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

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

AND

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

Background

3. 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.

4. 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 over-ride objections to medical treatment, because at times when unwell she would refuse treatment. This was the statutory end-of-term review of the guardianship order.

5. Additionally, the Tribunal also had an application from Dr FAJ and Dr NBU who had both filed an application seeking consent for special medical treatment for Ms UBE. Dr FAJ is a Gynaecological Registrar at a public hospital and Dr NBU is the treating Clinical Geneticist for Ms UBE, also from the same public hospital. They were both seeking consent for proposed laparoscopic tubal ligation under general anaesthetic, which is a sterilisation procedure. Ms UBE is in a long-term relationship which may become a sexual relationship. That application came before the Tribunal on 10 December 2014. During that hearing it was submitted that Ms UBE has the capacity to provide her own consent to the procedure. The hearing was adjourned to enable the opportunity for further evidence to be provided in respect of Ms UBE’s capacity.

6. This was the adjourned hearing of the application for consent to the special medical treatment and also the review of the guardianship order.

The hearing

7. At the end of these Reasons for Decision are lists of the parties to the review and witnesses who attended the hearing. [Appendix removed for publication.]

What must be proved?

8. The questions which have to be decided by the Tribunal are:

Guardianship

• Is Ms UBE someone for whom the Tribunal could make an order because she continues to have a disability which prevents her from being able to make important life decisions?

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

• Who should be the guardian?

• How long should the order last?

Application for Consent to Special Medical treatment

9. If a person is incapable of giving informed consent to special medical treatment then only the Tribunal can provide consent.

10. Before the Tribunal can consent to this type of special treatment for Ms UBE, it must be satisfied:

1. Ms UBE is incapable of giving consent to the proposed special treatment; and

2. The proposed special treatment is the most appropriate form of treatment for promoting and maintaining Ms UBE 's health and well-being; and

3. The treatment is necessary to save Ms UBE 's life; or

4. The treatment is necessary to prevent serious damage to Ms UBE’s health.

SPECIAL MEDICAL TREATMENT

11. Dr NBU and Dr FAJ were seeking consent for a medical procedure, being tubal ligation under general anaesthetic. Tubal ligation is a sterilisation procedure.

12. Part 5 of the Guardianship Act 1987 (NSW) (the Act) deals with medical and dental treatment. Section 33 contains definitions. “Special treatment” is defined as any treatment that is intended, or is reasonably likely to have the effect of rendering permanently infertile the person on whom it is carried out. Regulation 9(b) of the Guardianship Regulations 2010 (NSW) provides that for the purposes of paragraph (c) of the definition of “special treatment” in section 33(1) of the Act “any treatment in the nature of tubal occlusion” is declared to be special treatment. It was undisputed that the proposed procedure is special medical treatment within the meaning of the Act.

13. Section 33(2) provides that for the purposes of Part 5 a person is incapable of giving consent to the carrying out of medical treatment if the person is :

1. incapable of understanding the general nature and effect of the proposed treatment, or

2. incapable of indicating whether or not he or she consents, or does not consent to the proposed treatment being carried out.

14. Section 45(1) provides the Tribunal must not give consent to the carrying out of medical or dental treatment on a patient to whom this Part applies unless the Tribunal is satisfied that the treatment is the most appropriate form of treatment for promoting and maintaining the patient's health and well-being. In relation to special medical treatment s 45(2) of the Act provides that the Tribunal must not give consent to the carrying out of special treatment unless it is satisfied that the treatment is necessary to save the patient's life or to prevent serious damage to the patient's health.

15. Section 44 of the Act further provides that if consent is to be given to medical or dental treatment, the Tribunal must be satisfied that it is "appropriate for the treatment to be carried out". The Tribunal must have regard to the views of the patient, the person who is proposing that medical treatment be carried out on the patient, any persons responsible for the patient, the matters referred to in the application as required by s 42(2) of the Act and also the objects of Part 5.

16. The objects of Part 5 are as follows:

1. to ensure that people are not deprived of necessary medical or dental treatment merely because they lack the capacity to consent to the carrying out of such treatment, and

2. to ensure that any medical or dental treatment that is carried out on such people is carried out for the purpose of promoting and maintaining their health and well-being.

17. Recent decisions of the former Guardianship Tribunal being XTV [2012] NSWGT5 (6 February 2012) and PYR [2012] NSWGT 30 (23 November 2012) have referred to the leading authority of P&P [1994] HCA20 (1994) 181 CLR 583. In that matter the High Court noted the "particularly stringent conditions" under the Act in relation to the Tribunal providing consent to treatment involving sterilisation.

