BYG [2018] NSWCATGD 35

NCAT Guardianship|2018-12-04

Background

BYG is 50 years old and at the time of the hearing she was a patient at the St Joseph's Hospital.
On 30 March 2011, BYG appointed her mother, EBG, as her enduring guardian. EBG accepted the appointment on the same day. The enduring guardianship appointment authorises the enduring guardian to make decisions for BYG about where she lives, the health care she receives, the personal services she receives and to consent to carrying out of medical and dental treatment in accordance with Pt 5 of the Guardianship Act 1987 (NSW). The appointment includes some restrictions on the exercise of the functions in respect of measures aimed at prolonging or sustaining life under certain conditions.
On 21 August 2018, the Tribunal made a guardianship order appointing EBG as BYG's guardian to make decisions for her about her accommodation, health care, medical and dental treatment and authorised the guardian to utilise the assistance of the Ambulance Services of NSW to take BYG to place of accommodation and to keep her at that place. The Tribunal ordered that the guardianship order would not be reviewed upon its expiry because the Tribunal was of the view that there would be no need for the order to be renewed because its specific purpose, being to make decisions about BYG's admission to hospital, would have been fulfilled.
On 11 September 2018, BYG was admitted to St Joseph's Hospital as a voluntary patient.
On 19 November 2018 the Tribunal received an application seeking a review of the order made on 21 August 2018. The application was submitted by Ms SYT, a social worker at St Joseph's Hospital, Auburn, on behalf of St Vincent's Hospital (trading as St Joseph's Hospital).

What did the Tribunal have to decide?

On reviewing a current guardianship order the Tribunal may renew, renew and vary the order or determine that the order is to lapse.
The questions to be considered by the Tribunal are:

Is BYG 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?

The Adjournment

The Reasons for Decision of the Tribunal upon making the guardianship order on 21 August 2018 indicate that on that occasion the Tribunal took into account evidence provided by Ms Z, a clinical nurse consultant, that a guardianship order was sought because BYG, who has Huntington's disease, was to be admitted as a voluntary patient to a gazetted hospital bed under the Mental Health Act 2007 (NSW) for observation and adjustment of her medication. BYG was considered unable to consent to the hospitalisation herself and the hospital would not accept the consent of EBG as BYG's enduring guardian as sufficient for the admission. BYG was not objecting to the admission.
In the application seeking review of the order, Ms SYT states that there is a need to renew the guardianship order because the issues that resulted in the order being made on 21 August 2018 remain current.
During the hearing the personnel from the hospital expressed and remained of the view that NSW Health policy is that the consent of an enduring guardian is insufficient as a basis for admission of a voluntary patient. I was not provided with a copy of that policy.
The Mental Health Act, includes the following provision that constitutes the reason for the application: 1. a person under guardianship may be admitted to a mental health facility as a voluntary patient if the guardian of the person makes a request to an authorised medical officer: s 7.
The Mental Health Act also includes the following provisions 1. "guardian", in relation to the exercise of any function under the Act by the guardian of a person under guardianship means a guardian who is able to exercise that function: s 4 of the Mental Health Act); and 2. "person under guardianship" means a person under guardianship within the meaning of the Guardianship Act, s 4).
The Guardianship Act includes the provisions to the following effect: 1. "guardian" means a person who is, whether under this Act or any other Act or law, a guardian of the person and includes an enduring guardian: s 3; and 2. "person under guardianship means a person who has a guardian within the meaning of this Act: s 3; 3. "person in need of a guardian" means a person who, because of a disability, is totally or partially incapable of managing his or her person: s 3; 4. a person may appoint an enduring guardian: s 6; 5. the appointment of an enduring guardian has effect only during a period in which the appointer is a person in need of a guardian: s 6A; 6. a person appointed as an enduring guardian may apply to the Tribunal for an order declaring that the appointment has effect and if the Tribunal is satisfied that the appointer is person in need of a guardian and has appointed the applicant as an enduring guardian, the Tribunal can make an order declaring that the appointment of the enduring guardian has effect: s 6M.
Part 3 of the Guardianship Act is headed "Guardianship Orders" and makes provision for the making and review of guardianship orders. The definitions section of that part provides that "in this part" (emphasis added) a "guardian" means a person appointed by a guardianship order as the guardian of a person and a "person under guardianship" means a person under a guardianship order: s 7 of the Guardianship Act.
Reading these provisions together, it is my view that the definitions set out in s 7 of the Guardianship Act apply only to Part 3 of that Act, and they are not relevant where an enduring guardian seeks to make a decision authorised under an enduring guardianship appointment.
EBG is appointed as BYG's enduring guardian. It is my view that the legislation provides for the following: 1. where an enduring guardian seeks to exercise guardianship functions, the definitions provided in s 3 of the Guardianship Act of the terms "guardian" and "person under guardianship" apply to those terms as used in the Mental Health Act. 2. applying those definitions, a person who has appointed an enduring guardian and who is a person in need of a guardian could be admitted as a voluntary patient if the enduring guardian with the appropriate decision making functions, makes a request to an authorised medical officer. 3. on this basis, BYG could be admitted to a gazetted hospital bed on the request of EBG.
This view seems to be in accordance with that expounded by the Tribunal in the matter of NVP [2016] NSWCAT GD1.
It is also my view that the Tribunal should not make a guardianship order where there is an enduring guardianship appointment in place unless that enduring guardianship appointment cannot meet the needs of the person under guardianship. I have formed this view for the following reasons: 1. The Guardianship Act requires the Tribunal to have regard to the practicability of services being provided to the person without the need for the making of such an order: s 14(2)(d); 2. Making a guardianship order suspends an enduring guardianship appointment: s 61 of the Guardianship Act. 3. The Tribunal is required to take into account the views of a person with a disability: s 4 of the Guardianship Act. 4. It is my view that a person's views can be reflected in the appointment of an enduring guardian.
I was not satisfied that the available evidence indicated the need to appoint a guardian to request BYG's admission to a gazetted bed.
I proposed adjourning the hearing to provide the applicant with an opportunity to reconsider the application of the NSW Health policy regarding voluntary admission of patients by an enduring guardian and if considered necessary, to make an alternative application. There were no objections to the proposed adjournment
For the reasons outlined above, and taking into account that there was no objection to the proposed adjournment, I adjourned the matter to 21 February 2019.
During the period of the adjournment the order made on 21 August 2018 remains in force because the review has been commenced, but not finalised: s 25(6) of the Guardianship Act.

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 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 05 February 2019

At a glance

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Judgment (5 paragraphs)

Legislation Cited (3)

Cases Cited (1)