SZO

[2021] NSWCATGD 17

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

SZO [2021] NSWCATGD 17

Hearing dates:

5 September 2021

Date of orders:

5 September 2021

Decision date:

05 September 2021

Jurisdiction:

Guardianship Division

Before:

J Conley, Senior Member (Legal)
Dr A Baird, Senior Member (Professional)
Dr J M Green, General Member (Community)

Decision:

1. A guardianship order is made for SZO.

2. The Public Guardian is appointed as the guardian.

3. This is a continuing guardianship order for a period of eight weeks from 5 September 2021.

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

FUNCTIONS:

5. The guardian has the following functions:

a) Accommodation

To decide where SZO may reside including for the purposes of hospitalisation.

b) The guardian may authorise others including members of NSW Police and the Ambulance Service of NSW to:

i) take SZO to a place approved by the guardian.

ii) keep him at that place.

iii) return him to that place should he leave it.

c) Health care

To decide what health care SZO may receive.

d) Medical/Dental consent

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

e) Services

To make decisions about services to be provided to SZO.

f) Restrictive Practices

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

1. Chemical restraint

AUTHORITY:

6. The guardian has the following authority:

a) Authority to override objections to medical treatment

i) The guardian may override the objection of SZO to major or minor medical treatment.

CONDITIONS:

7. The conditions of this order are:

a) Standard Condition

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

b) Restrictive Practices Condition

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

(i) as a last resort; and

(ii) in accordance with a care and support plan that incorporates the behaviours that are being addressed and non-pharmacological strategies in place to address the behaviour.

Catchwords:

GUARDIANSHIP – after hours hearing – urgent hearing requested as subject person trying to leave hospital against medical advice – cognitive impairment associated with Wernicke’s encephalopathy – whether limited notice of hearing to subject person breached procedural fairness – risk outweighed limited notice – eight week reviewable guardianship order made.

Legislation Cited:

Guardianship Act 1987 (NSW), ss 3(1)-(2), 4, 10, 10(2), 14, 14(2)

Cases Cited:

IF v IG [2004] NSWADTAP 3

Texts Cited:

None cited.

Category:

Principal judgment

Parties:

001: Guardianship Application

SZO (the person)
LYX (applicant)
Public Guardian

Representation:

Nil.

File Number(s):

NCAT 2021/00254466

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

GUARDIANSHIP APPLICATION; FINANCIAL MANAGEMENT APPLICATION

What was decided

1. A guardianship order is made for SZO. The order is for a period of eight weeks. The Public Guardian is appointed as the guardian.

2. The guardian is appointed with the authority to make decisions about accommodation (including hospitalisation with the full authorities to authorise others to implement decisions), services, health care, medical and dental consents with the authority to override objections to medical treatment and restrictive practices in the form of chemical restraint.

The Background

3. SZO is a 56-year-old man. He is reported to have cognitive impairment associated with Wernicke’s encephalopathy and alcoholic cirrhosis of the liver. At the time of this hearing he was an inpatient at a public hospital. He usually lives alone.

4. The Tribunal was contacted on a weekend outside the usual business hours of the Tribunal. LYX a Gastroenterology Advanced Trainee at the public hospital was the applicant. She was requesting an urgent hearing in respect of a guardianship application. It was claimed SZO was trying to leave hospital and would be at significant risk if he were to do so.

5. These are the Reasons for Decision following the hearing of a guardianship application.

The hearing

6. 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.]

7. Section 10 of the Guardianship Act 1987 (NSW) (“the Act”) requires that an applicant for guardianship order in respect of a person, must as soon as possible after the application has been made, cause a copy of the application to be served on each party to the proceedings before the Tribunal. There is also a requirement that the Tribunal must cause a Notice specifying the time, date, and place of the hearing. Despite this, s 10(2) of the Act provides that failure to serve a copy of an application or a notice in accordance with the section does not vitiate the decision of the Tribunal on the application.

8. This hearing occurred on the weekend outside of the usual business hours of the Tribunal. SZO had not been notified of the hearing in accordance with the above requirements. He had been told about the hearing by the After-hours Medical Registrar at the public hospital, just shortly before the commencement of the hearing. He declined to participate in the hearing in the context of agitation.