18. Therefore firstly, before the Tribunal can consent to (or refuse) this type of special treatment for Ms UBE, it must be satisfied Ms UBE is incapable of giving consent to the proposed special treatment. Ms UBE is a person who at the time this application was filed was the subject of a guardianship order. At the hearing on 10 December Ms UBE herself, both applicants, Ms TZE, the mother and guardian of Ms UBE, and the Separate Representative indicated that they agreed that tubal ligation was the preferred treatment option for Ms UBE.

19. In relation to Ms UBE’s understanding of the proposed treatment, Ms TZE told the Tribunal that Dr Z, a staff specialist in Endocrinology at the public hospital had discussed all the treatment options for contraception with Ms UBE at length. Ms TZE said that Dr Z was satisfied that Ms UBE understood the proposed treatment. She said that Dr Z knows Ms UBE very well, as she has treated her for many years. She said that she "pitched" the explanation at the right level for Ms UBE to understand. She said that Ms UBE came to her own decision in relation to the treatment options for contraception. Dr Z was said by Ms TZE to have been in agreement with Ms UBE’s preference for tubal ligation.

20. Subsequently, Ms UBE was scheduled for surgery for the tubal ligation and attended hospital for the proposed procedure. Due to surgical delays at the hospital, the surgery ultimately did not proceed as planned on that day. Subsequently, an advocate from a disability advocacy group raised her concerns about the issue of consent to special medical treatment, which led to the filing of these applications.

21. The Tribunal had written reports from treating practitioners. Dr Z wrote a report detailing her discussions with Ms UBE about the procedure. Dr Z is a Staff Specialist in Endocrinology at the public hospital. She reported that she reviewed Ms UBE in the context of her entering into a long-term relationship. Ms UBE did not want to get pregnant. She wrote that given her age, she is at high risk for genetic abnormalities in the foetus and also difficulties managing her Arginase Deficiency and potential complications of her disorder during pregnancy. She reports that they had discussions about different contraception options available to Ms UBE, including condoms, contraceptive pills, Depo-Provera, Mirena, tubal ligation, and partner's vasectomy. Ms UBE was clear that her preference was to have a tubal ligation. She thought that that would have the least impact on her overall and would guarantee long-term contraception. It would not be reliant upon her remembering to take her medication such as the pill and there would be no potential adverse effect of using long-term Depo-Progesterone which would include reduction in bone density and potential mood changes. She noted that a vasectomy for her partner would not guarantee long-term contraception if she subsequently developed a relationship with another partner. It was considered that tubal ligation was probably the easiest option and while it would involve a general anaesthetic, she had not previously had problems with general anaesthetic and, with planning, it should not have any major impact on her Arginase Deficiency.

22. The Tribunal also had two reports from Dr NBU, the treating Clinical Geneticist from the public hospital. He reported that Ms UBE has been an ongoing patient of the Adult Genetic Metabolic Service at the public hospital. He reported that Ms UBE has Arginase Deficiency, an extremely rare disorder of protein metabolism that results in high levels of ammonia in the blood. This is a lifelong disorder which was diagnosed in infancy. Arginase is part of the urea cycle which takes ammonia from the blood and coverts it to urea which is non-toxic and subsequently excreted in the urine. Ammonia is toxic to the brain and during times of metabolic crisis, Ms UBE will have confusion and a decreased ability to make rational decisions. This process may worsen leading to higher blood ammonia levels and consequently decreased consciousness, coma and death. Treatment of her condition is centred upon taking a low protein diet as well as medication to detoxify ammonia. The diet is complex and requires regular supervision. He wrote that Ms UBE has had reasonably regular metabolic crisis requiring admission to hospital for intravenous therapy. He wrote that Arginase Deficiency has resulted in many episodes of elevated ammonia of which has impacted negatively upon her residential cognitive function. She has been left with intellectual impairment as a consequence.

23. In his written report, Dr NBU wrote that Ms UBE’s level of cognitive functioning is such that she does understand the reasons and consequences of the tubal ligation. He wrote that she was requesting the procedure. He reported that when her metabolic condition is under good control, her level of cognitive function is such that she is able to hold a reasonable conversation. He writes that poor diet management will increase the risk of elevated ammonia levels and consequently impact upon her ability to make lucid, reasonable and independent decisions about her care. He writes that pregnancy would have a poor outcome for a number of reasons. She would be at risk of life threatening elevated ammonia levels should she be pregnant. There is a well-documented risk of hyperammonemia in women with urea cycle disorders who fall pregnant. She also has a seizure disorder for which she has been on prescribed anti-epileptic medication. She is more likely to have a seizure at periods of metabolic decompensation.

