WYP

[2014] NSWCATGD 45

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	WYP [2014] NSWCATGD 45
Hearing dates:	7 March 2014
Date of orders:	07 March 2014
Decision date:	07 March 2014
Jurisdiction:	Guardianship Division
Before:	Conley J, Senior Member (Legal) Wortley J, Senior Member (Professional) Manga R, General Member (Community)
Decision:	Temporary guardianship order made for 30 days appointing the Public Guardian with authority to make decisions on accommodation, healthcare, medical and dental consents, and to override objections to treatment.
Catchwords:	GUARDIANSHIP – application for guardianship order - cognitive impairment from severe weight loss – urgent hearing – temporary order made.
Legislation Cited:	Guardianship Act 1987 (NSW) Mental Health Act 2007 (NSW)
Category:	Principal judgment
Parties:	Ms WYP (subject person) Ms KCI (applicant for guardianship and financial management) Dr LDC (applicant for consent for medical treatment) NSW Trustee and Guardian The Public Guardian
File Number(s):	55768
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 made a temporary order appointing the Public Guardian as Ms WYP's guardian for a period of 30 days to make decisions on her behalf about her accommodation including for the purpose of hospitalisation with full powers to authorise others to implement any decisions, health care, medical and dental consents and restrictive practices. The guardian was given the authority to over-ride objections to medical treatment.

AND

2. The Tribunal dismissed an application for consent to medical treatment.

AND

3. The Tribunal adjourned an application for the appointment of a financial manager for a period of approximately one month.

Background

4. Ms WYP is a 24-year old woman originally from Thailand. At the time of the hearing she was a patient in a public hospital. She was reported to have cognitive impairment resulting from severe weight loss. She was refusing treatment and wanted to leave hospital.

5. Ms WYP grew up in Australia and travels between Australia and Thailand living in both countries. She has a four year old son who lives with Ms WYP’s grand-mother in Thailand whom she supports financially. She has a mother who lives in Australia. In Sydney she lives alone and works as a sex worker in a brothel and has a history of methamphetamine use.

6. The Tribunal had before it an application seeking consent to medical treatment. The applicant was Dr LDC a Resident Doctor in the Gastroenterology Department at a public hospital. The Tribunal also had an application seeking the appointment of both a guardian and a financial manager. The applicant for these matters was Ms KCI, a Social Worker at the same public hospital.

The Hearing

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

What did the Tribunal have to decide?

GUARDIANSHIP

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

• Is Ms WYP 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 Ms WYP 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;

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. At the time of the hearing Ms WYP was a patient in a public hospital. Dr Z, Staff Specialist in Psychiatry, told the Tribunal that Ms WYP had not been eating and weighed 31 kilograms on the day of the hearing which he said was a weight from approximately 29 kilograms. She had just been found to have a blocked artery to the bowel. The ischaemia of the bowel was a major reason why she had been unable to eat for a long time and why she had lost so much weight. He said that initially the weight loss was thought to be attributable to her use of methamphetamines. He said that once methamphetamine use ceases a person usually becomes very hungry, however this had not occurred with Ms WYP. They had only just discovered the blocked artery which was the major cause of the weight loss.

11. He went on to tell the Tribunal that Ms WYP’s ability to make decisions about complex matters was very impaired. He said that this was because very severe weight loss causes the brain to shrink and results in rigid thinking. In relation to Ms WYP, he said that she was unable to appreciate other views. While she was oriented and had recall, her judgement was very impaired, her thinking was very constricted and lacked flexibility. He said that she was not able to fully understand the impact of her medical condition. She was also not able to comprehend the risk factors associated with the decisions she was making.

12. Dr LDC, the Resident doctor from the Gastroenterology Department, told the Tribunal that there were three main reasons for the weight loss. The effects of taking methamphetamines, the effects of the artery obstruction in the bowel which caused pain when eating and the secondary anorexia because the bowel had shrunk because it had not been accepting food. Dr LDC told the Tribunal that Ms WYP’s needed to remain in hospital. She said that the main risk to Ms WYP at this time was a significant risk of cardiac failure. There were also risks associated with re-feeding, which if not monitored can cause sudden death. If Ms WYP was not able to eat, then her malnutrition would become worse.

13. Ms WYP spoke to the Tribunal. She said that she was able to make decisions herself. Despite the complexities of her medical conditions she denied that she needed any medical treatment. She repeatedly told the Tribunal that she did not want any medical treatment and that she ‘could feed herself.’

14. The Tribunal was satisfied that Ms WYP had cognitive impairment resulting from significant weight loss and lacked insight into the risks of her condition and the need for medical treatment. The Tribunal was satisfied that Ms WYP has a disability which prevents her from 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?

