SMD

[2015] NSWCATGD 40

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	SMD [2015] NSWCATGD 40
Hearing dates:	14 October 2015
Date of orders:	14 October 2015
Decision date:	14 October 2015
Jurisdiction:	Guardianship Division
Before:	G Moin, Senior Member (Legal) M Matheson, Senior Member (Professional) S Barnes, General Member (Community)
Decision:	The Public Guardian was appointed as guardian for 12 months with authority to make decisions on accommodation, including the authority to authorise others to assist with the implementation of decisions, healthcare, medical and dental treatment, and to override objections to treatment, services, travel outside Australia and surrender of passport pending decisions about travel.
Catchwords:	GUARDIANSHIP – where the subject person is an involuntary patient in a hospital mental health unit – application made by social worker – subject person was given notice of hearing but refused to participate – hearing scheduled by videoconference at the mental health unit to enable subject person to attend – Tribunal satisfied that subject person was given reasonable notice of hearing – requirements of procedural fairness in light of section 4 principles of the Guardianship Act 1987 (NSW) – hearing proceeded in absence of subject person – need for a formal guardianship order – best interests of the subject person’s health and wellbeing – application override objections to medical treatment – subject person refuses to have blood tests – where subject person has previously been hospitalised in psychiatric wards during travel overseas
Legislation Cited:	Guardianship Act 1987 (NSW) Mental Health Act 2007 (NSW)
Cases Cited:	GM v Guardianship Tribunal; GM v Protective Commissioner [2003] NSWADTAP 59 Hopkins v Smethwick Board of Health (1890) 24 QBD 712 IF v IG [2004] NSWADTAP 3 Kioa v West [1985] CLR 550 LA v Protective Commissioner [2004] NSWADTAP 39
Category:	Principal judgment
Parties:	Ms SMD (subject person) Ms UQV (substitute applicant) The Public Guardian
Representation:	Nil
File Number(s):	60470
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 Ms SMD’s guardian for a period of 12 months to make decisions on her behalf about her accommodation (with coercive powers), health care, and medical and dental treatment (with the ability to override Ms SMD’s objections to treatment), services which she should receive, whether or not Ms SMD can travel to any place outside Australia and to decide whether or not Ms SMD’s passport should be surrendered to the guardian or some authority the guardian nominates pending a decision by the guardian concerning Ms SMD’s travel as set out in the Tribunal’s order.

Background

2. Ms SMD is a 59-year-old woman who is an involuntary patient at a Mental Health Unit at a public hospital (“Unit”). Ms SMD was admitted to the Unit on 29 July 2015 following concerns about her mental state.

3. Ms SMD usually lives alone in a private rental property in Regional NSW with support from a Community Mental Health Team (“CMHT”).

4. Ms SMD has two children, a son who lives in the United Kingdom and a daughter, Ms NAT, who lives in Sydney. Ms IGI is Ms SMD’s sister.

5. The applicant, Ms IKD, is a social worker at the Unit. Ms IKD states in her application that a guardian is required because Ms SMD – who has been diagnosed with treatment resistant schizoaffective disorder – is non-compliant with her medication and refuses to accept additional support in the community. Ms IKD proposes the appointment of the Public Guardian as Ms SMD’s guardian.

6. On 29 September 2015 Ms UQV, social worker, accepted the role of substitute applicant to replace Ms IKD who was on leave at the time of the hearing.

The hearing

7. 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].

8. The hearing was undertaken by way of videoconference.

The absence of Ms SMD

9. When the hearing commenced, those present were Dr IRD, psychiatry registrar, Ms UQV, social worker at the Unit, and Ms DXG, a case worker at CMHT. Ms SMD was not present.

10. Dr IRD informed the Tribunal that she tried to persuade Ms SMD to attend the hearing. However, Ms SMD is refusing to acknowledge in any way the application and refuses to attend the hearing. It was Dr IRD’s view that Ms SMD is unlikely to change her opinion. Dr IRD has been endeavouring for two weeks to encourage Ms SMD to attend the hearing.

11. Ms DXG stated to the Tribunal that she approached Ms SMD 10 minutes prior to the hearing and encouraged her to attend. However, Ms SMD refused to attend the hearing.

12. It was the opinion of Dr IRD, Ms DXG, and Ms UQV that Ms SMD is not likely to ever attend the hearing in relation to the guardianship application.

13. The Tribunal was conscious of the fact that it is required to afford procedural fairness to a person whose interests may be affected by the Tribunal’s decision. Clearly, as the person who was the subject of the application, Ms SMD’s interests may be affected by any decision that the Tribunal makes.

