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

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

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.
Ms SMD…

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.

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Details

AGLC: SMD [2015] NSWCATGD 40
Case: [2015] NSWCATGD 40
Decision Date: 14 October 2015

CaseChat Overview and Summary

The case involved an application for a guardianship order over an involuntary patient in a mental health unit in New South Wales. The applicant was a social worker who sought the order on the basis that the subject person was unable to manage their own affairs due to mental illness. Despite receiving notice of the hearing, the subject person refused to participate. The Tribunal scheduled the hearing via videoconference to allow the subject person to attend from the mental health unit. The Tribunal was satisfied that the subject person had been given reasonable notice of the hearing, adhering to the procedural fairness requirements under the Guardianship Act 1987 (NSW). The hearing proceeded without the subject person's presence, and the Tribunal considered whether a formal guardianship order was necessary for the subject person's health and wellbeing. The subject person had previously been hospitalised in psychiatric wards overseas and was currently refusing blood tests, necessitating medical treatment decisions.

The legal issues before the Tribunal included whether the subject person's absence from the hearing affected the validity of the proceedings, and if the order was in the subject person's best interests. The Tribunal considered the principles of procedural fairness and the necessity for a formal guardianship order to override objections to medical treatment. The subject person's refusal to have blood tests and their history of hospitalisations highlighted the need for the guardianship order to ensure their health and wellbeing were properly managed. The Tribunal concluded that the application should be granted, appointing the Public Guardian as the subject person's guardian for 12 months with specified authorities.

Orders

Orders of the court

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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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)).