SKG - [2023] NSWCATGD 18

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: SKG [2023] NSWCATGD 18
Hearing dates: 30 May 2023
Date of orders: 30 May 2023
Decision date: 30 May 2023
Jurisdiction: Guardianship Division
Before: C P Fougere, Principal Member
Professor M McDaniel, General Member
Decision:
The guardianship order for SKG made on 13 May 2021 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 three (3) years from 30 May 2023.
3.   This is a limited guardianship order giving the guardian(s) custody of SKG to the extent necessary to carry out the functions below.
FUNCTIONS:
4.   The guardian has the following functions:
a)   Accommodation
To decide where SKG may reside.
b)   Health care
To decide what health care SKG may receive.
c)   Medical/Dental consent
To make substitute decisions about proposed minor or major medical or dental treatment, where SKG is not capable of giving a valid consent.
d) Services
To make decisions about services to be provided to SKG.
CONDITION:
5.   The condition of this order is:
a)   Standard Condition
In exercising this role, the guardian shall take all reasonable steps to bring SKG to an understanding of the issues and to obtain and consider their views before making significant decisions.

Catchwords:
GUARDIANSHIP – end-of-term review of a guardianship order – whether a further guardianship order should be made – 45-year-old Aboriginal man – subject person with brain injury and mild intellectual disability – subject person a participant in the National Disability Insurance Scheme (NDIS) – need for decisions to be made in relation to accommodation, health care, medical and dental consent, and services – preservation of the subject person’s cultural environment weighs in favour of the making of a guardianship order – Public Guardian appointed – order made

Legislation Cited:
Guardianship Act 1987 (NSW), ss 3(1)-(2), 4, 4(b)-(c), 4(e),14, 14(2)

Cases Cited:
IF v IG [2004] NSWADTAP 3

Texts Cited:
None cited.

Category: Principal judgment
Parties:
013: Review of Guardianship Order
SKG (the person)
Public Guardian (appointed guardian)
Representation: Nil.

File Number(s): NCAT 2015/00384645
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

Introduction

SKG is a 45-year-old Aboriginal man who lives in regional NSW. He lives in supported independent living (SIL) run by a disability services provider and a team of support services provided by a community service provider. SKG moved to his current home in late-2022 following a period of incarceration. Prior to that, SKG lived in a property with the disability service provider providing drop-in support.
The most recent guardianship order for SKG was made on 13 May 2021 for two years. On that occasion the Public Guardian was appointed as SKG’s guardian with decision-making authority about his accommodation, health care, medical…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading SKG

Details

AGLC: SKG [2023] NSWCATGD 18
Case: [2023] NSWCATGD 18
Decision Date: 30 May 2023

CaseChat Overview and Summary

The case involved SKG, a 45-year-old Aboriginal man with a brain injury and mild intellectual disability, and the Public Guardian as his appointed guardian. The dispute centred around the end-of-term review of the guardianship order, which was initially made on 13 May 2021. SKG, who is also a participant in the National Disability Insurance Scheme (NDIS), required decisions to be made in relation to his accommodation, health care, medical and dental consent, and services. The primary legal issue was whether a further guardianship order should be made to ensure these decisions could be made on his behalf. The court had to balance the need for such decisions with the preservation of SKG's cultural environment.

In considering the legal issues, the court examined the evidence presented about SKG's condition and needs. It acknowledged the importance of maintaining SKG's cultural environment and the potential benefits of the guardianship order in facilitating this. The court found that the continuation of the guardianship order was necessary to ensure that SKG received appropriate care and support, particularly given his disability and the complexity of the decisions that needed to be made. The Public Guardian was appointed to continue in their role as guardian for a period of three years from 30 May 2023. The order specified that the guardian would have limited guardianship functions, including the right to make decisions about SKG's accommodation, health care, medical and dental consent, and services. A condition was also imposed requiring the guardian to take all reasonable steps to involve SKG in decision-making processes.

The court concluded that the continuation of the guardianship order was in SKG's best interests, given his disability and the need for ongoing support. The order appointed the Public Guardian as the guardian for a period of three years, with specific functions outlined in the order. The condition imposed on the guardian ensured that SKG's views were considered in decision-making processes. This decision underscores the importance of balancing the need for guardianship with the preservation of the subject person's cultural environment.

Orders

Orders of the court

The guardianship order for SKG made on 13 May 2021 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 three (3) years from 30 May 2023.

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

FUNCTIONS:

4. The guardian has the following functions:

a) Accommodation

To decide where SKG may reside.

b) Health care

To decide what health care SKG may receive.

c) Medical/Dental consent

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

d) Services

To make decisions about services to be provided to SKG.

CONDITION:

5. The condition of this order is:

a) Standard Condition

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	SKG [2023] NSWCATGD 18
Hearing dates:	30 May 2023
Date of orders:	30 May 2023
Decision date:	30 May 2023
Jurisdiction:	Guardianship Division
Before:	C P Fougere, Principal Member Professor M McDaniel, General Member
Decision:	The guardianship order for SKG made on 13 May 2021 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 three (3) years from 30 May 2023. 3. This is a limited guardianship order giving the guardian(s) custody of SKG to the extent necessary to carry out the functions below. FUNCTIONS: 4. The guardian has the following functions: a) Accommodation To decide where SKG may reside. b) Health care To decide what health care SKG may receive. c) Medical/Dental consent To make substitute decisions about proposed minor or major medical or dental treatment, where SKG is not capable of giving a valid consent. d) Services To make decisions about services to be provided to SKG. CONDITION: 5. The condition of this order is: a) Standard Condition In exercising this role, the guardian shall take all reasonable steps to bring SKG to an understanding of the issues and to obtain and consider their views before making significant decisions.
Catchwords:	GUARDIANSHIP – end-of-term review of a guardianship order – whether a further guardianship order should be made – 45-year-old Aboriginal man – subject person with brain injury and mild intellectual disability – subject person a participant in the National Disability Insurance Scheme (NDIS) – need for decisions to be made in relation to accommodation, health care, medical and dental consent, and services – preservation of the subject person’s cultural environment weighs in favour of the making of a guardianship order – Public Guardian appointed – order made
Legislation Cited:	Guardianship Act 1987 (NSW), ss 3(1)-(2), 4, 4(b)-(c), 4(e),14, 14(2)
Cases Cited:	IF v IG [2004] NSWADTAP 3
Texts Cited:	None cited.
Category:	Principal judgment
Parties:	013: Review of Guardianship Order SKG (the person) Public Guardian (appointed guardian)
Representation:	Nil.
File Number(s):	NCAT 2015/00384645
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.