SKF

[2022] NSWCATGD 14

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

SKF [2022] NSWCATGD 14

Hearing dates:

22 July 2022

Date of orders:

22 July 2022

Decision date:

22 July 2022

Jurisdiction:

Guardianship Division

Before:

B L Adamovich, Senior Member (Legal)
Dr M J Wroth, Senior Member (Professional)
L Porter, General Member (Community)

Decision:

1. A guardianship order is made for SKF.

2. NZF of [Address removed for publication.] is appointed as the guardian.

3. This is a continuing guardianship order for a period of 12 months from 22 July 2022.

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

FUNCTIONS:

5. The guardian has the following functions:

a) Health care

To decide what health care SKF may receive.

b) Medical/Dental consent

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

c) Services

To make decisions about services to be provided to SKF.

d) Restrictive Practices

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

1. Chemical restraint

CONDITIONS:

6. The conditions of this order are:

a) Standard Condition

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

b) Other Condition

Other Conditions:

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

(i) As a last resort to prevent the person harming themselves or others;

(ii) Where the restrictive practice is used in the least restrictive form, and for the shortest time necessary to prevent harm to the person or other persons;

(iii) In accordance with a behaviour support plan devised in accordance with the Quality of Care Principles 2014 (Cth), after consultation with a health practitioner with expertise relevant to the person’s behaviours of concern and which is reviewed regularly and as soon as practicable after any change in the person’s circumstances.

Catchwords:

GUARDIANSHIP – application for a guardianship order – subject person diagnosed with Fragile X syndrome and intellectual disability – cognitive impairment – subject person resides at an aged care facility – subject person an NDIS participant – restrictive practices function – use of chemical restraint – olanzapine and sodium valproate to manage behaviours – need for a guardianship order with a restrictive practices function – suitability of proposed guardian – private guardian appointed – order made.

Legislation Cited:

Guardianship Act 1987 (NSW), ss 3(1)-(2), 4, 14, 14(2), 15(3), 17(1), 35, 37(1), 40; Pt 5

Cases Cited:

C S and M Y v the Guardianship Tribunal and the Public Guardian (Supreme Court (NSW), Windeyer J, 29 November 1999, unrep)

IF v IG [2004] NSWADTAP 3

P v D1 [2011] NSWSC 257

P v NSW Trustee and Guardian [2015] NSWSC 579

Re B [2011] NSWSC 1075

Texts Cited:

None cited.

Category:

Principal judgment

Parties:

003: Guardianship Application

SKF (the person)
NZF (applicant)
Public Guardian

Representation:

Nil.

File Number(s):

NCAT 2015/00384640

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

GUARDIANSHIP APPLICATION

1. These are the reasons for the decision of the Tribunal as set out above.

2. In all matters before the Tribunal the welfare and interests of the subject person are paramount.

Background

3. SKF is a 69-year-old man who is a permanent resident at an aged care facility at regional NSW. It is reported that SKF has a diagnosis of Fragile X Syndrome.

4. SKF has a brother, NZF, who re-entered his life after SKF was placed at the aged care facility. NZF lives at another suburb in regional NSW. SKF’s sister, Ms Z, lives at another suburb in regional NSW. NZF told us that SKF had spent many years living with their father with support from a disability service provider, however, as a result of a number of moves, SKF’s whereabouts had been unknown to his siblings for some time.

5. On 1 December 2015, the Tribunal committed SKF’s affairs to the management of the NSW Trustee and Guardian. On the same date an application for guardianship was dismissed. At the time of the hearing, SKF was an inpatient at a public hospital, and it was noted in the Reasons for Decision that the contact details of his brother and sister were unknown. It was established that an ACAT assessment had already been conducted and placement arranged at the aged care facility.

6. On 9 December 2021 the Tribunal received a guardianship application with respect to SKF from NZF.

7. These Reasons for Decision should be read in conjunction with the reasons for the decision of the Tribunal of 1 December 2015.

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. As the hearing was held during the COVID-19 pandemic, it was conducted by videoconference and telephone.

What did the Tribunal have to decide?

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

• Is SKF 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 SKF 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?

11. Section 14 of the Guardianship Act1987 (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).

12. The term “social habilitation” is not defined in the Guardianship Act. In P v NSW Trustee and Guardian [2015] NSWSC 579, Lindsay J considered its meaning in the context of s 3(2) of the Guardianship Act, at [303]:

“The expression ‘social habilitation’ (in the context of references to ‘disability’, ‘restricted’, ‘major life activities’ and the word ‘requires’) may be taken to refer to a need for services to help a person to be, or become, able to function normally in the community with others.”

13. In 2015, the Tribunal accepted evidence that SKF has Fragile X Syndrome with an associated intellectual disability, poor vision, hypertension, hyperlipidaemia and obesity. The Tribunal found that SKF also had at least moderately severe cognitive impairment as a result of which he was unable to make important life decisions.

14. We received a report dated 17 November 2021 from Dr Y, SKF’s GP at the aged care facility, that stated that SKF had been assessed “to not be of sound mind to make decisions for himself”.

