TZN

[2020] NSWCATGD 64

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

TZN [2020] NSWCATGD 64

Hearing dates:

10 July 2020

Date of orders:

10 July 2020

Decision date:

10 July 2020

Jurisdiction:

Guardianship Division

Before:

B L Adamovich, Senior Member (Legal)
E Love, Senior Member (Professional)
R M Fela, General Member (Community)

Decision:

1. A guardianship order is made for TZN.

2. The Public Guardian is appointed as the guardian.

3. This is a continuing guardianship order for a period of two years from 10 July 2020.

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

FUNCTIONS:

5. The guardian has the following functions:

a) Health care

To decide what health care TZN may receive.

b) Medical/Dental consent

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

c) Services

To make decisions about services to be provided to TZN.

d) Restrictive Practices

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

1. Physical restraint

AUTHORITY:

6. The guardian has the following authorities:

a) Authority to override objections to medical treatment

i) The guardian may override the objection of TZN 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 TZN 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 TZN’s behaviour:

(i) as a last resort to prevent TZN harming himself or others; and

(ii) in accordance with a behaviour support plan which has been developed by a behaviour support practitioner after having conducted a functional behavioural assessment upon TZN, and which is reviewed regularly (and no less than every 12 months) and/or reviewed as soon as practicable if there is a change in circumstances which requires the plan to be amended.

Catchwords:

GUARDIANSHIP – application for a guardianship order – restrictive practices function – residential aged care – subject person with traumatic brain injury and background of stroke – aggressive and resistive to care – refusal of medical treatment – refusal to eat – use of physical restraint in aged care – no private guardian available

Legislation Cited:

Guardianship Act 1987 (NSW), ss 3(1)-(2), 4, 14, 14(2) 15(3)

Cases Cited:

IF v IG [2004] NSWADTAP 3

Texts Cited:

Nil

Category:

Principal judgment

Parties:

004: Guardianship Application

TZN (the person)
SAL (applicant)
Public Guardian (proposed guardian)

Representation:

Nil

File Number(s):

NCAT 2016/00392845

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

1. These are the reasons for the decision of the Tribunal as set out above.

2. In all matters before the Tribunal the welfare and interests of the subject person are paramount.

Background

3. TZN is a 72-year-old man who is a permanent resident at an aged care facility. He has lived there since 2016. It is reported that TZN has a brain injury following a fall and the effects of a stroke. No family or friends are reported as regular supports for TZN.

4. On 2 September 2016 the Tribunal made an order appointing the Public Guardian for a period of 12 months with the functions of accommodation, health care, medical and dental treatment and services. On the same date the Tribunal committed the management of TZN’s affairs to the NSW Trustee and Guardian.

5. On 1 September 2017 at a statutory review it was determined that the guardianship order should lapse.

6. On 29 May 2020 the Tribunal received an application for the appointment of a guardian for TZN from SAL, manager at the aged care facility.

The hearing

7. 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.]

8. As the hearing took place during the COVID-19 Pandemic, it was conducted entirely by telephone.

9. TZN was unable to participate in the hearing or provide a view because of his disabilities. He declined to speak with the Tribunal officer preparing this matter.

What did the Tribunal have to decide?

10. The questions which had to be decided by the Tribunal were:

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

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

• Who should be the guardian?

• How long should the order last?

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

11. Section 14 of the Guardianship Act 1987 (NSW) (“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).

12. When the previous guardianship order was reviewed, the Tribunal accepted that because of cognitive and neurological impairment TZN was unable to make important life decisions.

13. We received a discharge summary dated 12 May 2020 from Dr Z, of a public hospital. TZN had been admitted to the public hospital on 27 April 2020 following an unwitnessed fall at the aged care facility with aspiration pneumonia. His admission was complicated by behavioural issues and a groin rash. Dr Y noted that TZN has significant Behavioural and Psychological Symptoms of Dementia (BPSD) on a background of stroke and traumatic brain injury.

14. We accepted that TZN continues to have a disability which prevents him making important life decisions. He is a person for whom the Tribunal could make a guardianship order.

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

15. 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;

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.

