DTX [2019] NSWCATGD 11

The hearing

1. At the end of these Reasons for Decision is a list of the people who attended the hearing. [Appendix removed for publication.]
2. The hearing was listed in regional NSW primarily to facilitate the participation of DTX and other parties to the proceedings. Unfortunately, DTX was unable to attend the hearing.
3. Ms Z, Director of Nursing, at the aged care facility, informed me that she had spoken with DTX over the last week to explain the purpose of the hearing and to determine whether he wished to be involved. She advised me that DTX, due to his cognitive disabilities, was simply unable to understand their conversation, and it was her view that he did not have the ability to participate in the hearing.
4. Ms C, Senior Guardian with the Public Guardian, said that she had been unable to engage with DTX. Ms C said that she had endeavoured to speak with DTX in early-May by telephone but was advised by staff at the aged care facility that such a call would not be appropriate due to DTX's dementia rendering him unable to understand the purpose of the hearing.
5. On the basis of the evidence put to me by Ms Z, I was satisfied that I should proceed to conduct the review of the guardianship order in the absence of DTX.

What did the Tribunal have to decide?

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

• Is DTX someone for whom the Tribunal could make an order because he continues to have a disability which prevents him 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?

Is DTX someone for whom the Tribunal could renew an order?

1. By s 14(1) of the Guardianship Act 1987 (NSW) ("the Act"), I have the power to renew a guardianship order for DTX if I am satisfied that he is "a person in need of a guardian".
2. 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": s 3(1) of the Act. The disability must restrict them in one or more major life activities to such an extent that they require supervision or social habilitation: s 3(2) of the Act.
3. On two previous occasions, the Tribunal, having regard to the evidence before it, concluded that DTX is a person in need of a guardian.
4. The Tribunal's reasons for renewing the current order on 5 May 2016 summarised the evidence and its findings as to DTX's cognitive capacity as follows: [8] At the hearing of the guardianship application for [DTX] on 16 March 2015 the Tribunal was satisfied on the basis of medical and professional care evidence that [DTX] had been diagnosed with Korsakoff's syndrome and chronic alcohol abuse and that because of those disabilities he was unable to make some important life decisions. There was no new or updated medical evidence concerning [DTX]. [9] [Ms Y], the Director of Nursing at [a public hospital] and [Ms X] the facilitator of [a healthcare facility] indicated that there had been no change to [DTX]'s diagnosis and in fact some deterioration of his condition particularly in relation to displays of aggression and related behavioural problems. There was no medical or other professional evidence to the contrary. We accepted the evidence of [Ms Y] and [Ms X] as reliable and persuasive. On that basis we were satisfied that DTX was someone for whom we could make a further guardianship order because he continues to have disabilities which prevent him from being able to make some important life decisions.
5. Whilst I did not have the benefit of any documentary evidence as to DTX's current cognitive capacity, I did have the benefit of oral evidence from Ms Z. Ms Z advised me that she had known DTX for approximately two years through her role at the aged care facility. She has almost daily contact with DTX, except for weekends, and it was her understanding that DTX has been diagnosed with dementia on a background of alcohol abuse, as well as other medical conditions, including hypertension, treatment for bilateral cataracts, a peptic ulcer, coronary issues and osteoarthritis.
6. Ms Z told me that DTX's capacity and general health had declined in the last 12 months. As an illustration of this, she explained that this was, to her knowledge, the first year that he had been unable to physically attend the local ANZAC Day march - instead a service was held for him at the aged care facility.
7. I accepted the evidence of Ms Z that DTX has an ongoing disability, which has been the subject of previous diagnosis, and that sadly, if anything, his cognition is declining over time.
8. I was satisfied by this evidence that DTX remains a person for whom I could renew the current guardianship order if satisfied I should do so. To use the words contained in the Act, DTX remains a person in need of a guardian.

Should the Tribunal make a further guardianship order and if so, what order should be made?