14. One aspect of procedural fairness is to ensure that Ms SMD had notice of the hearing. The Tribunal was satisfied that Ms SMD had reasonable notice of the time, date, and location of the hearing (see Hopkins v Smethwick Board of Health (1890) 24 QBD 712 at [715]). It should also be noted that the hearing was conducted by way of videoconference at the Unit for ease of attendance for Ms SMD at the hearing.

15. A further aspect of procedural fairness requires the Tribunal to hear a person before making a decision affecting his or her interests. What this means is that a person who would be affected by a decision is entitled to attend the hearing in order to give evidence, make submissions, and call witnesses.

16. However, this aspect of procedural fairness must be applied in a way which is “appropriate and adapted to the circumstances of the particular case” (Kioa v West [1985] CLR 550 at page 585).

17. It should be noted at this point that the Tribunal’s jurisdiction is essentially protective in nature. As such one of “its primary aims is to protect vulnerable people from neglect, abuse and exploitation….. In exercising any function, “the welfare and interests” of the subject person “should be given paramount consideration” (see s 4(a) of the Guardianship Act 1987 (NSW))” (GM v Guardianship Tribunal & Ors; GM v Protective Commissioner & Ors [2003] NSWADTAP 59 at [40]).

18. While the welfare and interests of Ms SMD should be given paramount consideration, the Tribunal also has a duty imposed on it under s 4(d) of the Guardianship Act to take into consideration the views of Ms SMD. However, as has been stated by the Appeal Panel in LA v Protective Commissioner & Ors [2004] NSWADTAP 39 at [36]:

…the principles in section 4 are intended as an aid to interpreting and applying the Act as a whole and as a guide to the considerations the Guardianship Tribunal should observe when exercising its discretionary powers. The relevance and applicability of those principles will depend on all the circumstances of the case.

19. As will be more fully set out below Ms SMD’s schizoaffective illness secondary to medication non-compliance is very severe with her diagnosis impacting on her ability to make decisions in her best interests. The evidence presented to the Tribunal by Dr IRD indicated that Ms SMD’s understanding of her mental and physical health is not reality based but is delusional and grandiose.

20. Adapting the rules of procedural fairness to the situation that Ms SMD finds herself in and the duty of the Tribunal to give paramount consideration to the welfare and interests of Ms SMD led the Tribunal to the view that it would not be a breach of procedural fairness to proceed with the hearing in the absence of Ms SMD. In making this decision the Tribunal was conscious of Ms SMD’s diagnosis and the evidence from the healthcare professionals that it was unlikely that Ms SMD would ever attend a hearing. There was a need for the hearing to be dealt with as soon as possible in the best interests of Ms SMD.

What did the Tribunal have to decide?

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

• Is Ms SMD someone for whom the Tribunal could make an order because she has a disability which prevents her 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 Ms SMD someone for whom the Tribunal could make an order because she has a disability which prevents her from being able to make important life decisions?

22. 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).

23. The Tribunal had before it a report prepared by Dr IRD dated 26 August 2015. The report indicated relevantly that Ms SMD:

• is well known to a Mental Health Services facility in Regional NSW having had 21 admissions since 2005;

• has a schizoaffective disorder;

• was admitted to the Unit on 20 August 2015 as a result of concern by Ms DXG of Ms SMD’s worsening mental state – a relapse of her schizoaffective illness secondary to medication non-compliance;

• since admission to the Unit continues to be grandiose, believing herself to be the Queen of England requesting to talk to her Queen’s counsels in London and being dismissive of staff stating “you are not royalty;”

• denies she is mentally unwell;

• refuses all oral medications as well as physical observations;

• was not granted leave from the Unit initially given concerns of her absconding of which she has a history;

• shows minimal improvement since being admitted to the Unit;

• has no insight into her illness;

• would be at risk of further deterioration if left in the community.

24. All present at the hearing considered that Ms SMD has a disability.

25. In light of the evidence referred to above the Tribunal is satisfied that Ms SMD has a disability which prevents her making important life decisions. She 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?

26. 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.

27. 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).

The views of Ms SMD

28. As stated earlier in these Reasons for Decision Ms SMD chose not to be present at the hearing. As a consequence the Tribunal was not able to obtain her views as to the application.

The views of Dr IRD

29. In a further report received by the Tribunal on 14 October 2015 Dr IRD set out the reasons why the treating team at the Unit made a guardianship application.

30. In her report Dr IRD explains that Ms SMD is declining not only psychiatrically but physically due to her belief that she must only be treated by her brain surgeons or psychiatrists from overseas. Ms SMD has declined any organic screens while in hospital and it is therefore not possible to know if there are any physical health concerns.

