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

1. 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.

2. 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 and dental treatment and service provision.

3. The purpose of this hearing was to conduct a review of the guardianship order made in 2021. For the reasons set out below and consistent with the submissions made by the Public Guardian, we reappointed the Public Guardian as SKG’s guardian for three years with the same decision-making authority as contained in the current order.

4. As is set out in further detail below, SKG has complex health care needs and remains in need of proactive advocacy in relation to his National Disability Insurance Scheme (NDIS) funding. It appears that the National Disability Insurance Agency (NDIA) has indicated that it will no longer provide the level of SIL funding that those involved in providing support to SKG believe that he needs in order to live successfully in the community. We were told that an application to the NDIA is in the process of being made to request that the agency conduct a review of SKG’s NDIS plan with the aim of increasing funding to allow his current care and accommodation needs to be met. In these circumstances and for the reasons set out below, we decided that another guardianship order should be made as outlined.

SKG’s participation

5. We spoke with SKG by videoconference for a relatively short period of time close to the start of the hearing. He was in the company of his support worker, Ms Z. In his interaction with us, SKG was particularly focused on the issue of his finances as the NSW Trustee and Guardian manages his financial affairs. He returned to this issue on more than one occasion despite our explanations that we were not empowered to make any decisions about the management of his financial affairs.

6. SKG did not express a view one way or another about the review of the guardianship order that we were undertaking. Other participants expressed the opinion that SKG may not be completely aware of the impact that the guardianship order has on his day-to-day life and that he is mainly focussed on his finances.

7. SKG left a short time after the hearing commenced.

Is SKG 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?

8. 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 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: the 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: the Act, s 3(2).

9. When the previous order was made, the Tribunal found that SKG had a number of disabilities including a brain injury, mild intellectual disability and schizophrenia and, as a result, was unable to make important life decisions.

10. We were informed by the participants at this hearing that during a hospital admission pursuant to a schedule under the Mental Health Act during the term of the order, SKG’s consultant psychiatrist formed the view that SKG does not in fact have schizophrenia and that diagnosis will no longer be included in future medical records. There was, however, no dispute that as a result of SKG’s other health issues and history of childhood trauma, his ability to function in the community is impaired and he requires significant levels of support.

11. We were satisfied on this basis that SKG continues to be restricted in one or more major life activities to such an extent that he requires supervision or support to live in the community. He remains a person who is at least partially incapable of managing his own person and is therefore someone for whom we could make another guardianship order.

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

12. The Tribunal must consider all of the following matters set out in s 14(2) of the 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.

13. 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 Act. 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).

SKG’s views

14. As previously noted, SKG did not express a view one way or the other about the matters before us for consideration in this hearing. In response to a question asked by the Tribunal, his NDIS support coordinator, Ms Y, expressed the view that SKG has indicated through comments that he has made that he has a sense of his own circumstances improving during the period of appointment of a guardian, but it is unclear whether he makes a direct link to the guardianship order and his day-to-day life.

15. Given the difficulty we had in discerning SKG’s views about the review of the guardianship order, we decided that this factor neither favours nor weighs against the making of another guardianship order.

The importance of preserving SKG’s existing family relationships

16. SKG’s contact with his family is limited. We were told that SKG’s father also lives in regional NSW and that SKG visits him on occasion but it is not otherwise a close relationship. There are no other family or friends that we were made aware of.

17. We formed the view that this factor neither favours nor weighs against the making of a guardianship order.

The importance of preserving SKG’s particular cultural and linguistic environment

18. In relation to the potential impact of an order on SKG’s cultural and linguistic environment, we were informed by those participating in the hearing that staying in regional NSW and on country is important to SKG. Without the appointment of a guardian who can advocate on his behalf, particularly in relation to the appropriate level of NDIS funding that allows him to remain in supported independent living in the Tamworth area, it is likely that SKG would have to leave the area as there are limited options available to him due to his history of difficult behaviour and offending.

19. We were also told that the stability created by the guardianship order, including in relation to accommodation and service provision, has enabled SKG to access art classes which, we were told, have been a significant source of pleasure and creativity, and is culturally important to him. Even in the very short time that SKG participated in the hearing, he mentioned his art on more than one occasion. Later in the hearing, we were also shown, by way of the videoconference facility, examples of his artwork that decorate the walls of the living area in which SKG and others live.

