TYC

[2018] NSWCATGD 24

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	TYC [2018] NSWCATGD 24
Hearing dates:	27 July 2018
Date of orders:	27 July 2018
Decision date:	27 July 2018
Jurisdiction:	Guardianship Division
Before:	A Britton, Principal Member L Anthony, Senior Member (Professional) S Fogg, General Member (Community)
Decision:	The application for a guardianship order is dismissed after hearing.
Catchwords:	GUARDIANSHIP – application for a guardianship order – reason to make order – possibility for decisions to be made on an informal basis – principle of least restriction – consideration of views of subject person – discretion to make a guardianship order – application dismissed
Legislation Cited:	Civil and Administrative Tribunal Act 2013 (NSW), Cl 5 of Sch 6 Guardianship Act 1987 (NSW), ss 3(1)–(2), 4, 14(1)-(2), 14(2)(a)(ii)
Cases Cited:	P v NSW Trustee and Guardian [2015] NSWSC 579
Texts Cited:	Nil
Category:	Principal judgment
Parties:	005: Guardianship Application   TYC (the person) Ms BIX (applicant) Public Guardian
Representation:	Nil
File Number(s):	NCAT 2009/00475006
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

1. Twenty-six-year-old Ms TYC lives in southwest Sydney, New South Wales. Ms TYC has a mild intellectual disability. She has two infant children. In June 2018, Ms BIX, a support worker with a service provider, made an application to the Guardianship Division of the NSW Civil and Administrative Tribunal (NCAT) seeking a guardianship order in respect of Ms TYC (the Application).

2. In the Application under the heading “Need for a guardian”, Ms BIX wrote:

[Ms TYC] had been diagnosed with an intellectual disability and is currently the primary caregiver of two infants. [Ms TYC] would benefit from the guardianship order to advocate and ascertain her rights within the certain faculties of her life.

3. Since 2009 Ms TYC’s estate has been managed by the NSW Trustee and Guardian.

4. For the reasons that follow, we have decided not to exercise the power to make a guardianship order in respect of Ms TYC.

Can a guardianship order be made?

5. The power to make a guardianship order can only be made if we are satisfied that Ms TYC is a “person in need of a guardian”: s 14(1) of the Guardianship Act 1987 (NSW) (the Act). 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) of the Act. A person with a disability is defined to include a person who is physically and/or psychologically disabled, and/or of advanced age, 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) of the Act.

6. The term “social habilitation” is not defined by the Act. In P v NSW Trustee and Guardian [2015] NSWSC 579, Lindsay J considered its meaning in the context of s 3(2) of the Act, at [303]:

The expression “social habilitation” (in the context of references to “disability”, “restricted”, “major life activities” and the word “requires”) may be taken to refer to a need for services to help a person to be, or become, able to function normally in community with others.

7. Ms TYC has been found by differently constituted Tribunals to be a person in need of a guardian. In 2009, shortly before Ms TYC turned 18 years of age, the (then) Guardianship Tribunal made a guardianship order in respect of Ms TYC. In November 2010, the Tribunal renewed that order for 12 months. On review in November 2011, the Tribunal allowed the order to lapse.

8. The finding that Ms TYC is a person in need of a guardian made by previous Tribunals, is not binding on us. We must be independently satisfied that Ms TYC remains a person who is in need of a guardian.

9. The most recent medical evidence in respect of Ms TYC’s intellectual disability is a report prepared by psychologist Mr Z dated 21 March 2018. After conducting “an adaptive functioning assessment” he concluded:

[Ms TYC is] a complex individual who has experienced significant trauma and disruption throughout early life. The results of the current assessment suggest that [Ms TYC]’s adaptive behaviour functioning is significantly lower than that expected for someone of her age. [Ms TYC]’s intellectual functioning was last reportedly tested when she was in statutory care. Family and Community Services were unable to provide a copy of the assessment report detailing her diagnosis, however, have noted that there records indicate a diagnosis of mild intellectual disability.

