UBE - [2015] NSWCATGD 57

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: UBE [2015] NSWCATGD 57
Hearing dates: 11 May 2015
Date of orders: 11 May 2015
Decision date: 11 May 2015
Jurisdiction: Guardianship Division
Before: J Conley, Senior Member (Legal)
Dr C West, Senior Member (Professional)
L Manns, General Member (Community)
Decision:
Guardianship
1. The guardianship order concerning Miss UBE made on 30 August 2010 is to lapse.

2. The guardianship order is revoked for any remaining period of the order.
Special Medical Treatment
1. The application for consent to special medical treatment made by Dr NBU and Dr FAJ in respect of Miss UBE is dismissed.
Catchwords:
GUARDIANSHIP – review of guardianship order – previous finding of incapacity – variations in capacity – no need for appointment of a guardian– whether affairs can be managed with informal support – guardianship order not renewed
SPECIAL MEDICAL TREATMENT – application for consent to special medical treatment – laparoscopic tubal ligation – 42-year-old woman – mild intellectual disability – whether the person is ‘incapable of giving consent to the carrying out of medical or dental treatment’ – section 34(1)(b) of the Guardianship Act 1987 (NSW) – whether the person ‘is incapable of understanding the general nature and effect of the proposed treatment’ – section 33(2)(a) of the Guardianship Act 1987 (NSW) – variations in capacity – presumption of capacity – application dismissed
Legislation Cited: Guardianship Act 1987 (NSW), ss 3(1), 3(2), 4, 14, 14(2), 33, 33(1), 33(2), 42(2), 44, 45(1), 45(2), pt 5
Guardianship Regulations 2010 (NSW), reg 9(b)
Cases Cited: MMW [2014] NSWCATGD 34
P&P [1994] HCA20 (1994) 181 CLR 583
PYR [2012] NSWGT 30 (23 November 2012)
XTV [2012] NSWGT5 (6 February 2012)
Category: Principal judgment
Parties: Ms UBE (the person under guardianship)
Ms TZE (guardian of Ms UBE)
Dr FAJ and Dr NBU (applicants)
Representation: Separate Representation:
N Danis (person under guardianship)

File Number(s): 29461
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

The Tribunal reviewed the previous guardianship order concerning Ms UBE made on 30 August 2010 and decided the order should lapse.

AND

The Tribunal dismissed the application for consent to special medical treatment.

Background

Ms UBE is a 42-year-old woman who resides in a group home in southwest Sydney, managed by a disability service provider. Ms UBE has intellectual disability associated with the metabolic disorder Arginase Deficiency. She also has a seizure disorder and cerebral palsy.
On 30 August 2010, the Tribunal reviewed the previous guardianship order for Ms UBE and appointed her mother Ms TZE as her guardian. The guardian was appointed for a period of five years, with authority to make decisions on her behalf in relation to accommodation, health care, medical and dental consents, and restrictive practices. The guardian was also given the authority to…

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 UBE

Details

AGLC: UBE [2015] NSWCATGD 57
Case: [2015] NSWCATGD 57
Decision Date: 11 May 2015

CaseChat Overview and Summary

In the matter of Miss UBE, the court was tasked with reviewing a guardianship order and deciding on an application for consent to special medical treatment. The court was required to determine whether the previous finding of incapacity should be upheld, whether there was a need for a guardian, and if the woman’s affairs could be managed with informal support. Additionally, the court had to assess whether Miss UBE was incapable of giving consent for a laparoscopic tubal ligation due to her mild intellectual disability.

The legal issues the court had to address included whether Miss UBE was incapable of giving consent to the proposed medical treatment, specifically under sections 34(1)(b) and 33(2)(a) of the Guardianship Act 1987 (NSW). The court considered whether the presumption of capacity should apply and if there were variations in her capacity that warranted a different outcome from the previous findings. The court also examined whether the appointment of a guardian was necessary, given that her affairs could potentially be managed with informal support.

The court found that there was no need for the appointment of a guardian as Miss UBE’s affairs could be managed with informal support. Consequently, the guardianship order made in 2010 was not renewed, and the order was revoked for any remaining period. Regarding the application for consent to special medical treatment, the court dismissed the application, concluding that Miss UBE was not incapable of understanding the general nature and effect of the proposed treatment. The court relied on the presumption of capacity and found that there were no substantial grounds to conclude that she lacked the capacity to give consent.

The final orders of the court were that the guardianship order concerning Miss UBE made on 30 August 2010 would lapse and be revoked for any remaining period. Furthermore, the application for consent to special medical treatment made by Dr NBU and Dr FAJ in respect of Miss UBE was dismissed.

Orders

Orders of the court

Guardianship

1. The guardianship order concerning Miss UBE made on 30 August 2010 is to lapse.

2. The guardianship order is revoked for any remaining period of the order.

Special Medical Treatment

1. The application for consent to special medical treatment made by Dr NBU and Dr FAJ in respect of Miss UBE is dismissed.

Background

Background to the litigation

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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:	UBE [2015] NSWCATGD 57
Hearing dates:	11 May 2015
Date of orders:	11 May 2015
Decision date:	11 May 2015
Jurisdiction:	Guardianship Division
Before:	J Conley, Senior Member (Legal) Dr C West, Senior Member (Professional) L Manns, General Member (Community)
Decision:	Guardianship 1. The guardianship order concerning Miss UBE made on 30 August 2010 is to lapse. 2. The guardianship order is revoked for any remaining period of the order. Special Medical Treatment 1. The application for consent to special medical treatment made by Dr NBU and Dr FAJ in respect of Miss UBE is dismissed.
Catchwords:	GUARDIANSHIP – review of guardianship order – previous finding of incapacity – variations in capacity – no need for appointment of a guardian– whether affairs can be managed with informal support – guardianship order not renewed SPECIAL MEDICAL TREATMENT – application for consent to special medical treatment – laparoscopic tubal ligation – 42-year-old woman – mild intellectual disability – whether the person is ‘incapable of giving consent to the carrying out of medical or dental treatment’ – section 34(1)(b) of the Guardianship Act 1987 (NSW) – whether the person ‘is incapable of understanding the general nature and effect of the proposed treatment’ – section 33(2)(a) of the Guardianship Act 1987 (NSW) – variations in capacity – presumption of capacity – application dismissed
Legislation Cited:	Guardianship Act 1987 (NSW), ss 3(1), 3(2), 4, 14, 14(2), 33, 33(1), 33(2), 42(2), 44, 45(1), 45(2), pt 5 Guardianship Regulations 2010 (NSW), reg 9(b)
Cases Cited:	MMW [2014] NSWCATGD 34 P&P [1994] HCA20 (1994) 181 CLR 583 PYR [2012] NSWGT 30 (23 November 2012) XTV [2012] NSWGT5 (6 February 2012)
Category:	Principal judgment
Parties:	Ms UBE (the person under guardianship) Ms TZE (guardian of Ms UBE) Dr FAJ and Dr NBU (applicants)
Representation:	Separate Representation: N Danis (person under guardianship)
File Number(s):	29461
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)).