XJ v Public Guardian & Ors

Appeal Panel - External

CITATION:	XJ v Public Guardian & Ors [2006] NSWADTAP 49
PARTIES:	APPELLANT XJ FIRST RESPONDENT Public Guardian SECOND RESPONDENT XK THIRD RESPONDENT XL FOURTH RESPONDENT XM FIFTH RESPONDENT XN DECISION MAKER Guardianship Tribunal
FILE NUMBER:	068010
HEARING DATES:	8/09/2006
SUBMISSIONS CLOSED:	09/08/2006
DATE OF DECISION:	09/20/2006
BEFORE:	Hennessy N - Magistrate (Deputy President); Leal S - Judicial Member; Bolt M - Non Judicial Member
CATCHWORDS:	Guardianship order - review - No evidence - Opportunity to be heard - Opportunity to respond to adverse evidence - Statutory interpretation
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	C/19986
DATE OF DECISION UNDER APPEAL:	05/10/2006
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Guardianship Act 1987
CASES CITED:	R v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13 IF v IG & Ors [2004] NSWADTAP 3
REPRESENTATION:	APPELLANT In person FIRST RESPONDENT In person SECOND RESPONDENT A Moen, barrister THIRD RESPONDENT No appearance FOURTH RESPONDENT No appearance FIFTH RESPONDENT In person DECISION MAKER E Cho, legal officer
ORDERS:	1. Order 5(a) of the Guardianship Tribunal’s Limited Guardianship Order dated 10 May 2006 is set aside; In substitution for that order the following order is made; Health care; To determine what health care, apart from major and minor medical and dental treatment, XK may receive; 2. The Guardianship Tribunal’s order Confirming a Guardianship Order dated 10 May 2006 is set aside. In substitution for that order the following order is made; The Tribunal varies its order of 7 December 2004. The variation is that Order 5(a) is deleted and the following words are substituted; Health Care; To determine what health care, apart from major and minor medical and dental treatment XK may receive; 2. Leave to extend the appeal to the merits of the Guardianship Tribunal’s decision refused

Introduction

1 XK is a 48 year old woman who lives with her elderly parents and one of her brothers. She has an intellectual disability and has been diagnosed with schizophrenia. In 2001 the wife of another brother, who we will refer to as the sister-in-law, applied to the Guardianship Tribunal for a guardianship order in relation to XK. The Guardianship Tribunal made a limited guardianship order appointing the Public Guardian as XK’s guardian. Twelve months later, the Guardianship Tribunal renewed that order for a period of two years. The Public Guardian was given the functions of determining “what health care and major and minor medical and dental treatment” XK was to receive and “to make decisions on her behalf concerning major services to which she should have access.”

2 In July 2005 the sister-in-law requested a review of the guardianship order. Two of the sister-in-law’s concerns are that XK has not been correctly diagnosed and that XK’s psychiatrist, Dr Hansen, is not prescribing appropriate medication for XK’s psychiatric condition. She is no longer in a relationship with XK’s brother and neither he, nor his family, want to have anything to do with her.

3 In May 2006 the Tribunal…