15. We were satisfied that SKF continues to have a disability that prevents him 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 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, 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.

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 must be guided by the principles that are set out in s 4 of the Guardianship Act (see IF v IG [2004] NSWADTAP 3).

18. SKF participated in the hearing and told us that he is very happy at the aged care facility and with the care he receives. He likes the food and enjoys going on bus trips. He thought it would be good for his brother to be appointed as his guardian. It was evident that he has a very close bond with his brother.

19. NZF told us that SKF was brought up by their now deceased father for a great deal of his life. Since their father passed away, NZF believes that his brother was passed from one care agency to another. Service providers caring for SKF had no knowledge of SKF’s brother and sister as their father did not provide this information. NZF said that it took him a long time to find his brother and he would not like for either of them to go through this situation again. NZF said that a guardianship order is needed as SKF does not have the capacity to make decisions about his health care or wellbeing.

20. NZF is happy with the aged care facility and the care that his brother receives from the nursing staff. He told us that SKF is a National Disability Insurance Scheme (NDIS) participant, however, he is not considered suitable for supported independent living due to his age and the fact that he has been living in the aged care facility for the past seven years. NZF said that there is no plan to change SKF’s accommodation, particularly now he has moved to the general ward after 12 months in the secure dementia-specific ward.

21. Ms X, service coordinator at the aged care facility, told us that SKF is appropriately placed. Although he is an NDIS participant, he is 69 years old and has lived in the aged care facility for the past seven years. She said that SKF is now settled and comfortable at the aged care facility and she would not recommend that he be moved from where he is happy. Ms X agreed that SKF has been much more behaviourally settled since he moved from the secure dementia-specific unit to a general ward.

22. NZF told us that he was concerned that he has had no communication with his brother’s doctor, despite being the person responsible. He is provided with consent forms but not given the opportunity to discuss treatment with SKF’s GP. He said that the aged care facility does not contact him to discuss behavioural incidents, even though he knows his brother well and could give them strategies to assist.

23. We were provided with a copy of SKF’s medication chart dated 20 April 2022 that was signed off by Dr Y. The diagnoses outlined on the medication chart were: Fragile X Syndrome, obesity, hypertension, gouty arthritis, abnormality in gait and mobility, falls, intellectual and developmental disorders.

24. On the medication chart we observed that Dr Y has prescribed SKF routine Olanzapine for the purpose of treating schizophrenia, despite schizophrenia not being a diagnosed condition pertaining to SKF on the medication chart. NZF was adamant that his brother had not previously been diagnosed with schizophrenia.

25. Dr Y has also prescribed SKF with routine sodium valproate for “agitation”.

26. NZF told us that he has not had any discussions with Dr Y with respect to the purpose, risks and benefits of Olanzapine and sodium valproate.

27. We were also provided with a discharge summary dated 30 January 2020 from a registered nurse, Ms W, from a community health service, in relation to a mental health assessment referral for SKF. The summary outlines that SKF was displaying obsessive compulsive behaviours (and had been for much of his life) and was becoming increasingly impulsive and aggressive. A psychiatrist from the community health service commenced SKF on Citalopram to address obsessional behaviours.

28. The discharge summary notes that SKF was commenced on Olanzapine in October 2019 and remains on that medication. Sodium valproate had been commenced in 2017. Lorazepam was prescribed on a PRN basis. The content of the discharge summaries indicated that the primary purpose for the medication review by the mental health team was due to an increase in episodes of verbal abuse towards staff and other residents. The discharge summary refers to feedback from SKF’s family with respect to: “this behaviour has been (sic) all of [SKF]’s life with impulsivity, loud talking, frustration when needs not met immediately and stand over tactics towards those less ambulant or frail”. The diagnosis from the community mental health team was obsessive compulsive disorder.

29. It is uncontroversial that SKF is unable to provide consent to major or minor medical and dental treatment. Part 5 of the Guardianship Act makes it clear that a person who is unable to provide their own consent to major treatment can only receive major treatment with the consent of a guardian, a person responsible or directly from the Tribunal. The only exception, contained in s 37(1) of the Guardianship Act is if the treatment is necessary, as a matter of urgency, to save the patient’s life, to prevent serious damage to the patient’s health, or except in the case of special treatment – to prevent the patient from suffering or continuing to suffer significant pain or distress.

30. Clearly the prescription of major medications over an extended period of time cannot be construed as necessary, as a matter of urgency to save SKF’s life, to prevent serious damage to his health, or to prevent him from suffering significant pain and distress.

31. Section 40 of the Guardianship Act sets out the specifications to be contained in a request for consent to treatment from a guardian or a person responsible. NZF made it clear that he has not been provided with information with respect to the purpose of treatment, the particular condition of the patient that requires treatment, the alternative courses of treatment, the general nature and degree of significant risks (if any) associated with each of those courses of treatment, and the reasons for which it is proposed that any particular course of treatment should be carried out.

