UEU

[2014] NSWCATGD 46

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	UEU [2014] NSWCATGD 46
Hearing dates:	15 December 2014
Date of orders:	15 December 2014
Decision date:	15 December 2014
Jurisdiction:	Guardianship Division
Before:	Hughes B, Senior Member (Legal)
Decision:	Guardianship order renewed for three months - the Public Guardian was appointed with function of medical and dental consent.
Catchwords:	GUARDIANSHIP – end of term review of guardianship order - failure to obtain consent to major medication – offence under the Guardianship Act – need for appointment of a guardian.
Legislation Cited:	Guardianship Act 1987(NSW) Mental Health Act 2007 (NSW)
Category:	Principal judgment
Parties:	Miss UEU (subject person) The Public Guardian
File Number(s):	39377
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 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 for Miss UEU and renewed it for a period of three months and varied it as follows: The Public Guardian was appointed as guardian with authority to make decisions for her about her medical and dental treatment.

Background

2. Miss UEU is an 88-year old woman with dementia and a history of leg ulcers. Miss UEU’s family reportedly do not wish to be involved in her life. Miss UEU is a resident at an aged care facility in Southern Sydney, having previously resided at an aged care facility at Eastern Sydney.

3. Miss UEU’s financial affairs have been managed by the NSW Trustee and Guardian since they were appointed by the Tribunal in 2008.

4. On 12 December 2013 the Tribunal appointed the Public Guardian as the guardian for Miss UEU for a period of 12 months with the functions of health care, medical and dental consent.

5. This matter is the end of term, statutory review of the guardianship order.

The hearing

6. 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 did Tribunal have to decide?

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

• Is Miss UEU 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?

Is Miss UEU 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?

8. Section 14 of the Guardianship Act 1987(NSW) (‘the Guardianship 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” (section 3(1), Guardianship 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 (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 (section 3(2), Guardianship Act).

9. When the previous order was made, the Tribunal found that Miss UEU had a disability being dementia and was unable to make important life decisions. There is no new evidence before the Tribunal in relation to this issue.

10. The Tribunal is satisfied that Miss UEU continues to have a disability which prevents her making important life decisions. She is a person for whom the Tribunal could make a further guardianship order.

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

11. Miss UEU was unable to participate in the hearing or talk to the Tribunal to present her views because of her cognitive impairment.

12. The Public Guardian provided a report to the Tribunal dated 25 November 2014 and a representative from the Office of the Public Guardian, who is also the author of the report, participated in the hearing. The representative from the Public Guardian’s office told the Tribunal that she had visited Miss UEU at the aged care facility in Southern Sydney and was satisfied that Miss UEU is well placed. Miss UEU receives fantastic care at the facility and responds well to the staff and support services that are available.

13. The representative from the Public Guardian’s office told the Tribunal that the Public Guardian was aware that Miss UEU is receiving a major medication, Risperidone, which contributes to a reduction in Miss UEU’s agitation - thus promoting her overall health and well-being. Miss UEU is not receiving this medication as a patient under the Mental Health Act 2007 (NSW). The Public Guardian has not been contacted to provide substitute consent for this major medical treatment, despite discussing the role of the guardian in this regard and leaving a copy of the Public Guardian’s application form for consent at the facility in January 2014 for the attention of the “in house” General Practitioner, Dr Z. Miss UEU continued to receive Risperidone under the auspices of Dr Y who visited the facility almost daily following the departure of Dr Z. The Public Guardian was not contacted by Dr Y to provide consent.

14. The representative from the Public Guardian’s office told the Tribunal that as the Public Guardian has not been asked to provide consent to the major medical treatment that is being carried out there is no further need for a guardianship order. The representative from the Public Guardian’s office said that in considering whether or not to make a guardianship order in respect of the person, the Tribunal must have regard to the practicability of services being provided to the person without the need for an order (section 14(2)(d), Guardianship Act. The Tribunal considered that medical treatment is not a service within the meaning of the legislation and that Part 5 of the Act specifically provides a framework for medical and dental treatment for persons under the protection of the Guardianship Act.

15. Section 35(1) of the Guardianship Act provides a maximum penalty of imprisonment for one year or 10 penalty units or both for carrying out medical or dental treatment on a patient unless consent for the treatment has been given in accordance with or authorised by Part 5 of the Act or in accordance with a Supreme Court order.

16. Section 36 provides that consent to the carrying out of medical or dental treatment may only be provided by a person responsible (in the case of Miss UEU there is no person responsible), the guardian in accordance with a medical and dental treatment function (in this case, the Public Guardian), or by the Tribunal as a “one-off” consent (no application has been received by the Tribunal for consent to medical treatment in this matter). Treatment may be carried out without consent on an urgent basis. It cannot be said that the administration of Risperidone for in excess of a twelve-month period could be construed as urgent treatment required to save a patient’s life or to prevent serious damage to the patient’s health or to prevent the patient from suffering or continuing to suffer significant pain or distress.

17. The Tribunal asked to speak to Miss UEU’s current treating General Practitioner at the facility, Dr X, during the course of the hearing but was advised that he was unavailable. The Tribunal was able to speak with Ms W, the Clinical Care Coordinator, who said that she and the treating doctors at the facility were of the view that if a patient suffered from dementia they were incapable of providing their own consent and consent was not required to treat them with medication such as Risperidone which is commonly used in such conditions. Ms W told the Tribunal that Miss UEU is not the only resident at the aged care facility in Southern Sydney being treated with Risperidone in the absence of a valid consent.

18. The Tribunal considered that without the consent of a guardian, person responsible or the Tribunal, the facility is illegally carrying out major medical treatment upon a patient. In the circumstances the Tribunal decided to make a further guardianship order for a period of three months. The only function to be attached to the order is that of medical and dental treatment. The Tribunal asked that a copy of an application form to the Tribunal to provide medical consent be sent to the facility, marked to the attention of the Clinical Care Coordinator and to Miss UEU’s current treating general practitioner. The Tribunal decided that in the meantime Miss UEU needs the protection of a guardianship order so that medical consent can be sought from the appointed guardian. It would be unfortunate if Miss UEU were deprived of treatment in the interim. The Tribunal has also asked that copies of these reasons for decision be provided to the Clinical Care Coordinator and Miss UEU’s General Practitioner.

19. There is no private person available to be appointed as guardian, therefore, the Tribunal decided to appoint the Public Guardian.

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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: 26 February 2015