BZE v NSW Public Guardian

What the Tribunal decided

1. The Tribunal dismissed the guardianship application in respect of Miss DTB on the basis that there was no present need for a guardianship order.
2. The Tribunal consented to the withdrawal of the financial management application in respect of Miss DTB's estate and dismissed that application.

Background concerning Miss DTB

1. Miss DTB is an 18-year old woman who resides with her mother and carer, Ms LTD, at North Sydney.
2. Miss DTB has a moderate intellectual disability due to Down Syndrome.
3. On 21 June 2016, the Tribunal received applications for a guardianship order in respect of Miss DTB and a financial management order in respect of her estate from her mother, Ms LTD.

The hearing

1. At the end of these Reasons for Decision are lists of the parties to the applications and the witnesses who attended the hearing of the applications on 26 July 2016. [Appendix removed for publication.] The hearing was conducted by telephone. Miss DTB attended the hearing briefly by telephone and participated to a very limited extent.
2. The Tribunal did not consider it appropriate in the circumstances of these proceedings to use resolution processes other than those inherently available to it during its informal hearing process. During the hearing the Tribunal endeavored to draw out agreement from the parties in respect of the issues or, otherwise, to narrow those issues.

The legislative framework governing the Tribunal's power

1. It is helpful as an aid to understanding the Tribunal's decision to set out the legislative framework within which it is acting in deciding whether to make a guardianship order or a financial management order.
2. The Tribunal is the Civil and Administrative Tribunal of New South Wales in its Guardianship Division. The Guardianship Division has been assigned the functions of the Tribunal in relation to the Guardianship Act 1987 (NSW) and some other specified Acts.
3. The making of guardianship orders and financial management orders are functions under the Guardianship Act and are governed by the legislative framework set out in that Act.
4. It is the duty of everyone exercising functions under the Guardianship Act, including the Tribunal, but also including appointed guardians, with respect to persons who have disabilities, to observe the following principles set out in ss 4 of the Guardianship Act: 1. the welfare and interests of such persons should be given paramount consideration, 2. the freedom of decision and freedom of action of such persons should be restricted as little as possible, 3. such persons should be encouraged, as far as possible, to live a normal life in the community, 4. the views of such persons in relation to the exercise of those functions should be taken into consideration, 5. the importance of preserving the family relationships and the cultural and linguistic environments of such persons should be recognised, 6. such persons should be encouraged, as far as possible, to be self-reliant in matters relating to their personal, domestic and financial affairs, 7. such persons should be protected from neglect, abuse and exploitation, 8. the community should be encouraged to apply and promote these principles. 1. A similar duty applies to appointed financial managers pursuant to ss 39 of the NSW Trustee and Guardian Act 2009 (NSW).
5. These principles reflect the protective nature of the guardianship jurisdiction (which includes the financial management jurisdiction) but seek to strike a balance between providing necessary protection and promoting empowerment of persons with disabilities, including by intruding no more than is necessary on their rights and liberties. Strictly speaking, the financial management regime under the Guardianship Act, unlike the guardianship regime under that Act, focuses on incapability per se without the requirement to base that incapability on a person's disability. Nevertheless, it will usually be the case that the incapability is so based. In that case, the principles in s 4 are enlivened, including that the welfare and interests of the person are to be given paramount consideration.
6. Section 14 of the Guardianship Act gives the Tribunal power to make a guardianship order. Before considering whether to make such an order the Tribunal must find as a fact that the person is a "person in need of a guardian".
7. The term "a person in need of a guardian" is defined in s 3(1) as "a person who, because of a disability, is totally or partially incapable of managing his or her person." In s 3(2), a "person who has a disability" is defined as a person: 1. who is intellectually, physically, psychologically or sensorily disabled, 2. who is of advanced age, 3. who is a mentally ill person within the meaning of Chapter 3 of the Mental Health Act 1990, or 4. who is otherwise disabled, 5. and who, 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.
8. Section 14 of the Guardianship Act states that: 14 Tribunal may make guardianship orders (1) If, after conducting a hearing into any application made to it for a guardianship order in respect of a person, the Tribunal is satisfied that the person is a person in need of a guardian, it may make a guardianship order in respect of the person. (2) In considering whether or not to make a guardianship order in respect of a person, the Tribunal shall have regard to: (a) the views (if any) of: (i) the person, and (ii) the person's spouse, if any, if the relationship between the person and the spouse is close and continuing, (iii) the person, if any, who has care of the person, (b) the importance of preserving the person's existing family relationships, (c) the importance of preserving the person's particular cultural and linguistic environments, and (d) the practicability of services being provided to the person without the need for the making of such an order.
9. If the Tribunal finds that the person is "a person in need of a guardian" it must then determine whether or not a guardianship order should be made. The considerations listed in s 14(2) are mandatory considerations that the Tribunal is bound to take into account. However, the paramount consideration remains the welfare and interests of the person, as assessed by the Tribunal. Where there is a conflict between the welfare and interests of the person and any of the other principles or considerations listed in s 4 and s 14(2), those other principles and considerations must give way. The Tribunal's task is to take into account and weigh all the relevant considerations and principles, both for and against making a guardianship order, and then determine whether on balance the welfare and interests of the person are best protected or advanced by making, or refusing to make, such an order. (See BZE v NSW Public Guardian [2015] NSWCATAP 64.) If, for example, the physical well-being of a person cannot be reasonably assured or protected in the circumstances except by the appointment of a guardian then a guardian should be appointed with the minimum functions necessary to provide that assurance or protection. That is, the Tribunal seeks the least restrictive option for the person consistent with the protection of the person's welfare and interests.
10. In respect of financial management orders, s 25G of the Guardianship Act provides that: 25G Grounds for making financial management order The Tribunal may make a financial management order in respect of a person only if the Tribunal has considered the person's capability to manage his or her own affairs and is satisfied that: (a) the person is not capable of managing those affairs, and (b) there is a need for another person to manage those affairs on the person's behalf, and (c) it is in the person's best interests that the order be made.