31. A further reason for applying for guardianship is linked to the concerns that the treating team has in relation to accommodation. Dr IRD notes that although Ms SMD has remained in the same apartment for 10 years there are now concerns about whether her continued living there is a sustainable option for her.

32. The concerns are that new neighbours are not as understanding of Ms SMD’s condition and Ms SMD’s safety. The treating team consider that a better option for Ms SMD is to live in a more supported environment to ensure her safety and independence are maintained in the years to come.

33. Being in a supported environment would allow staff from that facility to assist Ms SMD with her daily medications and act as a further safety net for observing her for medication non-compliance or declines in her mental state.

34. Dr IRD reports that a supported accommodation arrangement will be crucial for either of the treating team’s current treatment options (clozapine or maintenance ECT) to succeed. It is Dr IRD’s view that without success of these treatment options Ms SMD will continue to spend much of her time in hospital, unwell and frustrated.

35. Although Ms SMD’s children did not participate in the hearing Dr IRD informed the Tribunal via her report that the options for Ms SMD have been discussed in detail in a face-to-face meeting with the inpatient/community team and Ms SMD’s children. Ms SMD’s sister was linked in via speakerphone for this meeting.

36. Dr IRD also believes there is a need to restrict Ms SMD’s overseas travel. Ms SMD has the means to travel overseas. In 2013 she made a two-day overseas trip and on her return checked into a hotel in Sydney City. She had to be admitted to a public hospital in Sydney after being found naked in the lobby of that hotel.

37. In a report dated 20 March 2013 from Dr Z, a psychiatric registrar at the Unit, it is stated that when Ms SMD was admitted to the public hospital in Sydney, she was grandiose and psychotic claiming to be the King of Scotland, being pursued by Kerry Packer and that “the Indians and Chinese were out to kill her.”

38. Dr IRD believes that community treatment is extremely difficult and Ms SMD has placed her reputation and physical safety at significant risk by her behaviour in her neighbourhood leading up to her admission to the Unit.

39. Due to her refusal to receive any investigations or consent to any medical treatment Dr IRD believes that there is a genuine need for Ms SMD to have a guardian appointed who is able to override Ms SMD’s objections to medical and dental treatment.

The importance of preserving Ms SMD's existing family relationships

40. Ms DXG informed the Tribunal that Ms SMD’s family have been actively involved in her care. Ms SMD’s children and her sister have participated in discharge planning meetings at the Unit and phone her regularly.

41. According to Ms DXG, while Ms SMD’s children and her sister support the guardianship application they do not want to be Ms SMD’s guardian because they wish to maintain the good relationship that they have with Ms SMD. If they were appointed as Ms SMD’s guardian they believe that the good relationship that they have with Ms SMD would be adversely impacted upon given her diagnosis.

42. In light of Ms SMD’s significant mental illness, the Tribunal recognised that it was important for Ms SMD to have her children and her sister provide her with support, love, and care. However, the Tribunal did not consider that the appointment of a guardian would impact on Ms SMD’s existing family relationships particularly in circumstances where her family members were not appointed as her guardian.

The importance of preserving Ms SMD's particular cultural and linguistic environments

43. The Tribunal did not consider that if it was to make a determination that Ms SMD needed a guardian there would be any impact on Ms SMD’s particular cultural and linguistic environments.

The practicability of services being provided to Ms SMD without the need for the making of an order

44. Due to Ms SMD’s delusional and grandiose way of thinking the Tribunal considered it would be unrealistic in the extreme to expect Ms SMD to be able to organise services for herself.

45. Further, there was evidence before the Tribunal that Ms SMD did not believe that she required any additional services. Indeed, Ms SMD was resistant to additional services being provided to her despite these services being beneficial to her health and well-being.

46. As a consequence of Ms SMD’s diagnosis the Tribunal did not believe that it was practical to consider that services could be provided to Ms SMD without an order being in place.

The Tribunal’s determination

47. The Tribunal took into account each of the matters set out in s 14(2) of the Guardianship Act and considered the principles provided for in s 4 of the Act and concluded on the evidence before it that the Tribunal should make a guardianship order.

48. In reaching this decision the Tribunal noted the significant concerns that the healthcare professionals at the hearing had in relation to Ms SMD’s ongoing care without an order being made. Ms SMD has shown no real improvement in her condition despite being at the Unit and the appointment of a guardian was seen as a positive step for Ms SMD.

49. The evidence also indicated that Ms SMD’s treatment options would be best served if she was in supported accommodation, an option that Ms SMD had indicated to those treating her she did not wish to take up. For this reason, the Tribunal considered that it would be in Ms SMD’s best interests for a guardian to have the ability to make decisions concerning Ms SMD’s accommodation.

