DZD is a 40-year-old Aboriginal woman who ordinarily lives in Department of Housing accommodation at regional NSW. It is reported that DZD has no family involved in her life. At the time of the hearing DZD was a patient at a public hospital at South Sydney.
On 27 July 2020, whilst intoxicated, DZD was a victim of a high-speed motor vehicle accident as a result of which she was placed in an induced coma on life support for seven days. DZD sustained significant traumatic brain injury in the incident and required lifesaving surgery to drain fluid from her brain. It is reported that DZD also has chronic schizoaffective disorder and is prescribed Paliperidone Invega depot on a monthly basis pursuant to a Community Treatment Order. DZD also has a history of epilepsy and diabetes.
DZD's affairs have been managed by the NSW Trustee and Guardian pursuant to a financial management order made in 2007.
On 6 August 2020 the Tribunal received a request from CBE, Intensive Care Specialist at the public hospital, for consent to medical treatment in respect of DZD.
On 7 August 2020 an application for the appointment of a guardian for DZD was lodged at the Tribunal by SPD, Social Worker at the public hospital.
The request for consent to medical treatment was listed before us on 7 August 2020. The written application for consent to treatment proposed ongoing brain protective medication, medication for chronic mental illness and physical rehabilitation. DZD will require CT and MRI imaging, ongoing assessment and possibly further surgical intervention if secondary insult occurs (for example, clotting or seizures). DZD requires oral and intramuscular sedation to manage her behaviour and physical restraint to keep her from getting out of bed and attempting to leave the ward against medical advice. DZD has actively objected to medical treatment since she came out of the coma and has been very behaviourally disturbed.
DZD is not detained under the Mental Health Act 2007 (NSW) as the psychiatric team at the public hospital considered that although DZD clearly has a mental illness, her presentation is due to the brain injury secondary to being struck by a car. She is unable to be detained under the Mental Health Act to treat the impact of her brain injury.
For these reasons, CBE submitted the urgent request for consent to medical treatment and SPD submitted an urgent guardianship application.
We determined that the request for consent to medical treatment would be more properly dealt with as part of a guardianship application given the evidence of CBE and the material submitted in support of his application for consent to medical treatment.
The complexity and urgency for decisions to be made on an evolving basis, necessitated the hearing proceeding without the usual notice being provided. Similarly, we accepted that as a result of the severity of her brain injury, DZD was unable to participate in the hearing. SPD reported that DZD is highly distressed and has difficulty understanding why she has to remain in hospital. She would not be able to contribute meaningfully in a hearing.
Due to the urgent nature of the guardianship application, the Tribunal was not in a position to convene a three-member panel as is the usual practice for initial applications for guardianship.
The COVID-19 Legislation Amendment (Emergency Measures) Act 2020 (Cth) came into force on 26 March 2020. Section 23 of that Act enables the Guardianship Division of the Tribunal to be constituted by two members assigned to the Tribunal instead of three members in exercising a guardianship function during the term prescribed by the legislation. Orders made by a Tribunal constituted of two members must be reviewed by a Tribunal constituted of three members.
As the guardianship application came before the Tribunal during the prescribed period of the COVID-19 Legislation Amendment (Emergency Measures) Act the Tribunal was in a position to conduct the hearing of the guardianship application by a Tribunal constituted of two members.
None of the participants in the hearing, including the Public Guardian as a statutory party, objected to this course of action and approval was given by Principal Member Suthers of the Guardianship Division for the application to be considered by a Tribunal constituted of two members.
[2]
The hearing
At the end of these Reasons for Decision are lists of the parties to the application and the witnesses who attended the hearing. [Appendix removed for publication.]
As the hearing was held during the COVID-19 pandemic it was conducted entirely by telephone.
We initially commenced the hearing as an application to consent to medical treatment from CBE, however, due to the written and oral evidence we obtained, considered that the hearing should be listed later on the same day in conjunction with the guardianship application.
[3]
What did the Tribunal have to decide?
The questions which had to be decided by the Tribunal were:
Is DZD 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?
[4]
Is DZD someone for whom the Tribunal could make a guardianship order because she has a disability which prevents her from being able to make important life decisions?
Section 14 of the Guardianship Act 1987 (NSW) ("the Act") provides that the Tribunal may make a guardianship order for a person if it is satisfied that he or 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": the Act, s 3(1). 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; 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: the Act, s 3(2).
CBE told us that DZD has a significant ischaemic and infarcted brain as result of being hit by a motor vehicle at high speed, on a background of chronic schizoaffective disorder. There is extensive damage to most parts of DZD's brain resulting in disinhibition and thought disorder. CBE said that the brain injury has left DZD with poor cognitive function, no insight and impulsive behaviour that is a danger to her ongoing physical and psychological safety. She is physically deconditioned. He told us that DZD fluctuates in periods of wakefulness, agitation and impulsiveness. She has no constructive thoughts or ability to plan.