9. We considered how to proceed with this application. We considered SZO’s right to procedural fairness. We also considered this issue in the context of the principles in s 4 of the Act. The welfare and interests of SZO are the paramount consideration. If the hearing were to be delayed and not heard after-hours, we find that SZO would be at very significant risk.

10. Balancing these matters and in light of the immediate risks identified by the applicant, we decided to proceed with the application and give consideration to the making of a very short guardianship order. This would allow SZO to put his views before the Tribunal in a more considered way at the earliest opportunity.

Guardianship Application

What did we have to decide?

11. The questions which had to be decided were:

• Is SZO someone for whom we could make an order because he has a disability which prevents him from being able to make important life decisions?

• Should we make a guardianship order and if so, what order should be made?

• Who should be the guardian?

• How long should the order last?

Is SZO someone for whom we could make an order because he has a disability which prevents him from being able to make important life decisions?

12. Section 14 of 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).

13. LYX told us that SZO had a history of known alcohol misuse disorder. He has a history of drinking two to three bottles of wine per day, for approximately 15 to 20 years. He has a background of alcoholic cirrhosis of the liver and Wernicke’s encephalopathy. He had evidence of cerebral atrophy on CT brain scan. He also had a previous underlying mental illness in the form of psychotic depression, but was not currently engaged with the community mental health team.

14. LYX told us that SZO has significant cognitive dysfunction. He was brought into hospital by Ambulance after being found on the footpath. It was unclear if he had a medical issue, however his liver markers were suggestive of decompensation of the liver. He agreed to investigations and it was discovered he had an unstable fracture of the spine, which was close to the spinal cord. He was given options for treatment. One option was spinal surgery which he declined. This decision was not considered unreasonable by the treating doctors. The alternate form of treatment was an externally-fitted brace.

15. SZO declined to stay in hospital to wait for the brace to be ready. He demanded to leave before it was available. SZO initially left hospital the first time with a plan to catch a taxi home. Instead, he was found at the hospital bus stop approximately 30 minutes later. He had fallen and was bleeding from the head. He could not explain the circumstances that led him to falling. He was taken back to hospital for a CT scan of the brain. He again requested to be allowed to go home. While he was again allowed to go home, on the second occasion he was placed in a taxi to take him home.

16. Approximately four hours later, SZO was brought into hospital by Police. He had three falls in the community over what he described as a period of three days. He was very confused as to time and place and thought he had been in hospital for 17 years. He had initially agreed to stay in hospital, but has now changed his mind.

17. LYX told us that if SZO has further falls, he is at risk of the fracture moving and damaging his spinal cord which could lead to paralysis of the lower legs.

18. LYX told us that it is no longer considered SZO would be safe to be discharged. He is not considered safe to go home due to his poor mobility and lack of insight. He is unsteady on his feet and is therefore a falls risk.

19. LYX is a doctor on the treating team at the public hospital where SZO is currently an inpatient. We therefore accepted her evidence. We were satisfied that by virtue of cognitive impairment, likely alcohol related, cirrhosis of the liver and possible traumatic brain injury, SZO is restricted in one or more major life activities to such an extent that he requires supervision or social habilitation. We were satisfied he has a disability within the meaning of s 3(2) of the Act.

20. We were further satisfied that because of his disability, he is at least partially incapable of managing his person. He is unable to make decisions about major lifestyle matters. He is therefore a person for whom we could make a guardianship order.

Should we make a guardianship order and what order should be made?

21. We must consider all of the following matters set out in s 14(2) of the Act before exercising the discretion to make a guardianship order:

1. the views (if any) of:

1. the person;

2. the person’s spouse;

3. the person’s carer; and

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.

22. These matters have no hierarchy or weighting and each is a mandatory consideration. However, we must undertake a balancing exercise for its consideration of the matters in s 14(2) of the Act. When undertaking this task we may be guided by the principles that are set out in s 4 of the Act (see IF v IG [2004] NSWADTAP 3).

23. Dr Z was the After-hours Medical Registrar on Duty at the public hospital. She told us that she had spoken to SZO and tried to encourage him to participate in this hearing. He had declined in the context of agitation. We therefore proceeded with the hearing in the absence of SZO due to the identified significant risks.