50. In light of the evidence given to the Tribunal in relation to Ms SMD’s absconding from her accommodation and health care facilities and her grandiose and delusional thinking the Tribunal believed that it was appropriate for the guardian to have a coercive accommodation function. Such a function would allow the guardian to authorise others, for Ms SMD’s safety and well-being, to take her from her present location to a place of residence approved by the guardian, keep her at that place of residence and bring her back to that place of residence should she leave it.

51. Despite being an involuntary patient at the Unit for some weeks Ms SMD has not permitted healthcare professionals to undertake screening and other health checks in her best interests. The Tribunal considered that it was appropriate to give to the guardian the ability to make decisions about appropriate health care and health services for Ms SMD.

52. The Tribunal also believe that it is appropriate to vest in the guardian the ability to consent to medical and dental treatment on behalf of Ms SMD. The evidence indicated that there was no one who was prepared to act as Ms SMD’s “person responsible.”

53. Unfortunately Ms SMD’s diagnosis is one of treatment resistant schizoaffective disorder. Ms SMD also presents with delusional and grandiose ideas such as believing she is the “Queen of England.”

54. Ms UQV had given evidence to the Tribunal that the overriding reason for the application being made was to secure accommodation for Ms SMD and give to a guardian the ability to override Ms SMD’s objections to residing in a particular accommodation setting and also to ensure that she had support to take her medication to assist in the ongoing management of her diagnosis.

47. Dr IRD stated to the Tribunal that in her opinion it would be important for a guardian to have the ability to override objections that Ms SMD may have to medical and dental treatment. A very simple example that Dr IRD gave to the Tribunal was that Ms SMD, despite being an inpatient at the Unit for two months has refused any blood tests. The Tribunal noted that the guardian would only be able to exercise this function, overriding Ms SMD’s objections to medical treatment, if the guardian considered that the proposed treatment was manifestly in the best interests of Ms SMD (see s 46A(4) of the Guardianship Act).

48. The Tribunal took into account Ms SMD’s situation and was of the view that it would be important for Ms SMD’s guardian to have the ability to organise services on behalf of Ms SMD.

49. Dr IRD stated to the Tribunal that in her view there was a need to restrict Ms SMD’s overseas travel. The evidence was that Ms SMD had made a two-day overseas visit and on her return had engaged in behaviours that had a significant impact on her reputation. Ms SMD has the means to travel overseas. The reports filed with the Tribunal indicated that Ms SMD has been hospitalised in psychiatric wards in the United Kingdom during trips away from Australia.

50. In making a decision to restrict Ms SMD’s ability to travel overseas the Tribunal must, as with any other decision it makes, take into account the principles in s 4 of the Guardianship Act. As has been stated earlier in these Reasons for Decision the paramount consideration however is the interests and welfare of Ms SMD (see s 4(a)).

51. The Tribunal did consider that it was in Ms SMD’s best interests and would ultimately protect her welfare if a guardian had the ability to make decisions about whether or not Ms SMD can travel to any place outside Australia. It is simply not in Ms SMD’s best interests to travel overseas when she is so unwell.

52. Further, given the evidence that Ms SMD has been involved in an incident at Newcastle airport that required her to be removed from the airport and taken to the Unit, the Tribunal considered it was appropriate for a guardian to be able to make a decision about whether or not the passport of Ms SMD should be surrendered to the guardian or some other authority the guardian nominates pending a decision by the guardian concerning travel. Again, Tribunal considered that such a function given to a guardian would be in Ms SMD’s best interests.

Who should be the guardian?

61. 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 (s 15(3), Guardianship Act).

62. Ms SMD’s sister and children believe that it would not be in Ms SMD’s best interests if any of them were appointed as her guardian. Ms SMD’s family believed that if they were appointed her guardian it would adversely impact on the relationship with Ms SMD.

63. As there is no private person available to be appointed as guardian, the Tribunal appointed the Public Guardian.

64. Due to the fact that the Public Guardian did not participate in the hearing and given that the Tribunal considered it appropriate to give to the guardian the ability to override any objections that Ms SMD may have to medical and dental treatment the Public Guardian was telephoned by the Tribunal to seek its consent to the Public Guardian having this function (see s 46A(2) of the Guardianship Act).

65. After explaining to the duty guardian at the Public Guardian’s office the circumstances surrounding Ms SMD’s situation, her diagnosis, and the views of the healthcare professionals at the hearing, the duty guardian gave consent to the Public Guardian having the function of being able to override Ms SMD’s objections to medical and dental treatment

How long should the order last?

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

67. The Tribunal decided to make an order for 12 months because it considered that in this time Ms SMD should be settled in appropriate accommodation where her health care needs should be being met and appropriate services provided to her.

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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: 10 February 2016