SMG

[2024] NSWCATGD 9

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

SMG [2024] NSWCATGD 9

Hearing dates:

21 May 2024

Date of orders:

21 May 2024

Decision date:

21 May 2024

Jurisdiction:

Guardianship Division

Before:

A Britton, Deputy President
Dr M J Corr, Senior Member (Professional)
S Bullock, General Member (Community)

Decision:

1.   A guardianship order is made for SMG.

2.   The Public Guardian is appointed as the guardian.

3.   This is a continuing guardianship order for a period of 12 months from 21 May 2024.

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

FUNCTIONS:

5.   The guardian has the following functions:

a)   Accommodation

To decide where SMG may reside.

b)   Health care

To decide what health care SMG may receive.

c)   Medical/Dental consent

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

d)   Services

To make decisions about services to be provided to SMG.

e)   Restrictive Practices

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

1.   Chemical restraint

2.   Environmental restraint

3.   Mechanical restraint

4.   Physical restraint

5.   Seclusion

CONDITIONS:

6.   The conditions of this order are:

a)   Standard Condition

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

b)   Aged Care Restrictive Practices

Condition

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

(i)   as a last resort to prevent SMG harming themself or others; and

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

(iii)   after consideration of the likely impact of the use of the restrictive practice on SMG; and

(iv)   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 SMG’s behaviours of concern and which is reviewed regularly and as soon as practicable after any change in SMG’s circumstances.

Catchwords:

GUARDIANSHIP – application for a guardianship order – whether a guardianship order should be made – subject person diagnosed with schizophrenia and Korsakoff’s dementia – subject person lives in an aged care facility – consent requirements for the use of a restrictive practice – Aged Care Act 1997 (Cth) – need for decisions to be made in relation to accommodation, services, health care and consent to medical and dental treatment – need for a restrictive practice function – no private person suitable to be appointed – Public Guardian appointed – order made

Legislation Cited:

Aged Care Act 1997 (Cth), s 54-9(1)

Guardianship Act 1987 (NSW), ss 3(1)-(2), 4, 14(1)-(2), 18(1)(a), 18(1A)

Cases Cited:

None cited.

Texts Cited:

None cited.

Category:

Principal judgment

Parties:

006: Guardianship Application

SMG (the person)
TZN (applicant)
Public Guardian

Representation:

Nil.

File Number(s):

NCAT 2015/00385318

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

1. Eighty-year-old SMG lives in residential aged care on the NSW Central Coast. He has a long-standing diagnosis of schizophrenia. More recently he has been diagnosed with Korsakoff's dementia.

2. In an application made to the Guardianship Division of the NSW Civil and Administrative Tribunal (NCAT), Ms Z, requested the Tribunal to make a guardianship order in respect of SMG (the Application). Ms Z is a registered nurse and the care team manager of the aged care facility operated by a service provider where SMG has been living since 2017 (the Facility).

3. In the Application, in answer to the question, "Why are you asking for a guardian to be appointed?", Ms Z said:

"[SMG]'s decision making capacity has declined severely and he is no longer in any mental state to make informed decisions about his care moving forward. Attempts have been made several times to contact his sister about [SMG] relocating to our DSU [Dementia Support Unit]."

4. Ms Z was unavailable for the hearing listed to determine the Application. We appointed TZN, residential manager of the Facility as substitute applicant. TZN and registered nurse, Ms Y, were the only people to participate in the hearing.

5. Since the application was made, SMG has moved into the Facility's Dementia Support Unit (DSU).

6. For the reasons given below, we made a guardianship order and appointed the NSW Public Guardian as guardian for SMG.

SMG's participation in the hearing

7. In a hearing report dated 13 May 2024, an NCAT officer wrote:

"[SMG] was contacted by phone. While there were some difficulties in understanding all he said, he appeared to indicate a view that he does need help making certain decisions.

…

[SMG] will be supported to join the hearing by video."

8. Ms Y said on the morning of the hearing she had encouraged SMG to attend the hearing but he refused. We adjourned the hearing for a short period to enable Ms Y to speak to SMG again and to encourage him to attend.

9. Following that adjournment, Ms Y reported that she had explained to SMG that the Tribunal wanted to speak with him. SMG replied that he did not want to leave his room, that he was "warm and comfortable". Ms Y said that SMG often does not leave his room until about 9:00 pm. He "very occasionally" ventures out for supper. Ms Y said in her opinion SMG was becoming increasingly reclusive and that it was unlikely that he would attend a hearing in the future.

10. SMG has previously attended hearings of the Guardianship Division, most recently in February 2019. Nonetheless, as Ms Y believes, we think it unlikely that if the hearing was to be adjourned to a later date that SMG would attend. In reaching that conclusion we noted that the available medical evidence reveals a marked decline in SMG's cognitive capacity over the past five years and a corresponding tendency to become increasingly socially isolated. See for example, the Facility's Care Summary plan, p 1. For these reasons we decided to proceed to determine the application in SMG's absence.