24. As noted above, LYX told us that SZO is now insisting he leave hospital. LYX told us that they needed to keep SZO in hospital in order to manage his confusion. The treating team consider that he is not safe to be discharged at this time, as he is a falls risk. In addition to this, there is a need to keep him in hospital to undertake further tests. This includes further blood tests to investigate whether there are any reversible causes to his cognitive impairment. This also included CT and MRI scans and a bone density scan.

25. LYX told us that SZO has been refusing Thiamine. He has Wernicke’s encephalopathy and the refusal of the Thiamine may lead to worsening confusion. He is malnourished and deficient in vitamin B1. The administration of Thiamine can assist with brain function. A failure to administer this treatment can result in permanent cognitive impairment.

26. LYX told us that on the day of this hearing, there had been an issue with SZO experiencing high levels of agitation, in the context of being managed on the COVID-19 quarantine ward. This resulted in a “code black” incident. SZO was agitated and nursing staff had to be called twice to protect staff. He was agitated because he wanted a cigarette. LYX said it was expected SZO would leave the quarantine ward that afternoon. They were attempting to address the issues with the cigarettes and he was being given nicotine replacement therapy. It was proposed to use chemical restraint in the form of Intramuscular Olanzapine PRN, to manage his aggressive behaviours and agitation.

27. The Duty Guardian on behalf of the Public Guardian participated in the hearing. She indicated that there would likely be a need for a guardian to give consent to chemical restraint. There was also a need to make an accommodation decision about keeping SZO in hospital, with the full authorities to authorize others to implement decisions and services to enable discharge planning. She indicated that there was also a need to make decisions about health care, and medical and dental consents. She requested the authority to override objections to medical treatment.

28. We had regard to the evidence in the context of the criteria referred to above and considered whether to make a guardianship order in the circumstances here. SZO declined to participate in the hearing. He has no spouse or carer.

29. There was no evidence SZO has family involved in his life. There was therefore no indication a guardian was required to preserve SZO’s family relationships, or that the appointment of a guardian would adversely affect those relationships. There was no indication that cultural considerations were relevant in the immediate circumstances here.

30. We considered if services could be provided, without the appointment of a guardian. The immediate issue is that SZO was very confused and further investigations were required to determine if there was any reversible cause for his confusion. He was also at immediate risk of spinal cord injury with potential for paralysis. SZO has no insight into his circumstances, including the significant risks if he were to leave hospital at this time. He is at risk of both spinal injury and increasing cognitive impairment if he does not remain in Hospital until his condition has been stabilised. He is wanting to leave Hospital, complicated by his reduced access to cigarettes and has been attempting to leave hospital.

31. SZO has been extremely agitated and attempting to assault staff, resulting in the calling of security. He has required PRN medication to manage the aggressive behaviours. The agitation could result in SZO injury himself or other persons. As the PRN medication is used to manage the behaviour rather than treat a diagnosed condition, it is a restrictive practice being chemical restraint. As a restrictive practice the consent of a guardian is required. As a restrictive practice, it would be expected that a condition would be that it be used in the context of a Care Plan for SZO. Such a Care Plan should include a range of strategies are used to manage the behaviour and that the restrictive practice is used as a last resort.

32. SZO has also been refusing medications which are critical for his health. If he does not receive the medications he will likely experience a further decline in his cognition.

33. Balancing all these matters, we therefore decided there was a need to appoint a guardian. We accept the reasoning of LYX and the Duty Guardian in respect of the decision-making functions required in the short term. We appointed a guardian to make decisions about accommodation (including hospitalisation with the full authorities to authorise others to implement decisions), services, health care, medical and dental consents with the authority to override objections to medical treatment, and also restrictive practices in the form of chemical restraint.

Who should we appoint as the guardian?

34. There was no private person available to be appointed. We therefore appointed the Public Guardian.

How long is the order?

35. SZO was too agitated to participate in the hearing. He declined to participate. There was no evidence to indicate that this would change in the immediate short term. In these circumstances we therefore made a very short order of eight weeks. This would allow investigations to be undertaken and SZO’s condition to be stabilised. This would enable SZO to participate in the hearing at an early opportunity.

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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 November 2021