TLS

[2017] NSWCATGD 15

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

TLS [2017] NSWCATGD 15

Hearing dates:

12 July 2017

Date of orders:

12 July 2017

Decision date:

12 July 2017

Jurisdiction:

Guardianship Division

Before:

M D Schyvens, Deputy President

Decision:

The guardianship order for Mr TLS made on 4 July 2016 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 one year from 12 July 2017.

 

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

 

FUNCTIONS:

 

4. The guardian has the following functions:

 

a) Health care

 

To decide what health care Mr TLS may receive.

 

b) Medical/Dental consent

 

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

 

c) Services

 

To make decisions about services to be provided to Mr TLS.

 

CONDITIONS:

 

5. The condition of this order is:

 

a) Standard Condition

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

Catchwords:

GUARDIANSHIP – review of guardianship order – capacity – need for medical and health care functions – National Disability Insurance Scheme – access to NDIS – no family or advocate – Public Guardian appointed

Legislation Cited:

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

Cases Cited:

IF v IG [2004] NSWADTAP 3

Category:

Principal judgment

Parties:

Mr TLS
NSW Public Guardian

File Number(s):

2016/00393095

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

STATUTORY REVIEW OF GUARDIANSHIP ORDER

What the Tribunal decided

1. The Tribunal continued the appointment of the Public Guardian as Mr TLS’s guardian with the authority to make decisions as to the services he receives, his health care, and to provide substitute consent to medical and dental treatment if required.

Background

2. Mr TLS is 58 years of age. He resides in private rental accommodation in regional NSW and receives support from a service provider.

3. On 10 May 2016, Ms LDX, key support worker with the service provider, lodged an application for the appointment of a guardian for Mr TLS. In her application, Ms LDX stated that Mr TLS had an acquired brain injury, mental health issues, and an intellectual disability. He has impaired decision-making and no family or stakeholders to make decisions about his accommodation or health on his behalf.

4. The Tribunal conducted a hearing on 4 July 2016 in regional NSW to determine Ms LDX’s application. The Tribunal decided to make a guardianship order for Mr TLS, appointing the Public Guardian for a period of one year with the authority to make decisions as to the services he receives, his health care, and to provide substitute consent to medical and dental treatment if required.

5. The hearing I conducted on 12 July 2017 was to review the guardianship order to determine whether it should be renewed, renewed and varied, or be allowed to lapse.

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. The Tribunal listed the review of guardianship hearing in regional NSW to assist the participation of Mr TLS in the proceedings. Pleasingly, Mr TLS was able to attend the hearing and participated with the assistance of Ms NZB, Team Leader with the service provider.

What did the Tribunal have to decide?

8. On reviewing the current guardianship order, the Tribunal may renew, renew and vary the order, or determine that the order is to lapse.

9. The questions to be considered by the Tribunal are:

• Is Mr TLS someone for whom the Tribunal could make an order because he continues to have a disability which prevents him from being able to make important life decisions?

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

• Who should be the guardian and how long should the order last?

Is Mr TLS 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?

10. Section 14 of the Guardianship Act 1987 (NSW) 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; 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).

11. At the time the original guardianship order was made on 4 July 2016, the Tribunal concluded in its Reasons for Decision that Mr TLS had a disability which impacted upon his ability to make important life decisions. The Tribunal received at that time evidence of Mr TLS having an intellectual disability, and that his cognitive ability had been assessed to be in the “mild to moderately delayed range”.

12. I did not have any contemporaneous evidence before me authored by health professionals in relation to Mr TLS’s capacity. However, Mr TLS himself advised that he had an intellectual disability and said that he needed the support of a guardian. Ms NZB from the service provider informed me that she had known and provided support to Mr TLS for close to two months. She confirmed that Mr TLS continued to be the recipient of a disability support pension and that in her view he had a cognitive disability, had difficulty with decision making, and needed the support of a guardian.

13. I accepted the evidence of both Mr TLS and Ms NZB that Mr TLS has a cognitive disability which impacts upon his decision-making ability. I find that he remains a person for whom I could renew the guardianship order if there is a remaining need for the order.

Should the Tribunal make a guardianship order and what order should be made?

14. 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.

15. 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).

16. In deciding to make the original guardianship order, the Tribunal explained why it determined there was a need for the appointment of a guardian for Mr TLS as follows:

The Tribunal decided on the basis of all of the evidence that it would be in [Mr TLS]’s best interest that a guardianship order be made. His accommodation was settled. However he apparently had complex medical conditions and on his own evidence, was not able to understand what his doctor was prescribing. He would benefit form a guardian being appointed to monitor his healthcare, review his medications and provide consent for medications if [Mr TLS] was unable to provide informed consent. A guardian can also assist in the preparation of an application to the NDIS and consent to his access to services which were likely to change with the rollout of the NDIS.