16. 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) of the Act. When undertaking this task, the Tribunal may be guided by the principles that are set out in s 4 of the Act (see IF v IG [2004] NSWADTAP 3).

17. As noted above, TZN was unable to participate in the hearing or provide a view to the Tribunal. He has no spouse or care whose views we could consider.

18. SAL told us that TZN has always been aggressive in his behaviours and resistive to care. He has had a further stroke which led to his admission to hospital on 27 April 2020 complicated by pneumonia. Since his return to the aged care facility, his behaviours have escalated, and he is very resistive to care. He now presents with further health issues, particularly in relation to his groin rash. TZN was trialled on psychotropic medications to treat the Behavioural and Psychological Symptoms of Dementia in hospital, however, was not discharged on them. TZN has been prescribed minor medications on discharge which must be taken orally. TZN refuses to take these medications and the public hospital have recommended that these medications be crushed and mixed with custard or ice cream.

19. TZN also requires antibiotic creams to be applied to his groin to treat a serious rash in that area. TZN refuses to allow the cream to be applied and becomes extremely aggressive when staff at the facility prompt him to apply the cream himself. He throws furniture and attacks staff. He now requires four staff members to assist him in washing himself and to apply the cream. Staff have needed to physically restrain TZN to clean him and apply the cream. If this does not occur the groin rash will worsen.

20. SAL told us that TZN’s health is significantly declining and he considers that there is likely to be a need for a guardian to make end of life decisions under a health care function in the near future. He said that a guardian is needed to provide consent to medical and dental treatment, with the authority to override TZN’s objection to treatment.

21. Mr X, Director of Nursing, told us that there is a need for a guardian to have the authority to override TZN’s objection to treatment and to consent to the restrictive practice of physical restraint to enable TZN to be cleaned and to have topical medication applied. Mr X said that TZN’s health care is declining rapidly. He is refusing to eat. Despite this he remains very strong and attacks staff when they attempt to assist him with activities of daily living. Due to his aggression, staff are unable to weigh TZN or to encourage him to take supplements.

22. Mr X said that TZN is being treated palliatively and the aged care facility work with the outreach palliative care team to support TZN as best they can. There is no need for an accommodation function to be attached to an order. He said that he believed that TZN should be reviewed by a psychogeriatrician and a guardian could consent to this through a health care function.

23. There is no behaviour support plan in place, however, Mr X and SAL confirmed that they would be happy to work with the Dementia Behaviour Management Advisory Service to improve TZN’s life and to develop a behaviour support plan with an aim of reducing and eliminating the need for physical restraint to be used. We considered that a services function would be of assistance in this regard.

24. We telephoned Ms W, Duty Guardian, of the Office of the Public Guardian and outlined the evidence we had heard in the hearing. Ms W agreed that there is a need for a guardian to be appointed with the functions of medical and dental treatment, health care, services and restrictive practices specifically in relation to physical restraint. Ms W requested the authority to override TZN’s objection to major and minor medical treatment.

25. We were satisfied that a guardianship order would not impact the preservation of TZN’s family relationships or his cultural and linguistic environment.

26. We were satisfied that a guardianship order should be made with the functions of medical and dental consent, with the authority to override TZN’s objection to major or minor medical treatment, health care, services and restrictive practices, specifically physical restraint in the context of the restrictive practice condition attached to the order.

Who should be the guardian?

27. The Tribunal is not able to appoint the Public Guardian as a person’s guardian if there is a private person who can be appointed: the Act, s 15(3). There is no private person available to be appointed as TZN’s guardian. We therefore appointed the Public Guardian.

How long should the order last?

28. An initial guardianship order can be made for a period of up to one year from the date on which it was made. However an order of up to three years may be made if the person subject to the order has permanent disabilities, is unlikely to become capable of managing their person and it is likely that there will be an ongoing need for decisions to be made by a guardian.

29. We considered that TZN has permanent disabilities and is unlikely to regain the capacity to make important life decisions. There is likely to be an ongoing need for important life decisions to be made by a guardian.

30. Accordingly, we decided to make the order for a period of two years.

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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: 30 August 2021