Background to application

11. On 1 September 2015 the Tribunal made a made a non-reviewable guardianship order and appointed SMG's sister, Ms X, as his guardian for 12 months.

12. On 7 April 2017, the Tribunal made a further guardianship order for SMG and appointed the Public Guardian for 12 months to make decisions about SMG's accommodation. Ms X told the Tribunal that she felt unable to continue in the role of guardian because of her poor health.

13. In February 2018, the Tribunal made a financial management order in respect of SMG.

Can a guardianship order be made for SMG?

14. The discretion to make a guardianship order can only be exercised if we are satisfied that SMG is a "person in need of a guardian", that is, a "person who because of a disability is totally or partially incapable of managing his or her person": Guardianship Act 1987 (NSW), ss 3(1),14(1). A person with a disability includes a person who is physically and/or psychologically disabled and by virtue of that fact is restricted in one or more major life activities to such an extent that they require supervision or social habilitation [support to live in the community]: Guardianship Act, s 3(2).

Medical evidence

15. In a detailed report dated 28 February 2022 addressed to SMG's GP, psychiatrist, Dr W, stated that SMG had a "seven year history of psychosis secondary to dementia and a significant alcohol use history". Dr W recorded that in mid-January 2022 SMG's "mental state had deteriorated with increasing persecutory delusions about his food and medication being poisoned and subsequent expressions of suicidal ideation due to the belief that his co residents wanted to kill him". Dr W noted that on the day of the assessment, SMG said that he "had enough of the torment" and that his co-residents were going to hang him that evening and saying derogatory things about him. He found this to be frightening.

16. Dr W noted that there was a history of SMG refusing medication, and, recently doing so more frequently. Staff reported that in administering SMG's medication they prioritised "mental health medication".

17. Dr W concluded that SMG's mental state was similar to his presentation in December 2021 and that his symptoms of psychosis was the primary symptom of behavioural and psychological symptoms of dementia (BPSD)". She noted that SMG had a history of fluctuating mental illness, however, people who know him well felt that more recently there had been a decline in his mental state and an increase in psychotic symptoms.

18. Dr W thought the most likely reasons for the relapse of SMG's psychotic symptoms was the result of the recommended cessation of one of his antipsychotic medications and the weaning of his regular Benztropine.

19. In a pro forma medical professional report dated 1 February 2024, GP Dr V, said that SMG has "severe dementia and has been diagnosed with past alcohol addiction, dementia, Korsakoff’s dementia and Schizophrenia". In her opinion, as a consequence of those conditions SMG lacked the ability to make decisions about his personal affairs, specifically accommodation and health care.

20. A resident assessment report dated 27 February 2024 apparently prepared by a member of the Facility's nursing staff, noted that in addition to the conditions referred to above by Dr W, SMG suffered from several physical conditions including bilateral knee pain, impaired mobility, and poor vision. The report recorded that SMG:

1. required assistance with dressing and undressing due to limited range of movement

2. required assistance with showering and personal hygiene

3. while able to feed himself requires assistance with cutting food

4. requires support to take his medication which he often refuses

5. is often verbally and sometimes physically aggressive and abusive towards staff making provision of care difficult.

Consideration

21. We find:

1. as a consequence of dementia, SMG requires support to undertake self-care and many life activities of daily living

2. because of that disability, SMG is currently incapable of managing his person, and

3. SMG is a person in need of a guardian.

Should a guardianship order be made?

22. In considering whether to exercise the discretion to make, or not to make, a guardianship order, we must consider the matters listed in s 14(2) of the Guardianship Act, relevantly, the views of SMG, the importance of preserving SMG's existing family relationships and the practicability of services being provided to SMG without the making of a guardianship order. In addition, we are required to have regard to the statement of principles contained in s 4 of that Act (the section 4 principles).

SMG's views

23. As noted in the NCAT hearing report an NCAT officer recorded that SMG "appeared to indicate the view that he does need helping making certain decisions". That statement is broadly consistent with a statement contained in hearing report prepared in February 2019 for the purpose of a hearing to determine an application for a financial management order in respect of SMG.

Spouse or carer

24. Previous Tribunals have found that SMG does not have a spouse or a carer, that is, a person who provided, or arranged to be provided, regular care and support to SMG before he moved to residential aged care.

25. The only relative in SMG's life appears to be sister, Ms X, who previously acted as guardian for SMG. She did not participate in the hearing. The available material indicates that Ms X is not in regular contact with SMG. In an email to TZN sent 10 May 2024, registered nurse, Mr U wrote "[Ms X] does not wish to be involved in any decision making processes though she does want to be given updates about SMG". Apparently Ms X has her own health problems and is living in residential aged care.

The importance of preserving SMG's existing family relationships and cultural and linguistic environment

26. There is no evidence to suggest that these considerations are relevant to whether the discretion to make a guardianship order should or should not be exercised.