Evidence before the Tribunal

1. The Tribunal had before it a Health Professional Report dated 17 June 2016 prepared by Dr Z, General Practitioner, confirming that Miss DTB is his patient and that she has a moderate intellectual disability due to Down Syndrome. Dr Z noted that Miss DTB's disability affects her capacity to make informed decisions about important aspects of her life.
2. At the hearing the applicant, Ms LTD, also told the Tribunal that Miss DTB does not have capacity to make important decisions. She said that Miss DTB was not able to properly understand what questions mean. She gave the example of the recent application to Centrelink for the Disability Support Pension for Miss DTB. She said that one of the standard questions was 'can you count from 1 to 20'. She said that Miss DTB answered 'yes' even though she can't.
3. Ms LTD explained to the Tribunal that the applications were motivated by difficulties she began to encounter in assisting Miss DTB on her turning 18 recently. One particular problem had been an inability to sign on Miss DTB's behalf for the obtaining of a Tax File Number in connection with the application for the Disability Support Pension. She said that since filing the applications she had come to the view that the principal need on the guardianship front in relation to Miss DTB related to medical issues. She noted in answer to the Tribunal's question that Miss DTB did not object to medical treatments but that she was not able to give informed consent because of her inability to understand what was proposed and the reasons for it. She said that she thought having a piece of paper appointing her as Miss DTB's guardian would prevent issues arising about consents to treatment and her authority to provide substitute consent on Miss DTB's behalf. She noted that Miss DTB had a Mirena IUD implanted to prevent menstruation. In the context of consents to medical treatments, the Tribunal explained to Ms LTD the 'person responsible' regime under the Guardianship Act for the giving of substitute consents on behalf of a person unable to give their own informed consent. For ease of reference the Tribunal has included a discussion of that regime below in [28] to [32].
4. Ms LTD noted that other potential areas of need for a guardianship order concerned accommodation and the rollout of the National Disability Insurance Scheme (NDIS). In relation to accommodation, Ms LTD said that she had previously assumed that Miss DTB would live with her forever, but that she was rebelling a bit now. She said that she may need to consider other accommodation options. In relation to the NDIS, she told the Tribunal that it was being rolled out in their area from this month and that a review of Miss DTB's entitlement to participate in the scheme would be undertaken between now and September.
5. Ms LTD also noted that Miss DTB's father was still involved in her welfare and that there was no conflict between them in relation to Miss DTB's care.
6. In relation to financial management, Ms LTD confirmed that the issue with the Tax File Number had been able to be resolved and that Miss DTB was now receiving the Disability Support Pension. The pension was being paid into a separate account in her name as trustee for Miss DTB. She confirmed that she was also Miss DTB's Centrelink nominee. In the circumstances she told the Tribunal that she did not think there was now a need for a financial management order and asked to withdraw the application.

What did the Tribunal have to decide?

1. The questions which the Tribunal had to decide were:

• Is Miss DTB in need of a guardian? In other words, is Miss DTB someone for whom the Tribunal could make an order because she has a disability in consequence of which she is totally or partially incapable of managing her person, for example, in the sense of making important decisions about her life in an informed way?
• Should the Tribunal make a guardianship order and, if so, what order should be made?
• Who should be the guardian?

Is Miss DTB someone for whom the Tribunal could make an order because she has a disability that prevents her from being able to make important decisions about her life in an informed way?