17. Mr TLS made it clear to me that he wanted the guardianship order to continue. He said that his guardian had helped him through stressful events, particularly relating to a surgical operation he had during the past year. He said that he liked having the guardianship order in place to “help me with doctors and things”. I note that this evidence was contrary to the contents of the report provided by the Public Guardian prepared for the hearing. In that report under the heading of “[Mr TLS]’s wishes and preferences”, it is stated that:

“On 20/04/2107 (sic) the Public Guardian spoke to [Mr TLS] to seek his views…….when asked about the need for a guardian, he said he did not feel he needed a guardian.”

18. Renewal of the order was required in the view of Ms NZB. She described Mr TLS as having high-support needs with her organisation providing 35 hours support every week. She described two key areas in Mr TLS’s life as to why she believed the renewal of the order was necessary and in the best interests of Mr TLS.

19. First, she informed me that Mr TLS was awaiting confirmation of his acceptance into the National Disability Insurance Scheme (NDIS). She said that once he was accepted into the scheme Mr TLS’s services would be determined through the management of an NDIS plan. In this regard, she said that she and her service could attempt to assist Mr TLS understand options available to him in terms of service provision under the NDIS, but she did not feel they could support him to make decisions as the service provider would be in a conflict of interest position as a potential service provider. She submitted that it was important that Mr TLS have adequate support during this period of transition to ensure he received the ongoing support that he needs to continue to live independently, pointing out that he has no regular contact with family or friends who can provide informal support.

20. Second, Ms NZB said that there was an ongoing need for a guardian to make decisions as to Mr TLS’s health care and medical treatment. She informed me that Mr TLS has complex medical needs, and whilst currently his health was relatively stable, he would not be in a position to understand recommendations for treatment if his health was to deteriorate.

21. The Public Guardian provided a report to the Tribunal dated 21 June 2017 for the purposes of the review hearing. The report recommended that the order lapse.

22. In terms of the provision of services to Mr TLS, the Public Guardian advised in the report that Mr TLS receives appropriate services from the service provider and stated that there was no proposal for new services, and accordingly, there was no ongoing need for a guardian with a services function. Whilst the report did not provide any analysis as to any ramifications for Mr TLS due to the implementation of the NDIS, Ms Bozkurt of the Office of the Public Guardian, advised me during the hearing that in her view “he [Mr TLS] probably could provide a view on services to be provided to him”.

23. As to the matter of decision making as to health care for Mr TLS, the report from the Public Guardian stated that Mr TLS’s general practitioner, Dr Z, held the view that “[Mr TLS] has a basic understanding regarding his medical issues and need for medication, and has the capacity to provide his own consent.” The Public Guardian did not provide any report or correspondence authored by Dr Z, nor did they make any arrangements for him to be available for the hearing.

24. Somewhat incongruously, the Public Guardian’s report goes on to state that “there were no decisions made under the existing order” by the Public Guardian, but then immediately after this statement, advises that the Public Guardian, at the request of Dr Y, provided substitute consent on 9 March 2017 for the “surgical removal of [Mr TLS]’s gallbladder and imaging of the bile duct”.

25. I have determined that there is an ongoing need for the appointment of a guardian for Mr TLS with the authority to make decisions as to the services he receives, his health care, and to provide substitute consent to medical and dental treatment if required.

26. In reaching this conclusion I have placed particular weight on the views expressed by Mr TLS himself during the hearing that he believed he needed the ongoing support provided by a guardian, particularly in relation to his health care and medical treatment, an area in which he expressed concern.

27. I place minimal weight on the evidence provided by the Public Guardian in support of the view that there is no ongoing need for the appointment of a guardian in relation to Mr TLS’s medical treatment. The Public Guardian did not provide direct evidence as to the stated views of Mr TLS’s general practitioner, Dr Z, nor provide details as to how these views were obtained. This diminishes the weight I can afford that evidence. Further, the Public Guardian’s report, in providing details as to how their consent was sought for a gall bladder operation, less than four months prior to the review hearing, actually supports a conclusion that Mr TLS is in fact unable, due to cognitive impairment, to provide his own consent to medical treatment.

28. I also accept and place weight on the evidence of Ms NZB. Her evidence leads me to conclude that in the months ahead there will be a period of transition for Mr TLS as his services are provided through the NDIS. Mr TLS does not have any informal support. Ms NZB is correct in stating that the service provider is conflicted in providing Mr TLS with informal support in this domain in his life when that organisation stands to benefit financially from the decisions made. A guardian is needed to ensure that Mr TLS receives the advocacy and support required to ensure that he obtains the optimal provision of services in the course of his transition to the NDIS.

Who should be appointed and for how long?

29. As there was no private person seeking appointment, I renewed the appointment of the Public Guardian as Mr TLS’s guardian. I renewed the order for a period of one year. It is probable that Mr TLS will have transitioned to the NDIS during that period and it is appropriate that the Tribunal review the order to determine if Mr TLS continues to need the appointment of a guardian with a services function, or at all.

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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 September 2017