1. When considering whether to renew the guardianship order, I am required to have regard to: the views of DTX, if his views can be obtained; the importance of preserving DTX's existing family relationships and particular cultural and linguistic environments; as well as the practicability of services being provided to him without the need for an order: s 14(2) of the Act.
2. These matters have no hierarchy or weighting and each is a mandatory consideration. However, the Tribunal must undertake a balancing exercise for its consideration of these matters and when undertaking this task the Tribunal may be guided by the principles that are set out in s 4 of the Act (see IF v IG [2004] NSWADTAP 3).
3. As previously noted, I was unable to obtain the views of DTX on whether or not the current order should be renewed. Further, the information available to me indicated that DTX does not have any regular contact with any family members, nor does DTX have any particular cultural or linguistic characteristics that require consideration.
4. A detailed report was provided to me by the Public Guardian, authored by Ms C and dated 1 May 2019. The report submitted that the guardianship order should be permitted to lapse. The Public Guardian's position was explained as follows: Recommendations The Public Guardian believes [DTX] no longer needs a guardian. [DTX] is residing in permanent accommodation and has access to health and other services as required. Consent has been provided for his current medications and there are no decisions that need to be made. The Public Guardian was not able to establish [DTX]'s view about this recommendation as he does not understand the role of the Public Guardian due to his disability. 2. Reasoning In forming this view the Public Guardian has considered: The views of significant others Whether [DTX] can provide his own consent Whether [DTX]'s health care needs are being met The least restrictive option Current functions and Decisions made Accommodation and authorise others, Services, Medical/Dental Consents, Health Care Accommodation and authorise others In October 2016 the Public Guardian consented to [DTX] moving to reside in [an aged care facility] as a permanent resident. This is viewed as [DTX]'s permanent home, and there are no anticipated accommodation decisions. The Public Guardian therefore recommends that this function lapse. Services No decisions have been made during the order with regards to services for [DTX]. [DTX] accesses services and participates in activities as a resident of the aged care facility and will continue to be offered these opportunities as per the aged care standards. The Public Guardian therefore recommends that this function can lapse. Health Care and Medical/Dental Consents [DTX] is reported to be in general good health. [DTX] is reviewed as required by his General Practitioner [Dr W] and the Public Guardian has consented to the influenza vaccine and his current medication regime to treat the behavioural and psychological symptoms of dementia as follows: Lorazepam 1mg at 1400 hrs Citalopram 1mg mane Risperidone 1mg at 1400 hrs, 0.5mg BD Norspan Patch 20 mg/hr [Dr W] advised the Public Guardian in March 2019 that he does not anticipate any changes in [DTX]'s medications, and is aware of the options of applying to the Guardianship Tribunal (sic) for one-off consent as required In January 2019, the Public Guardian provided consent to DTX having 2 teeth removed as they were decayed and not functional or chewing, and the aged care facility is aware that any further dental treatment would require consent, and this can be sought from the Guardianship Tribunal (sic) as one-off consent. [DTX] has access to health services as required in line with aged care standards, and the Public Guardian is satisfied that his health needs are being met without the need for a formal order. The Public Guardian therefore recommends that the order can lapse.
5. At the hearing Ms C made submissions consistent with the report.
6. Ms Z agreed with the position put by the Public Guardian that there was no longer a need for a guardian to be appointed to make decisions for DTX's accommodation or services. His accommodation at the aged care facility is permanent and any general services he requires can be organised informally through their facility.
7. However, contrary to the position put by the Public Guardian, Ms Z submitted that there was on ongoing need for a guardian to be appointed to make decisions as to DTX's health care and to provide substitute consent to medical and dental treatment. Ms Z told me that DTX did not have any family or friends who had contact with him on a regular basis and that there was no one that she or others could turn to for substitute consent on behalf of DTX as person responsible (see Pt 5 of the Act).
8. Ms Z advised that DTX's behaviour can at times be challenging for those who provide his care. She said that when he gets anxious, he can "get quite physical" and it is necessary to provide him with medication, medication that constitutes major medical treatment (as that term is defined in the Act). Ms Z made the point that it was her understanding that medication used for this purpose was to treat anxiety associated with dementia, not to specifically control DTX's behaviour.
9. I reviewed the submissions of the Public Guardian that there was no reason to continue a guardianship order, particularly as they were set out in paragraph 2 of its written report, referred to at [24]. In that regard, it was uncontroversial that:

• The only relevant views of significant others in DTX's life were the view of Ms Z that an order should continue, which needs to be considered in the context of evidence from [Ms C] that DTX's general practitioner, Dr W, was aware that applications for one off consent to treatment could be brought if the guardianship order was not renewed;
• DTX cannot give his own consent to treatment, due to his disability; and
• DTX's health care needs are being met and that this has required consent in relation to both his medical and dental treatment from the Public Guardian, during the course of the last order.