Given the importance of adaptive functioning for the diagnosis of an intellectual disability in diagnostic and statistical manual for mental disorders (DSM-V, American Psychiatric Association, 2013), based on observation, previous diagnosis, and the adaptive functioning assessment, in my opinion, [Ms TYC] meets the criteria for a diagnosis of a mild intellectual disability.

10. The fact that Ms TYC has an intellectual disability of itself does not mean that she is a person with a disability for the purpose of the Act. We must also be satisfied that by virtue of having an intellectual disability, she is restricted in one or more major life activities to such an extent that she requires supervision or social habilitation.

11. The available evidence indicates that Ms TYC is better able to function independently in the community now, than when the guardianship order was first made nearly 10 years ago. She currently lives in private rental accommodation, is responsible for all domestic tasks, her own personal care and the care of an infant son. Ms TYC’s other child apparently lives with their father. Ms TYC receives some external support and services, primarily in the form of assistance in decision making and mentoring. A worker with the service provider visits Ms TYC twice a week. In addition, another service provider provides weekly support to assist Ms TYC in her parenting role. While she currently has relatively few restrictions in “major life activities” nonetheless, she requires some support to be able to function within the community. Accordingly, she is a person who has a disability within the meaning of the Act.

12. In addition, we are satisfied that as a result of her disability she is at least partially incapable of managing her person. In reaching that conclusion we note, however, the significant gains Ms TYC has made in recent years. It would appear that she currently much more able to manage her person than when she was first made subject to a guardianship order.

Should a guardianship order be made?

13. In considering whether or not to exercise the power to make a guardianship order, s 14(2) of the Act instructs that we must have regard to:

14 Tribunal may make guardianship orders

…

(a)   the views (if any) of:

(i)    the person, and

(ii)    the person’s spouse, if any, if the relationship between the person and the spouse is close and continuing, and

(iii)    the person, if any, who has care of the person,

(b)    the importance of preserving the person’s existing family relationships,

(c)    the importance of preserving the person’s particular cultural and linguistic environments, and

(d)    the practicability of services being provided to the person without the need for the making of such an order.

14. In addition, in exercising the power to make a guardianship order, we are obliged to observe the statement of general principles listed in s 4 of the Act:

4 General principles

It is the duty of everyone exercising functions under this Act with respect to persons who have disabilities to observe the following principles:

(a)   the welfare and interests of such persons should be given paramount consideration,

(b)    the freedom of decision and freedom of action of such persons should be restricted as little as possible,

(c)    such persons should be encouraged, as far as possible, to live a normal life in the community,

(d)    the views of such persons in relation to the exercise of those functions should be taken into consideration,

(e)    the importance of preserving the family relationships and the cultural and linguistic environments of such persons should be recognised,

(f)    such persons should be encouraged, as far as possible, to be self-reliant in matters relating to their personal, domestic and financial affairs,

(g)    such persons should be protected from neglect, abuse and exploitation,

(h)    the community should be encouraged to apply and promote these principles.

15. See also Cl 5 of Sch 6 to the Civil and Administrative Tribunal Act 2013 (NSW).

The views of Ms TYC

16. In the hearing, Ms TYC expressed the view that she would like a guardian to be appointed to assist her if she was unable to consent to medical treatment because she had lost consciousness on account of being involved in an accident or the like.

17. Ms TYC indicated that she welcomed the assistance provided by Ms BIX in making decisions and would welcome additional assistance. When questioned by us, it became apparent that like many people, Ms TYC did not appreciate the differences between the concepts of supported decision-making and substitute decision-making. It was apparent that in her view she was capable of making decisions of significance with support.

The views of the applicant

18. Ms BIX conceded that she had a limited understanding of the role of a guardian. She said her motivation in making the Application was to ensure that Ms TYC had the maximum support available to assist her to live independently within the community and to continue to parent her children. In her opinion, without significant assistance Ms TYC would struggle to deal with the National Disability Insurance Agency (NDIA). The services provided to Ms TYC by the service provider are funded by the NDIA.

