to his immigration status and no longer wanted Ms BMT to act for him. He said he had also made a mistake when he said that he wanted to return to southern Africa and signed a document for the Department of Immigration and Border Protection (the Department) to this effect. He said at the time he signed the document he had not thought about the impact of him returning to southern Africa on his children who live in Australia. When asked by the Tribunal why he thought he changed his mind about wanting to return to southern Africa he said he had forgotten why he had made the decision to return in the first place. He spoke of his brother who lives in Australia, and said his sister is coming to Australia in December from southern Africa. He said he wants to remain in Australia be with them and his children.

20. The Tribunal was provided with a Statutory Declaration of Mr SCO dated 17 June 2015 in support of his application for a protection visa. Mr SCO sets out his family history and his fears of living with HIV and schizophrenia in southern Africa including particular fears relating to Zulu cultural attitudes to people with mental illness and HIV. Mr SCO describes how he has lived in Australia for most of his life and has no real family in southern Africa. He says his wife Ms DVN, from whom he is separated and his two sons all live in Australia.

21. Ms DVN told the Tribunal that in her experience of Mr SCO he frequently changes his mind about major decisions and has a lot of trouble making up his mind about what he wants. She said she supported the application for a guardian to be appointed for Mr SCO.

22. According to Ms BMT, the principal reason for her application to the Tribunal is because she considers there is an urgent need for a decision to be made about whether Mr SCO should remain in Australia. Ms BMT said that on 10 September 2015 following notification of the refusal of his application for a protection visa by the Department, Mr SCO signed an authority to permit the Department to effect his removal from Australia. Ms BMT says that Mr SCO is at imminent risk of removal from Australia as s 198 (1) of the Migration Act 1958 (Cth) obliges officers of the Department to remove a person who has asked to be removed as soon as reasonably practicable. Ms BMT stated that Mr SCO lacks capacity to make an informed decision as to whether to stay in Australia or to return to live in southern Africa and give informed consent concerning his removal from Australia.

23. Ms BMT said that there is also a need for a guardian to make decisions concerning the legal proceedings in which Mr SCO is involved in the Federal Court in relation to a bridging visa application by Mr SCO. Ms BMT said that she is awaiting notification of a hearing date for these proceedings and has sought an expedited hearing. In relation to the refusal by the Department of Mr SCO’s application for a protection visa she said that Mr SCO has until 30 September 2015 to file a merits appeal against the Department’s decision. Decisions around these legal proceedings need to be made as a matter of some urgency. Ms BMT told the Tribunal that in her opinion Mr SCO has good prospects of successfully obtaining a visa to remain in Australia and that it would be a breach of Australia’s non-refoulement obligations to return him to southern Africa. If he does receive a visa, Ms BMT said there will be a need for decisions to be made about his accommodation in the community.

24. Ms BMT outlined that she had known Mr SCO since 2012 and said that in that time she is aware that at times he was subject to a Community Treatment Order (CTO) under the Mental Health Act. She said that Mr SCO lacks insight into his mental illness and does not have capacity to make informed decisions about his health care and medical treatments. Mr SCO told the Tribunal his current medication regime includes the major medications Clopixol and Clozapine. Ms BMT referred the Tribunal to the report of Dr Z to emphasise the importance of Mr SCO receiving comprehensive and coordinated health care. She said that in particular the adequacy of the health care, treatment and support he is receiving in detention is something which a guardian would be able to review and make decisions about.

25. An advocacy function was also identified by Ms BMT as a necessary function for a guardian to have. Ms BMT said she was aware of individuals with similar health issues to Mr SCO who had been moved by the Department to places other than detention centres however she felt that this would require someone to advocate both with the Department and other government agencies for such an option to be pursued on behalf of Mr SCO.

26. There was no evidence before the Tribunal which indicated that appointing a guardian would have an adverse impact on Mr SCO’s family relations. There was also no evidence of less formal methods of decision making being available for Mr SCO without the need for the making of a guardianship order.

27. The Tribunal accepted the uncontradicted evidence of Ms BMT and Ms DVN and the medical evidence provided to the Tribunal.

28. The Tribunal decided on the basis of all of this evidence that a guardianship order should be made.

What decision making functions should be included in the order?

• Accommodation

29. The Tribunal was satisfied that Mr SCO is unable to make decisions for himself about where he should live including a decision as to whether or not to remain in Australia. Accordingly, the Tribunal gave the guardian the authority to make accommodation decisions.

• Legal Services

30. Closely linked to the need for decisions to be made about Mr SCO’s accommodation is the need to resolve his immigration status. The evidence before the Tribunal is that Mr SCO is involved in current legal proceedings in relation to his immigration status and a decision needs to be made regarding an appeal against a decision by the Department regarding the refusal of his application for a protection visa. The guardian will therefore require a legal services function.

• Health care and medical and dental consents

31. The Tribunal accepted the evidence presented at the hearing showed that because of Mr SCO’s lack of decision-making ability, there is a clear need for him to have a substitute decision-maker with the functions of health care, and medical and dental consents. These functions will enable the guardian to ensure that Mr SCO receives all appropriate care and treatment to support his complex health needs.

• Advocacy

32. The Tribunal considered it was appropriate for the guardian to have the function of advocacy. This function will give the guardian authority to advocate on Mr SCO’s behalf with the Department and other government agencies regarding his immigration status and the conditions of his detention.

Who should be the guardian?

33. Ms BMT proposed the appointment of the Public Guardian as Mr SCO’s guardian. There was no proposal before the Tribunal that a friend or family member be appointed. As there is no private person available to be appointed as guardian, the Tribunal appointed the Public Guardian.

How long should the order last?

34. An initial guardianship order can be made for a period of up to one year from the date on which it was made.

35. The Tribunal decided to make an order for twelve months. At the end of this period it is appropriate that a review be conducted to determine whether a guardian continues to be required for Mr SCO, and if so, whether there needs to be any amendment to the functions of guardianship.

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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: 02 December 2015