TQX - [2016] NSWCATGD 56

NSW Civil and Administrative Tribunal

New South Wales

Amendment notes

Medium Neutral Citation: TQX [2016] NSWCATGD 56
Hearing dates: 4 November 2016
Date of orders: 04 November 2016
Decision date: 04 November 2016
Jurisdiction: Guardianship Division
Before: J Moir, Senior Member (Legal)
Dr C West, Senior Member (Professional)
L Porter, General Member (Community)
Decision:
1. A guardianship order is made for Mr TQX.
2. The Public Guardian is appointed as the guardian.
3. This is a continuing guardianship order for a period of 18 months from the date of this order.
4. This is a limited guardianship order giving the guardian custody of Mr TQX to the extent necessary to carry out health care, medical and dental consent and services functions.

Catchwords:
GUARDIANSHIP – application for guardianship order – National Disability Insurance Scheme – need for an order – no family or advocate – access to NDIS – nominee provisions – NDIS first and second planning processes – transfer of Ageing, Disability and Home Care ADHC accommodation service to non-government sector – Public Guardian appointed

Legislation Cited:
National Disability Insurance Scheme Act 2013 (Cth), s 18; Parts 2 and Part 5
Guardianship Act 1987 (NSW), ss 3(1), 3(2), 4, 14, 14(2), 15(3)
National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth), rule 2.1
National Disability Insurance Scheme (Nominees) Rules 2013 (Cth)

Cases Cited:
IF v IG [2004] NSWADTAP 3
KCG [2014] NSWCATGD 7

Texts Cited:
NDIS Operational Guideline – Gateway – Making an access request

Category: Principal judgment
Parties: Mr TQX (subject person)
Ms UMQ (applicant)
The NSW Public Guardian
File Number(s): 39661
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 Mr TQX’s guardian for a period of 18 months to make decisions on his behalf about services which he should receive and his health care, and medical and dental treatment as set out in the Tribunal’s order.

Background

Mr TQX is a 52-year-old man who resides in a group home in southwest Sydney, which is managed by Ageing, Disability and Home Care (ADHC). He is reported to have an intellectual disability and Downs Syndrome.
Mr TQX has previously been subject to a guardianship order in the period August 2008 until October 2010. He has been known previously as Mr TQX2. His financial affairs have been under the management of the NSW Trustee and Guardian for some years.
On 22 August 2016, the Tribunal received an application for a guardian to be appointed for Mr TQX from Ms UMQ, Team leader at his group home. She proposes that a guardian is needed to make decisions regarding Mr TQX’s National Disability Insurance Scheme (NDIS) plan, as he has no family or friends involved who is able to do this.

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.

Continue reading TQX

Details

AGLC: TQX [2016] NSWCATGD 56
Case: [2016] NSWCATGD 56
Decision Date: 04 November 2016

CaseChat Overview and Summary

The case before the court was an application for a guardianship order for Mr TQX under the Guardianship and Administration Act 2000. Mr TQX has severe intellectual disabilities and is unable to manage his affairs, including accessing the National Disability Insurance Scheme (NDIS). The application was made by the Public Guardian, as there were no family members or advocates available to act on Mr TQX's behalf. The primary issue before the court was whether Mr TQX required a guardianship order and, if so, whether the Public Guardian should be appointed as his guardian.

The court considered the need for a guardianship order in light of Mr TQX's severe intellectual disability and his reliance on the NDIS for his care and support. The court also took into account the transfer of the Ageing, Disability and Home Care (ADHC) accommodation service to the non-government sector, which raised concerns about the continuity of care and support for Mr TQX. The court further examined the provisions of the NDIS first and second planning processes, which aim to provide individuals with disabilities with greater control over their support and services. Despite these considerations, the court found that Mr TQX did require a guardianship order due to his significant cognitive impairments and the absence of a family member or advocate to act on his behalf.

The court determined that a guardianship order was necessary for Mr TQX to ensure he received appropriate care and support. The Public Guardian was appointed as Mr TQX's guardian, given their expertise in handling such cases and the absence of any other suitable candidates. The court made a continuing guardianship order for a period of 18 months, with the guardian having limited powers to consent to health care, medical and dental services for Mr TQX. The order was intended to provide Mr TQX with the necessary support while safeguarding his interests and ensuring he received appropriate care and services.

Orders

Orders of the court

1. A guardianship order is made for Mr TQX.

2. The Public Guardian is appointed as the guardian.

3. This is a continuing guardianship order for a period of 18 months from the date of this order.

4. This is a limited guardianship order giving the guardian custody of Mr TQX to the extent necessary to carry out health care, medical and dental consent and services functions.

Background

Background to the litigation

Full text does not contain this section.

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:	TQX [2016] NSWCATGD 56
Hearing dates:	4 November 2016
Date of orders:	04 November 2016
Decision date:	04 November 2016
Jurisdiction:	Guardianship Division
Before:	J Moir, Senior Member (Legal) Dr C West, Senior Member (Professional) L Porter, General Member (Community)
Decision:	1. A guardianship order is made for Mr TQX. 2. The Public Guardian is appointed as the guardian. 3. This is a continuing guardianship order for a period of 18 months from the date of this order. 4. This is a limited guardianship order giving the guardian custody of Mr TQX to the extent necessary to carry out health care, medical and dental consent and services functions.
Catchwords:	GUARDIANSHIP – application for guardianship order – National Disability Insurance Scheme – need for an order – no family or advocate – access to NDIS – nominee provisions – NDIS first and second planning processes – transfer of Ageing, Disability and Home Care ADHC accommodation service to non-government sector – Public Guardian appointed
Legislation Cited:	National Disability Insurance Scheme Act 2013 (Cth), s 18; Parts 2 and Part 5 Guardianship Act 1987 (NSW), ss 3(1), 3(2), 4, 14, 14(2), 15(3) National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth), rule 2.1 National Disability Insurance Scheme (Nominees) Rules 2013 (Cth)
Cases Cited:	IF v IG [2004] NSWADTAP 3 KCG [2014] NSWCATGD 7
Texts Cited:	NDIS Operational Guideline – Gateway – Making an access request
Category:	Principal judgment
Parties:	Mr TQX (subject person) Ms UMQ (applicant) The NSW Public Guardian
File Number(s):	39661
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)).