15. Dr Y, Gastroenterologist told the Tribunal that there was a need to keep Ms WYP in hospital in order to give her nutrition. She said that this may need to go on for several weeks until she is considered to be strong enough to have surgery for her bowel condition. She said that Ms WYP has lost a lot of weight but was stable. They had only just discovered the occlusion of the bowel artery. She said the treatment of the obstruction required major surgery and Ms WYP needed to be in good physical condition for the proposed surgery. At the moment she was in physically poor condition and therefore she needed to be fed in a supervised hospital environment to gain weight.

16. Dr Z reiterated that Ms WYP has a limited capacity to take in food. The treating team were very concerned that she would not be able to eat sufficiently herself if she was discharged from hospital.

17. Dr LDC told the Tribunal that there would likely be a need to make decisions about the use of restrictive practices in the form of soft restraints. The soft restraints would be used to prevent Ms WYP pulling out the feeding tubes.

18. The Tribunal contacted the Public Guardian and spoke to the Duty Guardian. The Duty Guardian sought the authority to over-ride objections to medical treatment.

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

19. This hearing had been listed at very short notice due to the perceived risk to Ms WYP. The Tribunal heard evidence from the treating medical team that Ms WYP was opposed to treatment. She was at grave risk from not eating and also faced risk of death from re-feeding, if she were able to eat and did so in an unsupervised environment.

20. The Tribunal must have regard to section 14(2) of the Guardianship Act when considering whether to make a guardianship order. The Tribunal is required to consider the views of Ms WYP. Section 14(2) of the Act also requires the Tribunal to consider the views of the spouse, the carers. The Tribunal must consider the importance of preserving the person’s existing family relationships, the importance of preserving cultural and linguistic environments. The Tribunal must also consider the practicability of services being provided without an order.

21. Ms WYP was opposed to the appointment of a guardian. Due to the urgency of this matter the hearing was convened very quickly. The Tribunal attempted to contact Ms WYP’s mother at the time of the hearing by telephone, but was unable to do so. In relation to the issue of preserving a linguistic and cultural environment the Tribunal notes that Ms WYP does split her time living between Australia and Thailand. It was reported that her son lives in Thailand cared for by Ms WYP’s grand-mother.

22. The evidence indicated that Ms WYP has no insight into her circumstances or the need for urgent medical treatment. Because of her significant weight loss she is at risk of cardiac failure. She is at risk of death from further weight loss and also from re-feeding but is opposed to medical treatment and is opposed to remaining in hospital. The Tribunal determined that it was not possible for decisions to be made informally without the making of an order.

23. The Tribunal determined in this matter that the risks to Ms WYP were significant as she was at very real risk of death if no order were made and she refused medical treatment and discharged herself from hospital. The Tribunal therefore determined that it would be appropriate to make a temporary order appointing a guardian. The order could then be reviewed within a short period of time. The Tribunal decided on the basis of all of this evidence that a guardianship order should be made.

What decision making functions should be included in the order?

24. For the reasons identified above, the following decision making areas need to be provided for in the order, accommodation including for the purposes of hospitalisation with authority to authorise others to implement such decisions, medical and dental treatment and health care. The Public Guardian sought the authority to over-ride objections to medical treatment. The Tribunal determined that it was necessary to confer this authority because of Ms WYP’s resistance to treatment.

Who should be the guardian?

25. As the Tribunal made a temporary guardianship order, the Tribunal is required to appoint the Public Guardian pursuant to section 17(4) of the Guardianship Act.

How long should the order last?

26. The Tribunal decided to make an order for 30 days as it was a temporary order.

FINANCIAL MANAGEMENT

27. The hearing had been scheduled at very short notice due to the perceived risk to Ms WYP. The Tribunal was told that little was known about Ms WYP’s finances but there was no suggestion she was at risk or would otherwise be disadvantaged if the hearing were to be adjourned for a short period.

28. The Tribunal therefore adjourned the hearing for approximately for one month to coincide with the review of the guardianship order. The Tribunal notes however that if there is any risk to Ms WYP, then a request can be made to the Registrar to re-list the matter earlier.

MEDICAL CONSENT

29. The Tribunal also had an application for medical consent. In respect of the guardianship application the Tribunal appointed the Public Guardian to make decisions about medical and dental consents with the authority to over-ride objections to medical treatment. It was therefore commonly agreed by the treating team and the Duty Guardian that it would be more appropriate to seek consent directly from the Public Guardian. The Tribunal therefore dismissed this part of the application.

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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