24. Dr NBU noted that the oral contraceptive pill is not appropriate, because Ms UBE may be unreliable with taking the pill. Long-term Depo-Progesterone has risks of reduced bone density which is particularly important for Ms UBE as she is on a strict low protein diet exacerbating this risk significantly and potential mood changes which would likely worsen her dietary control. He noted that the insertion of a Mirena IUD would be an option. It is noted that Dr FAJ gave evidence that the Mirena device would likely require replacement twice and there was a small (5-10%) risk of failure in the first three months. At the previous hearing on 10 December 2014, Dr NBU's oral evidence was initially not consistent with his reported views of Ms UBE’s understanding of the procedure. He then qualified this by acknowledging that an assessment of capacity to consent to the treatment was outside his area of expertise.

25. Ms UBE and Ms TZE claimed that Ms UBE was capable of understanding the general nature and effect of the proposed treatment and giving consent to the proposed treatment. It was the primary submission of the separate representative that Ms UBE had the capacity to consent to the treatment. At the last guardianship review the Tribunal had made findings in respect of Ms UBE’s capacity. There was no evidence of any recent assessment of Ms UBE’s capacity before the Tribunal. The evidence of Dr NBU on this issue was inconsistent, but he then acknowledged he was not appropriately qualified to make such an assessment. In the circumstance the Tribunal adjourned the hearing to enable the opportunity to provide an up to date assessment of Ms UBE’s capacity to provide consent to the proposed treatment.

26. At this hearing, the Tribunal was provided with a recent assessment addressing this issue. Dr Y, Consultant Psychiatrist, provided a report dated 10 April 2015. Dr Y reported that Ms UBE had requested an assessment of her capacity to make a decision about tubal ligation as a form of contraception. He noted she has a mild intellectual disability related to her condition of Arginase Deficiency which renders her unable to metabolise high protein meals. He also noted that when exposed to such meals she can become extremely ill and it can become life threatening and that when her condition is unstable it affects her cognition via a precipitating delirium. When controlled and not causing a state of delirium, it will not have an ongoing effect on her baseline level of cognition and capacity.

27. Dr Y reports that at the time he assessed Ms UBE, her condition was stable. He writes that she was able to describe the nature of her condition, the dietary restrictions as well as possible effects of breaching those restrictions on her health. Ms UBE advised him that she wanted to become sexually active and she wanted a form of contraception to prevent herself from becoming pregnant, as her condition is extremely hereditable and any child would likely have the same condition. She was able to discuss the reasoning for this which he details in his report. He goes on to note that she has had a detailed discussion with her Endocrinologist, Dr Z, about the different forms of contraception that may be available to her. He noted that she chose to have tubal ligation as the preferred method of contraception due to the highest rate of success and permanence. The trigger for the discussions around contraception was that she had entered into a new relationship over the past 18 months. He discussed with her the potential risk of failure and the consequence of this which he details in his report. He also discussed with Ms UBE the procedure itself and what was entailed. She was able to identify that the risks associated with a general anaesthetic and the procedure itself. She did not recall the risk of infection but was able to consider that information. He reported that she has no symptoms of other conditions such as a depressive illness, psychosis or anxiety disorder and there was no evidence of any other organic impairment. It was Dr Y's opinion that her intellectual disability was not such that she did not have the capacity to understand the proposed treatment.

28. Ms TZE told the Tribunal why Ms UBE was referred to Dr Y. She said that she made enquiries at the public hospital and Dr FAJ nominated Mr X, a Neuropsychologist at the Hospital. He was unable to see Ms UBE due to very lengthy waiting lists and the time frame in which the assessment was required.

29. In relation to this issue Dr FAJ told the Tribunal that Ms TZE had contacted her to enquire about appropriately qualified practitioners at the public hospital who might be able to undertake an assessment of Ms UBE’s capacity. She said that she made enquiries and Mr X who is a Neuropsychologist at the public hospital was suggested. He was considered to be an appropriate person to undertake the assessment; however his waiting list was too long. He advised her that he would make enquiries about an alternate appropriately qualified practitioner who could undertake the assessment at an earlier time. He came back to her and recommended Dr Y as being an appropriately practitioner to undertake the assessment.