Practicalities of services being provided without a guardianship order

27. Since entering residential age care seven years, SMG has been receiving a range of services. For most of that period he was not the subject of a guardianship order. Therefore, it could not be said that without a guardianship order it would be impracticable for SMG to be provided with services. However, given the extent of his cognitive impairment together with the lack of family or any other form of support, in the unlikely event that SMG were to return to live at home, it would be impractical for services to be provided to him without a guardianship order. In addition, while living in aged care, if he were to require additional or different services, he would be unable to make and to implement decisions about those services.

Findings and conclusions

28. The task of deciding whether to exercise the discretion to make, or not to make, a guardianship order, requires that we balance several considerations. On the one hand, we must observe the principle that SMG must be protected from neglect, abuse, and exploitation. On the other hand, we must restrict SMG's freedom of decision-making and action as little as possible. At all times, the paramount consideration is SMG's welfare and interests.

29. Decisions are currently being made on behalf of SMG by the Facility and by the medical practitioners who are charged with his care. We do not doubt that the Facility and its staff are endeavouring to make decisions which they believe are in SMG's best interest. Nonetheless it is inappropriate that they continue to act as substitute decision-maker for SMG. In addition, given that SMG is now incapable of consenting to medical treatment and the use of restrictive practises, it is not in SMG's best interests that unauthorised decisions continue to be made about the medical treatment he receives and the use of restrictive practises.

30. SMG's evident inability to make decisions on his own behalf about matters of significance concerning his personal affairs; the absence of any family or other form of support; the likelihood that decisions concerning medical treatment, restrictive practices and possibly, accommodation will need to be made, favours the exercise the discretion to make a guardianship order.

Term of the guardianship order

31. An initial guardianship order can be made for a term of up to 12 months, and, for up to three years if certain conditions are met: the person the subject of the order has permanent disabilities, it is unlikely that that person will become capable of managing his or her person, and there is a need for an order of longer duration than 12 months: Guardianship Act, ss 18(1)(a), 18(1A).

32. The pre-condition to the exercise of the discretion to make an initial guardianship order for more than 12 months is satisfied. Nonetheless, we decided to make an order for 12 months largely because in circumstances where the only people involved in SMG's life, are those involved in a professional capacity, it is desirable that the order be reviewed in 12 months, to enable an assessment to be made about whether it is in SMG's best interests that the order in its current form continue.

What functions should the guardian be given?

33. We decided to give the guardian the functions of accommodation, services health care, and restrictive practices (chemical restraint) and consent to medical and dental treatment.

34. SMG's accommodation appears to be settled. However, given that SMG has only recently moved to the DSU, and that decision was made by the Facility, we decided to give the guardian an accommodation function to enable the guardian to assess whether that decision is, and continues to promote SMG's welfare and interests.

35. In the absence of a "person responsible" it is necessary that the guardian be given authority to consent to treatment on behalf SMG together with authority to make decisions about his health care.

36. In addition, we decided to give the guardian a restrictive practice function. SMG is currently subjected to restrictive practices, namely a "practice or intervention that has the effect of restricting the rights or freedom of movement of the care recipient": Aged Care Act 1997 (Cth), s 54-9(1). One of five types of restrictive practices, "environmental restraint", is "a practice or intervention that restricts, or involves restricting, a care recipient's free access to all parts of their environment (including items and activities) for the primary purpose of influencing their behaviour". Being placed in a locked facility, such as the DSU, constitutes environmental restraint.

37. Dr V in a letter dated 19 May 2024 stated that SMG is not subject to "chemical restraint" because the reason Oxazepam and Olanzapine were prescribed for SMG was to treat anxiety and schizophrenia. We respectfully disagree with Dr V's opinion. Chemical restraint is defined by the Aged Care Act to mean "a practice or intervention that involves the use of medication or a chemical substance for the primary purpose of influencing a care recipient's behaviour". A resident assessment report dated 27 February 2024 records that SMG is given Oxazepam on PRN basis "to be used when [SMG] is extremely overwhelmed and exhibiting [challenging behaviours]". That note tends to indicate that Oxazepam, a benzodiazepine, is being used for the primary purpose of influencing SMG's behaviour.

38. We decided not to restrict the scope of the restrictive practice function to the types of restrictive practices currently being used in respect of SMG. On the available material it is not possible to rule out the possibility that in the future other types of restrictive practices may be recommended, in addition to, or in substitution for, those currently used. Our decision should not be taken to suggest that we hold the view that additional or alternative restrictive practices are necessary or appropriate, or those currently used are unnecessary or inappropriate. Rather our decision simply reflects that the role of the Tribunal is not to consent to, or to withhold consent to the use of restrictive practices on behalf of the person the subject of a guardianship order, or the type of restrictive practices for which consent should be given or withheld. Those types of decisions are ones required to be made by a guardian with a restrictive practice function, in accordance with the section 4 principles, and the standard condition set out in Order 6 above.

Who should be appointed as SMG's guardian?

39. No one nominated to act as guardian for SMG. Therefore, we must appoint the Public Guardian.

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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: 01 October 2024