TZO

[2019] NSWCATGD 18

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	TZO [2019] NSWCATGD 18
Hearing dates:	25 October 2019
Date of orders:	25 October 2019
Decision date:	25 October 2019
Jurisdiction:	Guardianship Division
Before:	A D Suthers, Principal Member Dr C M West, Senior Member (Professional) J L Newman, General Member (Community)
Decision:	Today’s hearing is adjourned to 1 November 2019 at 3:30pm.
Catchwords:	INTERLOCUTORY – application for a guardianship order – applicant seeks hearing without notice to the subject person – whether the risk to the subject person from being given notice outweighs the importance of them being given notice of the hearing – where subject person is at risk of disengaging with medical services – where subject person is in the late stages of pregnancy – welfare and interests of the subject person require that they be given notice of the hearing – hearing adjourned.
Legislation Cited:	s 37 of the Guardianship Act 1987 (NSW)
Cases Cited:	Nil
Texts Cited:	Nil
Category:	Procedural and other rulings
Parties:	TZO (the person) The Hospital (applicant) The Public Guardian
Representation:	Nil
File Number(s):	NCAT 2019/00331795
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

What the Tribunal decided

1. The Tribunal adjourned the hearing to 3:30pm on 1 November 2019.

2. The Tribunal notes that it is not part-heard.

Background

3. TZO is a 42-year-old woman, who is currently 35 weeks pregnant.

4. An application has been made on behalf of the Hospital where TZO has been receiving some treatment in her pregnancy (“the Hospital”), seeking the appointment of a guardian for her.

5. In the application, and the material which was filed in support of it, the applicant indicated a concern about TZO’s well-being if she was given notice of the guardianship hearing. It was suggested that there was a risk that she may disengage from receiving ongoing antenatal treatment and that her welfare and interests and that of her baby would thereby be put at risk.

6. TZO is said to have an intellectual disability along with diagnoses of personality disorder with borderline traits, generalised anxiety disorder and substance-induced psychotic disorder. She is presently living in crisis accommodation.

7. The Tribunal decided to conduct a preliminary hearing without notice to TZO, to decide whether it would be appropriate to proceed in the absence of notice to her and, if so, to conduct the hearing. The Tribunal therefore conducted the preliminary hearing today and, prior to the hearing, appointed a separate representative for TZO. Ms J appeared as separate representative, although she had not had the opportunity to discuss the matter with TZO for the reasons outlined above.

8. At the hearing we heard from Ms N from the organisation which is providing crisis accommodation and support to TZO; Dr I from the obstetrician and gynaecology team at the hospital where she is receiving treatment; Dr C, a resident obstetrician and gynaecologist from that team; and Dr Z, a registrar.

9. They all expressed the view that the Tribunal should proceed to conduct a hearing today in the absence of TZO. They cited concerns about her previous disengagement from services, noting that she only acknowledged publicly the fact that she was pregnant when she had reached about 25 weeks of her pregnancy and that she has been difficult to engage with in the meantime, in terms of her antenatal care.

10. Their evidence was that, more recently, TZO has been somewhat more compliant and willing to engage with the treating team on a voluntary basis although she is only attending once weekly rather than the recommended twice weekly appointments. That more recent engagement, however, was acknowledged by the treating team as being an improvement over the earlier situation.

11. We also received evidence that the Department of Communities and Justice is involved in relation to TZO’s pregnancy and that they have had an involvement in relation to her older child who now lives with his father, from whom TZO is estranged.

12. The treating medical team are particularly concerned because TZO has high blood pressure which could quickly escalate with little warning and lead to pre-eclampsia and other complications. Ms N was concerned about the likelihood that TZO may disengage from services and medical support if she is given notice of the hearing, saying that in the past TZO has suggested that she would “jump on a cruise ship and go” and self-harm if her baby was removed. She felt that TZO is particularly vulnerable and unstable.

13. Dr I indicated her concerns about the potential for escalation and disengagement by TZO are exacerbated by the fact that the Department of Communities and Justice is engaging with TZO about the care her child will receive after it is born and she feels that TZO may think that things are beginning to unravel for her.

14. We discussed with the participants at the hearing the potential for the Tribunal, if it did not proceed today, to hold an urgent hearing if TZO did disengage from services and medical treatment including, if necessary, on an after-hours basis.

15. Dr C was concerned that even that possibility may be unsuitable to meet TZO’s need for urgent medical treatment if her high blood pressure worsens suddenly, and proposed that the Tribunal proceed notwithstanding the ability for treating medical practitioners to assist TZO without consent if she reached a stage where they were satisfied that it was necessary to do so to save her life or prevent serious damage to her health, in accordance with s 37 of the Guardianship Act 1987 (NSW).

16. We then heard from Ms J, the separate representative, and the officer from the Public Guardian. They both felt that it would be more appropriate for the Tribunal to give TZO notice of the hearing before conducting it.

17. Ms J referred to the evidence indicating that TZO has been more engaged with treating medical practitioners in recent weeks, even though it may not be to the extent recommended. She pointed out that TZO has recently given consent to two major medical procedures, being a tubal ligation and Caesarean section and that hospital staff had been satisfied as to her ability to do so. Ms J felt those issues were indicative of TZO being someone who could participate in a hearing and submitted that it is most appropriate that the hearing be conducted in such a way that TZO has an opportunity to respond to the evidence presented in relation to the proposed order.

18. Acknowledging the risks outlined by the treating medical team and people who support TZO, both Ms J and the officer from the Public Guardian submitted that it would be most appropriate for the hearing to proceed next week on notice to TZO.

19. Weighing the risk to TZO against her prima facie right to have notice of the hearing and an ability to participate in it, we were not satisfied that we should proceed today.

20. TZO is said to have a fear of hospitals due to prior admissions to mental health facilities in her native country. It is apparent that she is in some ways distrustful of authority.

21. We were satisfied that proceeding to consider making an order today without notice to her would, if an order was made, simply exacerbate that concern and had as much potential to do harm to TZO as to promote her welfare and interests.

22. Clearly, if we proceeded to make any order today that was going to have any effect, given that TZO would not know of it and in all likelihood not approve of it, the order would have to have significant and potentially oppressive functions such as giving a guardian the ability to make accommodation decisions and ask others to bring those decisions to effect, as well as, potentially, overriding her objections to medical treatment.

23. For TZO to have those decisions made without her consent by someone appointed without her knowledge was, in our view, unlikely to be beneficial to her welfare and interests, even balancing the risks to which she is subject.

24. The Tribunal can arrange a hearing next Friday and we adjourned the matter to that time. Ms N indicated that she would assist TZO by serving the application on her at a time when she was appropriately supported and when the process could be explained to her.

25. We considered whether it was necessary for an interpreter to be present for TZO and out of an abundance of caution we have asked the Tribunal to arrange an interpreter. However, the evidence we received was that she has not had an interpreter in her recent medical case planning, including the discussions in which she gave consent to significant medical treatment. Those doctors were satisfied that she could deal with such complex issues in the absence of an interpreter and it may be that the Tribunal can proceed without an interpreter on the next hearing but that will be a matter for that Tribunal should it arise.

26. We specifically restricted the evidence we received and our considerations at the outset of the hearing to the question of whether we should proceed without notice to TZO. Having decided that we should not, we are satisfied that we are not part-heard.

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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: 14 November 2019