UIO

[2016] NSWCATGD 5

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	UIO [2016] NSWCATGD 5
Hearing dates:	11 February 2016
Date of orders:	11 February 2016
Decision date:	11 February 2016
Jurisdiction:	Guardianship Division
Before:	B Hughes, Senior Member (Legal) S Stone, Senior Member (Professional) L Stewart, General Member (Community)
Decision:	Application for guardianship dismissed.
Catchwords:	GUARDIANSHIP – application for a guardianship order – where subject person is in custody and due for release – urgent application – application of section 14 of the Guardianship Act 1987 (NSW) – ‘person in need of a guardian’ – change in cognitive ability due to medications – application dismissed
Legislation Cited:	Guardianship Act 1987 (NSW), ss 3(1), 3(2), and 14
Category:	Principal judgment
Parties:	Mrs UIO (the subject person) Ms CMT (the substitute applicant) Mr IBE (spouse) The NSW Public Guardian
Representation:	Nil
File Number(s):	61752
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

GUARDIANSHIP APPLICATION

What the Tribunal decided

1. The Tribunal dismissed the application for guardianship brought by Ms SVF in relation to Mrs UIO.

Background

2. Mrs UIO is a 46-year old woman of Vietnamese heritage who at the time of the application and hearing was completing a custodial sentence at a correctional centre in Sydney. She was due to be released from custody on 14 February 2016.

3. Mrs UIO has a spouse, Mr IBE, who lives at West Sydney.

4. The original applicant, Ms SVF, is a Nursing Unit Manager with Justice Health. The application for the appointment of a guardian was lodged at the Tribunal on 2 February 2016.

5. The matter was listed on an urgent basis due to Mrs UIO’s imminent release from custody. Ms CMT, a Nursing Unit Manager with Justice Health, became the substitute applicant.

The hearing

6. At the end of these Reasons for Decision are lists of the parties to the application and the witnesses who attended the hearing. A Vietnamese interpreter participated in the hearing by telephone. [Appendix removed for publication.]

Does the applicant have standing to bring the application?

7. A person has standing to bring an application if he/she is:

1. The person who will be placed under guardianship;

2. The Public Guardian; or

3. Any other person who, in the opinion of the Tribunal, has a genuine concern for the welfare of the person.

8. The Tribunal found that Ms CMT has standing to make the application for a guardianship order. The Tribunal found that Ms CMT had a genuine concern for the welfare of Mrs UIO. This was not disputed by any of the parties.

What did the Tribunal have to decide?

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

• Is Mrs UIO someone for whom the Tribunal could make an order because she has a disability which prevents her 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 Mrs UIO someone for whom the Tribunal could make an order because she has a disability which prevents her from being able to make important life decisions?

10. 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” (s 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 (s 3(2), Guardianship Act).

11. The Tribunal received a health professional report from Dr Z, psychiatry registrar, dated 18 January 2016. Dr Z reported that he had known Mrs UIO for a period of two weeks and had seen her twice in this period. He reported that Mrs UIO had AIDS-related dementia/cognitive impairment as well as a moderately severe AIDS-related psychosis. He noted in his reported that Mrs UIO’s capacity to make decisions about her accommodation, care, services, and financial affairs required further assessment. He said that Mrs UIO’s ability to make decisions about her health and medical care was impaired due to her limited understanding of her illness and her need for treatment. Dr Z said that Mrs UIO has frontal lobe deficits and believed that she no longer has HIV and did not require medication. The treating team were concerned that Mrs UIO may develop resistance to HIV treatment as a result of non-compliance.

12. The original applicant wrote that Mrs UIO has a diagnosis of HIV-related dementia that resulted in poor comprehension and significant cognitive impairment. Ms SVF reported that Mrs UIO no longer believed that she had HIV and is at times non-compliant with treatment. She is about to be released from custody with limited social support, no confirmed accommodation, and is non-committal about plans to follow up with medical treatment for her HIV condition and her mental illness. This is said to be further complicated by Mrs UIO’s history of substance abuse.

13. The presentation of Mrs UIO in the hearing significantly contrasted with the medical reports before the Tribunal. She was articulate, speaking in English and Vietnamese, and appeared to have a good understanding of her conditions.

14. Mrs UIO told the Tribunal that she had been unwell and had failed to take her prescribed medications. Over the last month she had started taking her medications again and felt much improved. She said that she felt capable of making decisions. Mrs UIO said that for a period of approximately six months she had ceased medications, and now she has restabilised on her treatment, she feels able to make decisions. She explained that some medication was for depression and some to treat her HIV condition.

15. Mrs UIO told the Tribunal that her intention upon release was to return to her marital home and live again with her husband. She explained that her husband worked long hours and was unable to answer the telephone calls from the Tribunal when it tried to contact him. He has reportedly recently lost his mobile telephone, however Mrs UIO said that she has contact with him and has no concerns about her ability to return to her home.

16. Mrs UIO said that in the community she had been under the care of specialist HIV medical practitioners and had taken her medications as prescribed. She said that when she was gaoled she stopped taking her medication, as she was not sure why she was on it. Now she has an understanding of both her HIV and mental health conditions and is keen to engage with medical and health care practitioners upon discharge. Mrs UIO said that upon release she would live at her home at West Sydney and attend to a public hospital in southwest Sydney to see her medical team. She was able to tell the Tribunal what medication she took and appeared to understand its purpose.

17. Ms CMT said that she understood that the application had been lodged as Justice Health, Probation and Parole and Welfare Officers had been unable to come up with a satisfactory discharge plan when Mrs UIO was presenting as extremely impaired the previous month. She is now compliant with medications, appears to have insight into the need for medication, and has given the Tribunal her plan for life after discharge.

18. A representative from the Office of the Public Guardian participated in the hearing. He noted that Mrs UIO had provided the Tribunal with plausible and cogent answers to the questions she was asked. It appears that now she has been appropriately medicated her cognition has improved. The Public Guardian representative said that in his view the evidence supported a finding that Mrs UIO is able to make the important lifestyle decisions, and that her disability has now been treated to the extent that she is not a person for whom the Tribunal could make an order.

19. The Tribunal concurred with this opinion. Mrs UIO gave a reasonable and rational response to the Tribunal about why she had recommenced on her medications. She appeared to understand their purpose and her need for treatment. She gave proper answers in respect of her accommodation following release from custody and also reasons for her husband’s unavailability to participate or to have contact with people who are concerned for her welfare.

20. The Tribunal considered that on the evidence before it, Mrs UIO is not a person for whom the Tribunal could make a guardianship order. The Tribunal considered that her presentation was consistent with a finding that her disability, when treated as it now is, does not impair her ability to make the important life decisions.

21. Accordingly, the Tribunal decided that Mrs UIO is not a person for whom the Tribunal could make a guardianship order and the application should be dismissed.

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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: 12 July 2016