30. In respect of the procedure itself, Dr FAJ told the Tribunal that if the surgery was to proceed, then Ms UBE would be required to make an appointment and come into the clinic for a consultation. At that time, the proposed surgery and associated risks would be discussed. She would then be put on the list for surgery. The discussion would involve explaining the surgery, the steps involved, the type of anaesthetic, the risks of the procedure, and likely postoperative care. Alternative forms of procedure available would also be discussed along with the risks and the benefits of the treatment. Dr FAJ told the Tribunal that because of Ms UBE’s dietary requirements and the special considerations surrounding the health consequences of her fasting, it was likely that her own consultant would perform the surgery, although this had yet to be confirmed. This would be confirmed when Ms UBE came back to the clinic.

17. It was the submission of the Separate Representative, Ms Danis, that Ms UBE has the capacity to give consent to the treatment. She noted Ms UBE can have a variable capacity at times. In particular if she is unwell, she has diminished capacity and may reject offers of treatment. It was submitted that when well, she has a much clearer understanding of treatment. In summary, it was Ms Danis’s primary submission that Ms UBE has an understanding of the proposed special medical treatment and was able to consent to the treatment.

18. The Tribunal has heard evidence as to why Dr Y was chosen to undertake the assessment of Ms UBE’s capacity. There is no evidence to indicate that Dr Y is not appropriately qualified to provide an assessment of Ms UBE’s capacity. It is undisputed that Ms UBE has a history of variable capacity, which is related to her physical health and this was acknowledged by Dr Y. There is no recent probative assessment of her capacity which challenges the opinions expressed by Dr Y. His evidence of Ms UBE’s understanding of the proposed procedure, was not inconsistent with the anecdotal evidence before the Tribunal and the report by Dr Z of her discussions with Ms UBE. Dr NBU is a Clinical Geneticist and acknowledged he could not make such an assessment as it was outside his area of expertise.

19. In MMW [2014] NSWCATGD 34, the Tribunal considered an application for a hysterectomy with ovarian conservation in respect of a woman with an intellectual disability. In that matter the Tribunal refused to consent to the treatment, because it was satisfied on the available evidence that the subject person, who had an intellectual disability, was capable of giving her own consent to the treatment.

20. In the circumstances of this application, the Tribunal had evidence before us from an appropriately qualified practitioner that when well, Ms UBE was capable of understanding the general nature and effect of the proposed treatment and was also capable of indicating whether or not she consented to the treatment. The Tribunal determined that we could not provide consent for the treatment, as we were unable to find on the available evidence that when physically well, she was incapable of giving consent to the proposed special medical treatment. The application was therefore dismissed.

GUARDIANSHIP REVIEW

Is Ms UBE someone for whom the Tribunal could make a further order because she continues to have a disability which prevents her from being able to make important life decisions?

35. Section 14 of the Act provides that the Tribunal may make a guardianship order for a person if it is satisfied that he/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" (s 3(1) of the Act). 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; 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 (s 3(2) of the Act).

36. When the previous order was made, the Tribunal found that Ms UBE had a disability and was unable to make important life decisions. There was new evidence before the Tribunal which addressed the issue of capacity from Dr Y referred to above. His report specifically addressed her capacity to consent to tubal ligation, however it can be considered in the context of her capacity more generally.

37. In relation to decisions about major lifestyle matters, Ms TZE told the Tribunal that she and Ms UBE discuss these matters together. They have had discussions surrounding Ms UBE’s accommodation. She said in this regard she provides support and guidance and information to assist Ms UBE. Ms UBE agreed with this.

38. Ms TZE told the Tribunal that it was her view that Ms UBE’s ability to make decisions is affected by her medical condition and in particular, when she has too much protein. When this occurs, she becomes ill and her cognition deteriorates. When her physical improves, so does her cognition. She said in this regard, her capacity can be a little unpredictable. She said that in summary Ms UBE’s inability to metabolise protein affects her cognition and when this happens, she also becomes frightened and cannot be relied upon to make decisions in her best interests. She said it is only in those circumstances that she would doubt Ms UBE’s capacity. She told the Tribunal that in the last five years she may have had hospital admissions once or twice a year. In the last couple of years, she has only had one or two admissions. She told the Tribunal that Ms UBE’s condition and her management of the condition was becoming increasingly stable. The evidence given by Ms TZE about her own observations and the evidence of Ms UBE herself was consistent with what was reported in the medical evidence.

39. The evidence indicates that Ms UBE has a mild intellectual disability complicated by a physical condition which affects her cognition resulting in a variable capacity. In recent years she has experienced a greater stability in her physical health, resulting in a lessening of periods when she is acutely unwell. In turn this has meant Ms UBE has also experienced more stable cognition. She is well supported by her mother Ms TZE who provides her with information and support.