We received a progress note dated 6 August 2020 from Dr Z, Psychiatrist. Dr Z reported that it was difficult to interview DZD and said that although she has a mental illness and possibly a confronting personality style, the acute clinical situation is that DZD has a brain injury secondary to being struck by a car. Her interaction style, attempts to leave, and anger are best attributed to the brain injury rather than schizophrenia. DZD is likely to have acquired cognitive deterioration from the brain injury that may become a much larger disability than schizophrenia. Dr Z said that DZD lacks decision making capacity.
An occupational therapy progress note from 5 August 2020 indicated that attempts to review DZD for Post Traumatic Amnesia were unsuccessful due to her agitation and degree of distractedness. DZD was not oriented to time or location and has very poor short term memory. She continues to have paranoid delusions about the medical team. It is likely that DZD will need 24-hour supervision.
We were satisfied that as a result of traumatic brain injury on a background of chronic mental illness, DZD is unable to make important life decisions. She is a person for whom we could make a guardianship order.
[5]
Should the Tribunal make a guardianship order and what order should be made?
The Tribunal must consider all of the following matters set out in s 14(2) of the Act before exercising its discretion to make a guardianship order:
1. the views (if any) of:
1. the person;
2. the person's spouse;
3. the person's carer; and
1. the importance of preserving the person's existing family relationships;
2. the importance of preserving the person's particular cultural and linguistic environments; and
3. the practicability of services being provided to the person without the need for the making of such an order.
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 the matters in s 14(2) of the Act. 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).
As noted above, DZD was unable to participate in the hearing or provide a view due to the extent of her disabilities.
SPD told us that despite extensive efforts, no person responsible has been located. DZD's ex-husband and child have had no contact with her for many years and did not want to be involved in the hearing or her treatment. We were told that DZD is well known to the Mental Health Team in regional NSW and has a case manager and Aboriginal support worker who both confirmed that DZD has no family or friends.
CBE told us that DZD was taken off life support on 4 August 2020. Since that time DZD has refused medications that are necessary to prevent bleeding, oedema and further brain damage. She will occasionally agree to take olanzapine to manage her agitation. DZD requires ongoing brain protective medications, physical rehabilitation and treatment for her mental illness. Given the extensive brain injury it could be many months before DZD improves, if ever. CBE told us that it will be necessary for DZD to undergo imaging and other assessments to monitor her brain injury and to determine which course of treatment should be followed. He said that this will be an evolving situation over many months. CBE said that it is unclear which medications will be used and they are likely to be changed depending upon her response.
As DZD is actively objecting to treatment, there is a need for a guardian to have the authority to override her objection to medical treatment. We noted that DZD is subject to a community treatment order in respect of her regular psychotropic medications, which she is currently mostly refusing, however, she is also objecting to accept treatment for the brain injury.
In addition to traumatic brain injury, DZD will require ongoing treatment and management of her mental health, epilepsy and diabetes. She will require input from rehabilitation specialists and therapists. As there will be a need for frequent decisions to be made in respect of DZD's medical treatment, we considered that it was more appropriate for the medical and dental consent and health care functions to be conferred upon a guardian than to have consent provided by the Tribunal whenever different treatment is required. Ms TZI, Duty Guardian, Office of the Public Guardian, participated in the hearing and requested the authority to override DZD's objection to treatment that is manifestly in her best interest.
DZD is currently cared for in the intensive care unit at the public hospital and the occupational therapist recommended that she not be transferred to another ward even when medically stable until an appropriate ward and behaviour management plan is established. DZD is demanding to leave hospital and we were told that although she is physically deconditioned due to the brain injury, she is still physically capable of trying to get out of bed or to abscond. It is unclear if or when DZD would be transferred to a rehabilitation ward, however CBE and SPD said that a guardian would need the authority to call upon others to implement accommodation decisions, including decisions about hospitalisation.
DZD currently requires 24-hour supervision and it is unclear if this will change in the future due to the nature of her brain injury. A guardian may need to make decisions about appropriate accommodation in the community following discharge from hospital. It is likely that DZD will object to placement in supported accommodation.
It was unclear on the evidence before us if DZD is already a National Disability Insurance Scheme (NDIS) participant due to her mental illness. The impact of her brain injury means that a guardian will have to make decisions to enable her to become a participant if she is not one already and to apply for a change in circumstances if DZD is an NDIS participant. There are numerous complex decisions to be made for DZD in the area of services for the foreseeable future.
