UVT

[2015] NSWCATGD 39

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	UVT [2015] NSWCATGD 39
Hearing dates:	4 June 2015
Date of orders:	04 June 2015
Decision date:	04 June 2015
Jurisdiction:	Guardianship Division
Before:	S McCarthy, Senior Member (Legal) D Barker, Senior Member (Professional) D Crowley, General Member (Community)
Decision:	Guardianship order made for six months; public guardian appointed with functions of accommodation and services; private guardian appointed with functions of health care and medical and dental consents.  Application for financial management order adjourned for three months.
Catchwords:	GUARDIANSHIP – where person is a long-term inpatient in a mental health unit – application for guardianship order made by hospital social worker - complex physical and mental health needs – concerns about inadequate care and support from family and in the community – disagreement between family and the treating team about what is in the best interests of the person – s 17 of the Guardianship Act and interaction with s 4 principles – public guardian appointed to make decisions about accommodation and services
Legislation Cited:	Guardianship Act 1987 (NSW) Mental Health Act 2007 (NSW)
Cases Cited:	C S and M Y v the Guardianship Tribunal and the Public Guardian (unreported) NSW Supreme Court, Windeyer J, 29 November 1999
Category:	Principal judgment
Parties:	Ms UVT (the subject person) Ms DPD (the applicant) The Public Guardian
Representation:	Nil
File Number(s):	58996
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 appointed the Public Guardian as Ms UVT's guardian for a period of six months to make decisions on her behalf about her accommodation and services. The Tribunal appointed Mr BLU as Ms UVT's guardian for a period of six months with the decision-making functions of health care and medical and dental consents.

2. The Tribunal adjourned the application for financial management concerning Ms UVT for a period of three months to a date to be fixed by the Registrar.

Background

3. Ms UVT is aged 42 years of Vietnamese background who has been a patient in the Mental Health Unit at a public hospital since 17 December 2013. Previously Ms UVT resided with her aunt, Mrs DVN, in Southwest Sydney. Ms UVT's family includes her brothers and sister.

4. Ms DPD, Social Worker at a public hospital, lodged an application for guardianship and financial management concerning Ms UVT.

The Hearing

5. At the end of these Reasons for Decision are lists of the parties to the application and witnesses who attended the hearing. [appendix removed from publication]

6. The hearing was conducted by videoconference and telephone from the public hospital.

What did the Tribunal have to decide?

GUARDIANSHIP

7. The questions which had to be decided by the Tribunal in relation to guardianship were:

• Is Ms UVT 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?

8. Is Ms UVT 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?

9. 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;

5. 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).

10. Ms UVT was admitted to the public hospital's Mental Health Unit as an involuntary patient in December 2013. Her hospital status changed to being a voluntary patient on 17 August 2014. Ms UVT has a mental illness diagnosis of schizophrenia.

11. Dr Z, Psychiatry Registrar at the public hospital, stated that Ms UVT shows evidence of a belief system that is not in contact with reality. She has a poor insight into her ongoing situation that puts her at risk and she is vulnerable to exploitation. The doctor is of the view that Ms UVT is not equipped to look after herself without ongoing support and monitoring. She has a long history of a severe and disabling mental health condition with periods of inadequate management and support. Dr Z is of the view that Ms UVT lacks the ability to make decisions about her own welfare. She continues to make a slow progress. The doctor stated that there is a need to facilitate services for Ms UVT involving multiple agencies to offer suitable accommodation options that meet her ongoing needs and ensure adequate monitoring and support.

12. The Psychiatry Registrar at the public hospital, stated that Ms UVT is at risk of self-neglect with further deterioration to her physical and mental health. She needs a further period of rehabilitation before she can be discharged from hospital.

13. The treating team are of the view that Ms UVT has a possible cognitive impairment.

14. The Tribunal is satisfied that Ms UVT has a disability, being a serious mental illness, which prevents her making important life decisions. She is a person for whom the Tribunal could make a guardianship order.

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

The views of Ms UVT

15. Ms UVT stated that she needs help in making decisions. She supports her brother, Mr BLU, being appointed as guardian. She did not oppose the appointment of the Public Guardian as her guardian. Ms UVT said that she would like to return home. Later during the hearing Ms UVT left the hearing room.

16. Ms UVT does not wish to live in a group home.

The views of the treating team at the public hospital

17. Ms DPD stated that Ms UVT needs a guardian to make decisions about her accommodation, health care and her access to services. She is of the view that Ms UVT does not have the capacity to make decisions in these areas of her life and needs a guardian to make decisions regarding her eventual discharge from hospital. She is concerned that Ms UVT is at risk of future homelessness.

18. The treating team are generally of the view that Ms UVT should reside in group home accommodation as she requires 24-hour round the clock care for her high level care needs. Ms UVT has medical conditions including psoriasis. She has been prescribed clozapine for her schizophrenia and has had multiple admissions to mental health units. Her psoriasis has been effectively treated in hospital but when Ms UVT is not a patient in hospital her psoriasis rashes increase in severity. She requires high level supports to live in the community including social inclusion activities, home care and meals on wheels. Ms UVT is currently an inpatient in the long stay rehabilitation unit at the public hospital. She continues to isolate herself but is encouraged to have a set routine and requires prompting for her self-care and hygiene, medication compliance and social skills.