1. I also considered whether allowing the current order to lapse would be the "least restrictive" option, as was submitted by the Public Guardian, specifically in light of the acknowledgement by Ms C that if the order was not renewed, the consent given by the Public Guardian to the medications prescribed to DTX until March 2020 would immediately cease and that this would, properly, necessitate an immediate, separate application for the Tribunal to consider giving this consent on an ongoing basis.
2. As was said by the Appeal Panel of the Tribunal in ZGV v ZGT [2018] NSWCATAP 55 at [22]-[23], where it was argued that the Tribunal had placed too much emphasis on the idea that it should as a matter of general principle make "the least restrictive order": [22] With due respect to the Tribunal, we think the statement - 'The Tribunal is obliged to make 'the least restrictive order' consistent with the safety and welfare of the person in relation to whom the application is brought' is not an accurate paraphrase of the nature of the discretion given to the Tribunal by the Act. It misdescribes the approach required by s 14(2). The first sentence of para [12] compresses into a combined proposition the first two general principles set out in s 4, which, to reiterate, are: (a) the welfare and interests of such persons should be given paramount consideration, (b) the freedom of decision and freedom of action of such persons should be restricted as little as possible. [23] The Tribunal's paraphrase excludes from view the other considerations in s 4, and makes no reference to the mandatory considerations found in s 14(2). It also tends to suggest that there is an all-encompassing principle of least restriction.
3. Further, I note and agree with comments made by Principal Member Britton in MAQ [2016] NSWCATGD 70 at [34], where she said in an apposite context, in part, that: …it is flawed logic to suggest that where the nature of the subject person's decision-making disability is such that they are effectively unable to make decisions of significance on their own behalf, not being subject to guardianship order is the "least restrictive option". Absent a guardianship order, decisions will continue to be made on behalf of Ms MAQ on an informal basis. The question is who will make those decisions.
4. Here, then, I am satisfied that the focus should be on making whatever orders will best promote DTX's welfare and interests, having regard to all of the matters outlined in ss 4 and 14 of the Act. Given DTX's clear inability to consent to his own treatment, I need to decide which order will best promote his interests in accordance with the Act.
5. In some cases, where the evidence indicates that consents may need to be given only infrequently, or in relation to reasonably simple health issues, it may be more appropriate to proceed without making a guardianship order.
6. However, where, as here, the evidence indicates that more regular consent may be required, or that a person has multiple medical conditions and complex health care needs, it is usually more appropriate to appoint a guardian with the 'medical and dental consent' function, so that there is consistent oversight of the person's needs and to also ensure that any necessary decisions are not potentially delayed by the requirement to make individual applications seeking consent from the Tribunal.

Who should be appointed as the guardian?

1. The Tribunal is not able to appoint the Public Guardian as a person's guardian if there is a private person who can be appointed: s 15(3) of the Act.
2. As there was no private person available to be appointed as DTX's guardian, I continued the appointment of the Public Guardian as DTX's guardian.

How long should the order last?

1. On review, a guardianship order can be renewed for a period of up to three years from the date on which it was made.
2. Ms C, on behalf of the Public Guardian, submitted that if the order was to be renewed, it should only be reviewed for a period of one year on the basis that such an order would be the "least restrictive option", and on the basis that it was possible DTX's medication regime may decrease over time.
3. Ms Z submitted that she did not see any basis for a shorter term order than was allowable as there was nothing to indicate DTX's health care needs or medication regime would decrease over time.
4. I determined to renew the guardianship order for a period of three years. Given the level of incapacity of DTX to make his own health care treatment decisions, it is flawed to suggest, in his circumstances, that a shorter order than is allowable is "least restrictive" or otherwise in keeping with the principles contained within s 4 of the 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

Amendments 13 November 2019 - Further anonymisation made. 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: 13 November 2019