20. We formed the view that the preservation of SKG’s cultural environment weighed in favour of the making of another guardianship order.

The practicability of services being provided to SKG without the need for the making of such an order

21. The evidence indicated that significant levels of advocacy will continue to be required on SKG’s behalf in order to secure appropriate funding through the NDIS to provide him with the day-to-day support that he requires. In written and oral evidence provided on behalf of the Public Guardian, a representative noted the following:

• Without 24/7 support, SKG is considered to be at significant risk of misadventure, overdose, deterioration in his mental health, self-neglect and recidivism

• Over a year of intensive planning, collaboration and advocacy with the NDIS was undertaken to obtain appropriate funding for SKG to move to his current placement

• This model allows SKG to receive intensive support from experienced staff for his complex support needs

• There remains, however, a significant shortfall in SKG’s NDIS funding despite extensive reports and recommendations provided by clinicians and allied health specialists

• In February 2023, the NDIS advised that they were not accepting a request to review SKG’s NDIS plan and further evidence would be required before his next planned reassessment in October 2023. A referral was made to the community safety program and consideration for community safety funding assistance is currently being explored.

22. On the available evidence, SKG would be unable to advocate on his own behalf in relation to these matters and coordinate the range of services that he requires. This factor favours the exercise of the power to make a guardianship order.

Other matters

23. Since earlier this year, SKG has been subject to a community corrections order following a conviction for indecent exposure. We were told, without being provided with any corroborating documentation, that the community corrections order is for five years, and he is currently on a 12-month good behaviour bond.

24. In addition, only a number of weeks ago, SKG had a physical altercation with another resident. He has been charged with an offence and has a court date later this month. SKG is represented by the Aboriginal Legal Service, and we were told he is giving his instructions directly to his lawyer. No-one sought decision making functions in relation to these legal matters.

25. The representative of the Public Guardian submitted that the inclusion of a health care function will enable the Public Guardian to continue to liaise with healthcare practitioners and obtain recommendations and reports to support the need for SIL funding. She noted that there is no private person available to be considered as SKG’s person responsible in relation to medical and dental treatment and the Public Guardian recommended the continuation of the health care and medical and dental treatment functions.

Tribunal’s consideration

26. The evidence in our view clearly indicates that SKG has ongoing and complex support needs. We formed the view that without the making of another guardianship order, he would be unable to advocate on his own behalf, particularly in relation to seeking funding from the NDIS. We accepted that SKG could not receive the level of support and advocacy that he requires without an appointed guardian making decisions on his behalf as well as providing a coordination role to the other service providers that are involved in his life. He also continues to have complex mental health needs and advocacy with mental health services will continue to be required.

27. We decided that we should exercise our discretion to make another guardianship order for SKG with the areas of decision making on the same terms as in the previous order. On the available evidence, these have served SKG well and, in our view, continue to be necessary for SKG to live as normal a life in the community as possible (s 4(c) of the Act). Whilst we are cognisant that the making of a guardianship order has the potential to impact on SKG’s autonomy, we were persuaded by the evidence, and SKG’s own responses to our questioning, that he does not necessarily have insight nor appreciate the impact that the guardianship order has had on his life and is likely to have a relatively limited impact on his freedom of decision and freedom of action (s 4(b) of the Act). Importantly, and as previously noted, the evidence indicated that the making of another guardianship order will have a positive impact on SKG’s ongoing wish to engage in his artwork which supports his cultural identity and is a factor in allowing him to remain living in the Tamworth area at this stage because of the positive impact it has on his mental health (s 4(e) of the Act).

Who should be appointed as the guardian?

28. There was no private person available to consider for the role of guardian. In these circumstances we were left with no alternative but to reappoint the Public Guardian.

How long should the order last?

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

30. Consistent with the submissions made by the Public Guardian and the other professionals supporting SKG, we made the guardianship order for three years. We made an order of this length because of the complexities of SKG’s circumstances and the ongoing need for the advocacy and support with decision making that the appointment of a guardian is able to provide.

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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: 08 November 2023