1. On the basis of the evidence before it, which it accepted, the Tribunal was satisfied that Miss DTB has a disability in the form of moderate cognitive impairment due to Down Syndrome, in consequence of which she is incapable of making important decisions about her life in an informed way. 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?

1. The Tribunal was not satisfied, however, at this point that Miss DTB's welfare and interests required that it make a guardianship order. Miss DTB appeared to have an effective and caring informal support network able to assist her in relation to important aspects of her life. Ms LTD was able to act as her person responsible for the purposes of giving consents to medical and dental treatment, and should also be able to be recognised as Miss DTB's nominees (both correspondence nominee and plan nominee) for the purposes of the NDIS. There was also no reason at this point to doubt that any accommodation decisions that might become necessary could also be made with the informal support available. The Tribunal notes, however, that circumstances can quickly change and that if a further need for a guardianship order was perceived, a further application for an order should be brought.
2. The Tribunal considered that it may be helpful to Miss DTB's family to set out in these reasons a summary of the person responsible regime under the Guardianship Act for the giving of consents to medical and dental treatment for a person incapable of giving their own informed consent. That summary now follows.
3. In all but exceptional circumstances [1] , medical and dental treatment of a person cannot be performed without the informed consent of that person. In general terms, medical and dental treatment includes intrusive examinations, the performance of medical or dental procedures or the administration of medications. In general terms, informed consent means the consent given by a person who is able to understand sufficiently what the medical or dental practitioner tells them about the nature, purpose and effects of the proposed treatment so as to be able to make a proper choice whether or not to consent to the proposed treatment. This depends on the person's ability to comprehend and retain information about the proposed treatment, to believe that information as it applies to them, and to weigh that information, balancing risks and benefits, when making a choice. Where a person is not capable of giving informed consent because of a continuing or temporary incapacity, the 'person responsible' regime under the Guardianship Act allows substitute informed consent to be given on behalf of the person by another person, 'a person responsible', which, according to a hierarchy, includes a guardian, spouse or close family member or friend. Depending on the treatment proposed, consent by a person responsible may not be effective if the person to be treated is objecting to the proposed treatment.
4. It is clear to the Tribunal that Miss DTB will not be capable of giving her own informed consent to most medical or dental treatments she may require. In these circumstances, in the usual case, substitute consent to the proposed treatment will be required before the treatment can be carried out.
5. Under the person responsible regime, and in the absence of a guardian for Miss DTB or a spouse, her close relatives will be her persons responsible for her under the Guardianship Act who can give valid consent to her medical and dental treatment. Foremost among these appears to be Ms LTD, Miss DTB's mother and carer. Miss DTB's treating doctors and dentists should look to Ms LTD in the first instance for consents to treatment, if the treatment is such that Miss DTB cannot give her own informed consent. That would likely include all but the most simple or basic of treatments.
6. In the circumstances, the Tribunal was satisfied that a guardianship order was not required in relation to Miss DTB's medical and dental treatment. The matter appeared sufficiently covered at this point by the person responsible regime.
7. In reaching its decision on the guardianship application, the Tribunal had regard to each of the matters in s 14(2) of the Guardianship Act.
8. The Tribunal was not able to ascertain Miss DTB's views about the possible appointment of a guardian.
9. In relation to the other matters specified in s 14(2) of the Guardianship Act: 1. The possible appointment of a guardian, particularly from within Miss DTB's family, was unlikely to have any negative impact on her existing family relationships. Those relationships appeared caring, supportive and strong; 2. There was no evidence before the Tribunal to suggest that the making of an order or not would have any impact on Miss DTB's particular cultural or linguistic environments; and 3. In the Tribunal's view, the appointment of a guardian was not necessary at this point to promote Miss DTB's welfare and interests and to facilitate the provision to her of the services she required because of the strong informal, familial support she had already in place.

Who should be the guardian?

1. In the circumstances this question did not need to be answered. Had it needed to be answered, it appeared clear that Ms LTD would have been suitable for appointment as required by s 17(1) the Guardianship Act.

What would the Tribunal have had to decide?

1. If the application had proceeded the questions the Tribunal would have had to consider were:

• Was Miss DTB incapable of managing her affairs?
• Was there a need for another person to manage Miss DTB's affairs and was it in her best interests for a financial management order to be made?
• If so, who should be appointed financial manager?

Consent to withdrawal of the financial management application

1. As noted, in [24] above, Ms LTD sought to withdraw the application on the basis that she no longer considered it necessary at this point. On the evidence before it, the Tribunal was satisfied that that was the case. In these circumstances, the Tribunal consented to the withdrawal of the application. Accordingly, the Tribunal did not need to consider the questions set out above.

Endnote

1. Exceptional circumstances include urgent treatment necessary to save a patient's life or to prevent serious damage to their health. 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: 01 June 2018