19. Ms BIX stated that a further reason for making the Application was Ms TYC’s history of “disengaging with service providers”. According to Ms BIX, late last year Ms TYC and her then partner disengaged with the other service provider who had been supporting the couple in their parenting role. However, Ms BIX stated that in recent months she had noticed a pleasing change. In her view, with the assistance of the service provider, Ms TYC was now able to identify those people who might be “unsafe”. In Ms BIX’s opinion, this indicated a growing maturity on Ms TYC’s part and indicated a willingness to engage with support and assistance.

The views of any spouse and carer

20. The Act requires that we take into account the views of Ms TYC’s spouse but only if that relationship is “close and continuing”: s 14(2)(a)(ii) of the Act. Until March 2018, Ms TYC had been in a de facto relationship with the father of her children. While she continues to have contact with her former partner, it appears that the relationship is not “close and continuing”. In any event, we have no information about his views about the appropriateness of the proposed guardianship order.

21. There is no person who has the “care of” Ms TYC.

The importance of preserving Ms TYC’s existing family relationships

22. Ms TYC maintains contact with her mother and an aunt or uncle. Apparently her mother played no significant role in Ms TYC’s life at least since she was first made subject to a guardianship order. There is nothing before us to indicate that the making or not making of a guardianship order would affect the preservation of her existing family relationships with her mother, aunt and uncle.

23. In addition, it seems unlikely that the existence or otherwise of a guardianship order would materially impact on her relationship with her children.

The importance of preserving Ms TYC’s cultural and linguistic environments

24. On the available material, we think it unlikely that the existence of a guardianship order would materially affect Ms TYC’s cultural and linguistic environment.

The practicality of services being provided to Ms TYC without the need for the making of such an order

25. As noted Ms TYC currently receives some external services. One of the reasons Ms BIX decided to make the Application was because in her view, Ms TYC needed additional services and this was more likely to be achieved if a guardian was appointed and given a services and an advocacy function.

26. On the available material it is difficult to assess whether as Ms BIX believes, Ms TYC needs additional services. With the support of the service provider, Ms TYC has negotiated with NDIA for the provision of services.

27. A guardian is a substitute decision-maker not a service provider or an advocate for the subject person. Nonetheless, in a practical sense there is often a degree of overlap between these roles. Whether the appointment of a guardian is likely to achieve the objective of Ms TYC receiving additional services is difficult to say.

Findings and conclusions

28. In deciding whether to make, or not to make, a guardianship order, we must take in to account the factors listed in s 14(2) of the Act. These factors together with the statement of principles contained in s 4 of the Act require us to balance a number of competing principles. On the one hand, we must observe the principle that Ms TYC must be protected from neglect, abuse and exploitation. On the other hand, we must have regard to her views and restrict her freedom of decision making and action as little as possible and encourage her, as far as possible, to live a normal life in the community. At all times, Ms TYC’s welfare and interests are the paramount consideration.

29. While there is no guarantee that if a guardian was appointed they would seek additional services for Ms TYC, there is nonetheless strength in Ms BIX’s argument that it is likely Ms TYC will have a better chance of receiving additional services, if a guardianship order was in place. However, it puts it too high to suggest that it is impractical for Ms TYC to receive services without a guardianship order.

30. The available material suggests that with the support of staff of the service provider, Ms TYC is currently making reasoned and rational decisions on her own behalf. Ms TYC’s decision to distance herself from people Ms BIX considers to be unsafe and her commitment to taking steps to improve her ability to care for her son is evidence of a growing maturity and improved decision-making ability. In the future a substitute decision-maker may be needed. However, we are not satisfied that the balance of considerations favour the making of a guardianship order at this point in time. To do so would unnecessarily constrain her freedom of action and decision making and is not currently necessary to protect her from neglect, abuse or exploitation.

31. In reaching that conclusion, we note that it is open to anyone with a genuine concern for Ms TYC, or indeed Ms TYC herself, to make an application in the future for a guardianship order.

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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: 21 December 2018