40. The totality of the available indicates that Ms UBE can become acutely physically unwell as a result of her Arginese Deficiency. When this occurs she experiences not only declining physical health, but also a corresponding decline in her cognition. The evidence indicates that at these times, she can be at least partially incapable of managing her person. She is someone for whom the Tribunal could make an order.

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

41. The Tribunal then went on to consider whether the Tribunal should make a guardianship order. Ms UBE was able to provide her views to the Tribunal. She did not think that she continued to require a guardian, because she could make her own decisions when well and when unwell, her mother Ms TZE could assist her, or make decisions on her behalf if required.

42. Ms TZE told the Tribunal that she was appointed as guardian with the authority to make decisions about medical and dental treatment and had been provided with the authority to override objections to medical treatment. She said that it had been a very long time since she had been required to override Ms UBE’s objections to treatment. She said that the last time this had occurred was in 2007. She told the Tribunal that Ms UBE still needs support and guidance when unwell, however now, even when she is unwell, she is complaint with treatment.

43. The Tribunal was told by Ms TZE that when Ms UBE becomes unwell there are warning signs. At the group home there is a house protocol that if she shows any signs of deterioration in her physical health, an ambulance is called and she is taken straight to the public hospital. This is done without waiting to see if it is a false alarm, so as to avoid risk to Ms UBE. She is well known at the public hospital, including in the Emergency Department where staff are all aware of her condition.

44. The Tribunal has previously conferred a restrictive practices function upon the guardian in relation to access to food. The Tribunal was told by Ms TZE that on occasion Ms UBE lacks discipline to say no to certain foods. She said that Ms UBE needs someone to support and monitor what she eats, but is very knowledgeable about her dietary restrictions. Her weight is reasonably stable and she maintains a good weight. Ms UBE agreed and told the Tribunal that she just needed somebody to remind and explain to her why she should not eat certain foods. The Tribunal was also told by Ms TZE that Ms UBE can have small treats in limited amounts, which is acceptable. The risk is when she over-eats certain food and the issue is one of impulse control. Ms UBE indicated again that if she is told by carers that particular foods are not healthy or not good for her, then she does not get upset. They both told the Tribunal that there was no need for a guardian to make decisions about restrictive practices.

45. In summary, Ms TZE, Ms UBE, and Ms Nihal Danis, the appointed Separate Representative, told the Tribunal that there was no need for the appointment of a guardian to make any decisions at times when Ms UBE becomes unwell and has a deterioration in her cognitive capacity.

Are there decisions which need to be made by a guardian?

46. When considering whether to make a guardianship order the Tribunal must have regard to the principles of the Act set out in s 4 of the Act. The principles specify that:

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.

47. The Tribunal must also consider the criteria set out in s 14(2) of the Act when considering whether to make a guardianship order. The criteria in s 14(2) are informed by the principles identified in s 4.

48. The Tribunal considered the views of Ms UBE and that she did not think that she needed a guardian, as she could make her own decisions when well and could be supported by her mother if she could not. Her mother/carer did not support the making of an order. Section 14(2) also requires the Tribunal to consider the views of the spouse which was not applicable in this instance. The Tribunal must also consider the importance of preserving the persons existing family relationships however there was no evidence to suggest that there would be any effect upon Ms UBE’s family relationships whether or not an order was made. There was no evidence of any cultural and linguistic environments.

49. The Tribunal must also consider the practicability of services being provided to the person without the need for an order. The Tribunal was satisfied that if required Ms TZE may be the "person responsible" for Ms UBE under the Act and may give a valid consent for any major or minor medical or dental treatment that she may require.

50. The Tribunal accepted that Ms UBE has experienced more stable physical health in recent years. When well she is well supported by her mother with whom she consults and takes advice in respect of any major decisions. She is also well supported by a stable team of health care practitioners including specialist staff at the public hospital and medical staff in the Hospital Emergency Department. She has also become more compliant when unwell, so that there is no longer a need to over-ride objections to medical treatment when she is acutely unwell. The Tribunal accepted the evidence of Ms TZE and Ms UBE that decisions could be made and services provided without the need for an order. In the circumstances the Tribunal accepted the evidence and submissions and found that there was no need for the appointment of a guardian.

51. Having decided the order should be allowed to lapse, on the basis that the Tribunal should not make a further guardianship order for Ms UBE, there was no need to address the other questions set out above.

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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: 16 May 2017