CBE and SPD told us that DZD has required the oral and intravenous administration of psychotropic medications to manage her behaviour rather than to treat her mental illness. We were satisfied that this constitutes chemical restraint that requires the consent of a guardian. We noted that the occupational therapist who reviewed DZD on 5 August 2020 recommended the development of a behaviour management plan. If DZD is ultimately discharged to supported accommodation and chemical restraint is still required, then NDIS registered service providers are only able to implement restrictive practices with the consent of a guardian.
We were told by CBE and SPD that the treating team have needed to apply soft physical restraint to keep DZD in bed when she has attempted to get out of bed against medical advice. The treating team are attempting to reduce DZD's agitation as this increases blood pressure which can exacerbate her brain injury. We considered that it was appropriate for a guardian to consider whether to consent to the restrictive practice of physical restraint while she is in hospital, rehabilitation or NDIS funded supported accommodation.
Ms TZI of the Office of the Public Guardian agreed that it would be appropriate to make a guardianship order in respect of accommodation, including the authority to call upon others to implement accommodation decisions, medical and dental consent, health care, services and restrictive practices in relation to chemical and physical restraint. Ms TZI said that if appointed, the Public Guardian would request the authority to override DZD's objections to medical treatment.
DZD is an Aboriginal woman who has had the benefit of an Aboriginal support worker, Ms Y, in the regional NSW area. It will be important for a guardian to consider the impact of any decisions upon her cultural and linguistic environment. We were advised by SPD that DZD will receive support from Aboriginal liaison workers during her hospitalisation and rehabilitation when she is physically and psychologically ready for this.
The issue of the preservation of family relationships must be considered in our decision to make a guardianship order. The Mental Health Team in regional NSW and DZD's Aboriginal support worker advised SPD that DZD had no family or friends as far as they were aware. SPD told the Tribunal that Police had managed to locate DZD's daughter, Ms X, now in her twenties, who reported that her mother left home when she was three or four years old and they are not in contact. Ms X declined to be person responsible or participate in the hearing. Ms X's father, DZD's ex-husband, has not been in contact with her for many years, declined to be person responsible and declined to participate in the hearing. He asked that his contact details not be added to the application. He reported that DZD has a mother, Ms W, and a brother in Queensland, however, he has no contact details for them. It is possible, that in the future service providers and other involved parties may be able to locate DZD's mother and brother and hopefully reconnect DZD to her family and her culture.
We were satisfied that services cannot practicably be received in DZD's circumstances without an order.
We were satisfied that a guardianship order should be made with the functions of accommodation, including the authority to call upon others to implement accommodation decisions, medical and dental consent (with the authority to override DZD's objection to medical treatment), health care, services and restrictive practices in respect of chemical and physical restraint.
[6]
Who should be the guardian?
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: the Act, s 15(3).
The Supreme Court has held that:
"the proper meaning to be given to the section is to read it as saying that the Public Guardian should not be appointed in circumstances in which an order can properly be made in favour of another person. That requires not only that the person be willing, reliable and responsible, but that the appointment will result in the policy considerations and principles set forth in the Act being given effect (W v G [2003] NSWSC 1170, [25])."
As there is no private person available to be appointed as guardian, we appointed the Public Guardian.
[7]
How long should the order last?
An initial guardianship order may be made for up to twelve months. We made the order for four months as DZD was unable to participate in the hearing and provide her views in respect of a particularly intrusive order. We accepted the evidence of CBE in respect of the severity of DZD's disability and that it may take some time to determine her prognosis and the impact of rehabilitation. We considered that in four months' time there will be a clearer picture of the impact of DZD's disability and the nature of the decisions that are required on her behalf.
[8]
REQUEST FOR CONSENT TO MEDICAL TREATMENT
As we had made a guardianship order providing the Public Guardian with the authority to provide consent to medical treatment on DZD's behalf and overriding her objections, CBE asked to withdraw the application for consent to medical treatment. We were satisfied that it was appropriate to consent to that request and dismissed the application.
[9]
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: 09 June 2021
accident - Aboriginal subject person with no contact with family or friends - active refusal of medical treatment - need for decisions to be made about accommodation, health care and consent to medical and dental treatment - use of psychotropic medical to manage behaviour - chemical restraint - need for decisions to be made about the use of restrictive practices - Public Guardian appointed.
Legislation Cited: COVID-19 Legislation Amendment (Emergency Measures) Act 2020 (Cth), s 23
Guardianship Act 1987 (NSW), ss 3(1)-(2), 4, 14, 14(2), 15(3)
Mental Health Act 2007 (NSW)
Cases Cited: IF v IG [2004] NSWADTAP 3
Texts Cited: Nil
Category: Principal judgment
Parties: 003: Consent to Medical or Dental Treatment