32. We note that s 35 of the Guardianship Act provides penalties for failing to comply with the requirements to obtain consent to medical and dental treatment.

33. We were satisfied that there is a need for a guardian to be appointed with the function of medical and dental consent. Clearly, the person responsible, NZF has not been given the opportunity to provide informed consent to treatment.

34. We were also satisfied that a health care function should be attached to a guardianship order. We were told that SKF has not been reviewed recently by a specialist. We are concerned about the diagnosis of schizophrenia being on his medication chart. We also noted the paucity of detail provided in the report dated 17 November 2021 from SKF’s treating GP and the lack of communication between the GP and SKF’s person responsible, NZF. We considered that a health care function would enable the guardian to make decisions about which health care specialists should be engaged to support SKF. Similarly, this function would enable the guardian to engage a new GP if that was appropriate. Ms X said that there are other GPs who attend the facility, and she would be able to support SKF’s guardian to engage a new GP.

35. We were also satisfied that a guardian should be appointed with the function of restrictive practices with respect to chemical restraint. SKF’s medication chart makes it clear that he is prescribed sodium valproate for the purpose of managing agitation rather than to treat a diagnosed medical condition. The primary purpose for which it is prescribed is to influence behaviour and therefore it constitutes chemical restraint. He is prescribed Olanzapine to treat schizophrenia without any available evidence to support the diagnoses. The discharge summaries referred to above refer to the need to manage behaviours rather than treating diagnosed conditions.

36. Chemical restraint is defined as a practice or intervention that is, or that involves, the use of medication or a chemical substance for the primary purpose of influencing a care recipient’s behaviour but does not include the use of medication prescribed for the treatment of (or to enable treatment of) the care recipient for a diagnosed mental disorder, a physical illness or condition, or end of life care.

37. In SKF’s circumstances, there is a clear need for a guardian to be appointed by the Tribunal with the authority to provide or withhold consent to the restrictive practice of chemical restraint, particularly given the lack of communication by SKF’s GP with his person responsible.

38. We were told by Ms X that there is a behaviour support plan in place. We were not provided with a copy of this plan. NZF told us that he has not seen a behaviour support plan for his brother and has had no input into such a plan. SKF is an NDIS participant, and we considered that a services function should be attached to an order so that a guardian could make decisions about the services that SKF receives, particularly in relation to behaviour support.

39. We considered that SKF cannot practicably receive services without this function being attached to an order in his current circumstances. We were satisfied that the appointment of a guardian would not impair the preservation of SKF’s family relationships or his cultural and linguistic environment.

40. We decided to make a guardianship order with the functions of medical and dental treatment, health care, services, and restrictive practices with respect to chemical restraint. The guardian may only consent to restrictive practices in accordance with the restrictive practice condition attached to this order.

Who should be appointed as the guardian?

41. NZF proposed that he be appointed as his brother’s guardian. The Tribunal has to be satisfied that any person appointed as a private guardian meets the following requirements in accordance with s 17(1) of the Guardianship Act. He or she must:

1. have a personality generally compatible with the personality of the person under guardianship,

2. have no undue conflict of interest (particularly financial) with those of the person, and

3. be able and willing to exercise the functions of the order.

42. In deciding whether a person is able to undertake the role of guardian, the Tribunal must consider whether the proposed guardian is able, having regard to the circumstances, to exercise the functions in accordance with the principles set out in s 4 of the Guardianship Act (C S and M Y v the Guardianship Tribunal and the Public Guardian (Supreme Court (NSW), Windeyer J, 29 November 1999, unrep), and Re B [2011] NSWSC 1075, [66]).

43. In P v D1 & Ors [2011] NSWSC 257, the Supreme Court noted the importance of a proposed guardian being able to demonstrate insight and explain plans for how to act as guardian objectively and without conflict of interest.

44. The Tribunal is not able to appoint the Public Guardian as a person’s guardian if there is a private person who can be appointed: Guardianship Act, s 15(3).

45. The Supreme Court has held that:

“the proper meaning to be given to the section is to read it as saying that the Public Guardian should not be appointed in circumstances in which an order can properly be made in favour of another person. That requires not only that the person be willing, reliable and responsible, but that the appointment will result in the policy considerations and principles set forth in the Act being given effect (W v G [2003] NSWSC 1170, [25]).”

46. NZF has demonstrated that he is actively involved in his brother’s life now that he has found him again and is willing and able to be his guardian. We were satisfied that he has a personality compatible with that of his brother and is able to make decisions objectively and in his best interests. We were satisfied that the appointment of NZF as the private guardian would be consistent with the policy considerations and principles set forth in the Guardianship Act. SKF was strongly in favour of his brother being appointed as his guardian.

47. On the basis of this evidence, the Tribunal was satisfied that NZF meets the requirements to be appointed as the private guardian for SKF.

How long should the order last?

48. Initial guardianship orders may be made for a period of up to 12 months. We were satisfied that an order of 12 months should be made.

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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: 26 September 2022