19. The treating team are very concerned that Ms UVT's support needs were not being met in the community while living with her aunt. She had an inadequate level of care and neglect which led to a serious decline in her mental health condition and her psoriasis condition. Ms UVT had poor nutrition which affected her diabetes, poor hygiene which affected her severe psoriasis and poor medication compliance which seriously affected her mental illness.

20. Dr Z stated that Ms UVT does not make eye contact with people, lacks communication skills, engages at a minimum level and experiences anhedonia. She has been on clozapine for a period of 18 months and is beginning to make some recovery now in her mental health condition. She needs a further period of treatment and is not ready for discharge from hospital. Ms UVT is agreeable to remaining in hospital as a voluntary patient and has not tried to leave or refuse her medication. The doctor stated that Ms UVT would benefit from being in hospital for a further number of months to continue to improve in her mental health condition.

21. A Nursing Unit Manager at the public hospital stated that Ms UVT had not taken her medication for a long time before being hospitalised. She presented to hospital with a severe case of neglect. Ms UVT's physical and mental health needs are extremely complex and she cannot be left by herself. She has had very little functional gain over time and will go into a shower to wash fully clothed unless she is prompted and assisted. The Nursing Unit Manager is of the view that Ms UVT is not able to live independently and needs full supervision. He does not consider that Ms UVT should return to live with her family because they have had limited input into her care and she was in such a poor condition when she was admitted to hospital. Ms UVT has had previous failed discharges from hospital. She has day leave with her family.

22. The treating team advised that they have had case conferences with Ms UVT's family on 13 August 2014, 29 October 2014 and 22 February 2015 but her family decided at that time not to take on full responsibility for Ms UVT's care. The team have had difficulty in contacting Ms UVT's family and have sent correspondence to the family requesting their involvement in supporting Ms UVT with little response. The treating team seek a guardianship order to be made for Ms UVT.

The views of Mr BLU, brother, and family

23. Mr BLU said that he wishes to be appointed as Ms UVT's guardian. He said that Ms UVT's family are of the view that a guardian should be appointed for Ms UVT and the guardian should be a member of Ms UVT's family. He said that when Ms UVT is discharged from hospital she should come and live with him and his family in Southwest Sydney. Ms UVT will receive support from family members including his sister to provide care to Ms UVT. He said that the family were the persons who initiated Ms UVT's admission because of her mental health decline.

24. Mr ZMU, brother, supports the appointment of Mr BLU as guardian for Ms UVT. The family are opposed to Ms UVT living in group home accommodation.

25. Ms UVT's family are of the view that Ms UVT should be discharged from hospital and if a family member is appointed as guardian they would be seeking that Ms UVT be now discharged from hospital. Mr BLU said that this would be a collective decision by the family. The view held by Ms UVT's family is that she should no longer be in hospital as she is not making any significant functional gains in hospital. They disagreed with the views of the treating team that Ms UVT should remain in hospital and are of the view that she should be living with Mr Tran and his family. Mr ZMU said that the family have been very busy and at times not able to respond to the hospital requests.

The effect of an order on Ms UVT's family relationships/cultural or linguistic environment.

26. An order may have an effect on Ms UVT's family relationships and her cultural and linguistic environment. Ms UVT is of Vietnamese cultural background.

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

27. The Tribunal decided on the basis of all of this evidence that a guardianship order should be made. Ms UVT has been a patient in the public hospital for around 18 months following an admission for a serious mental illness and a serious decline in her physical condition. Ms UVT was admitted with a severe psoriasis condition together with a serious decline in her mental illness. She has made slow progress in hospital. Ms UVT is receiving significant prompting and assistance from hospital staff for her daily care needs which are extensive. She is unable to deal with her daily care activities and needs prompting and supervision for her nutrition, hygiene and medication management. There are differing views between the treating team and Ms UVT's family as to whether Ms UVT should remain a patient in hospital and where Ms UVT should reside when she is discharged from hospital. Ms UVT's treating health team are of the view that Ms UVT should reside in supported accommodation in a group home. Her family are of the view that Ms UVT should reside with family members. Ms UVT wishes to return to live with her family. As there are differing views held by the treating team and Ms UVT and her family regarding Ms UVT's accommodation and access to services that are not presently able to be resolved there is a need for a guardianship order to be made for Ms UVT. Health care decisions will need to be made for Ms UVT while she is in hospital as a voluntary patient and when she is discharged from hospital. Ms UVT is not able to give informed consent for major medical treatments and medications. Her access to services will be vitally important to ensure a successful discharge from hospital.

What decision-making functions should be included in the order?

28. The following decision-making areas need to be provided for in the order:

29. Accommodation, health care, medical and dental consents and services.

Who should be the guardian?

30. There is a proposal that Mr BLU or the Public Guardian be appointed guardian for Ms UVT. The Tribunal has to be satisfied that any person appointed as a private guardian meets the following requirements in accordance with section 17 of the Guardianship Act. He/she must:

• have a personality generally compatible with the personality of the person under guardianship;

• have no undue conflict of interest (particularly financial) with those of the person; and

• be able and willing to exercise the functions of the order.

31. In deciding whether a person is able to undertake the role of guardian, the Tribunal must consider whether the proposed guardian is able, having regard to the circumstances, to exercise the functions in accordance with the principles set out in section 4 of the Guardianship Act (C S and M Y v the Guardianship Tribunal and the Public Guardian (unreported) NSW Supreme Court, Windeyer J, 29 November 1999).

32. Ms UVT stated that Mr BLU should be her guardian or the Public Guardian. Ms UVT's family are of the view that a family member should be appointed as her guardian and proposed that Mr BLU be appointed as Ms UVT's guardian. The treating health team are generally of the view that the Public Guardian should be appointed as Ms UVT's guardian. Ms DPD noted that the guardian, being either a family member or the Public Guardian, could be appointed based on where Ms UVT is residing.

33. The Tribunal decided to appoint the Public Guardian as the guardian for Ms UVT with the decision-making functions of accommodation and services and Mr BLU as the guardian for Ms UVT with the decision-making functions of health care and medical and dental consents. The Tribunal made these appointments of guardian for Ms UVT with different decision-making functions for the following reasons:

1. There is a significant difference of opinion between Ms UVT's family and the treating team regarding whether Ms UVT should remain in hospital for a further period of time or not and whether she should be discharged into a group home or reside with family members. Mr BLU said that the family have made a collective decision that Ms UVT should be living with the family and they will provide support for Ms UVT's care needs and that she should be now discharged from hospital. The Tribunal is not satisfied that Mr BLU would place sufficient weight upon the treating team's opinion regarding the need for Ms UVT to remain in hospital for a further period of time for her health and personal care. Mr BLU said that the family have a collective view regarding Ms UVT being discharged from hospital but the family have not had significant discussions with the treating team regarding their reasons for Ms UVT needing to remain for a further period of time in hospital. A guardian needs to carefully take into account the views of the treating health professionals for Ms UVT as it is in her best interests to do so. Ms UVT was admitted to hospital in a serious mental and physical state and it is imperative that her discharge is appropriate and there are sufficient services and supports in place for her care needs. Mr BLU has not put a detailed proposal to the treating team regarding discharge options for Ms UVT including the level of services and care available and needed to support Ms UVT in the community. The Tribunal is required to consider the general principles set out in section 4 of the Guardianship Act and that Ms UVT's welfare and interests are given paramount consideration. Further, the Tribunal is required to consider that Ms UVT is to be protected from neglect. The family has not had extensive contact with the treating team and there has been a lack of effective communications regarding Ms UVT's eventual discharge from hospital and her transition plan to returning to live in the community. Ms UVT's previous placement with her aunt was not successful and the Tribunal is required to give paramount consideration to her welfare and needs. The Tribunal decided that the appointment of an independent decision maker to make accommodation and services decisions is in the best interests of Ms UVT for a period of time. In doing so the Tribunal considered the cultural and linguistic environments for Ms UVT and that an independent decision maker could take these factors into account regarding discharge plans and service provision for Ms UVT.

2. The Tribunal decided that it was in the best interests of Ms UVT that a family member be appointed as Ms UVT's decision maker for her health care and medical and dental consents. Mr BLU has not shown any current objections to reasonably necessary medical treatment for Ms UVT. The involvement of a family member in a decision-making role regarding Ms UVT's health care should lead to more effective communication between Ms UVT's family and the treating team taking into account Ms UVT's cultural environment.

How long should the order last?

34. An initial guardianship order can be made for a period of up to one year from the date on which it was made. However, an order of up to three years can be made if the person the subject of the order has permanent disabilities, is unlikely to become capable of managing his or her person and there is the need for an order longer than one year. The Tribunal decided to make an order for six months because decisions concerning Ms UVT's accommodation, health care and services will have been made during this time frame and the need for the order to continue or be varied or lapsed can be reviewed.

FINANCIAL MANAGEMENT

35. The questions which had to be decided by the Tribunal in relation to financial management were:

• Is Ms UVT incapable of managing her affairs?

• Is there a need for another person to manage Ms UVT's affairs and is it in her best interests for a financial management order to be made?

• If so, who should be appointed financial manager?

ADJOURNMENT OF APPLICATION FOR FINANCIAL MANAGEMENT

36. The Tribunal did not have sufficient time to hear and determine the application for financial management concerning Ms UVT. There are no urgent financial decisions to be made for Ms UVT. She has access to her finances. There may be financial decisions to be made regarding the plans for Ms UVT to be discharged from hospital and her accommodation expenses. The Tribunal decided that the application for financial management should be heard prior to the review of the guardianship order. The Tribunal decided to adjourn the hearing of the application for financial management for a period of three months to a date to be fixed by the Registrar.

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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 January 2016