EBI [2017] NSWCATGD 6

NCAT Guardianship|2017-03-21

uardianship Division of the Civil and Administrative Tribunal have been anonymised to remove any information that may identify any person involved in the Tribunal's proceedings (s 65, Civil and Administrative Tribunal Act 2013 (NSW)).

What the Tribunal decided

Standing: The Tribunal was satisfied that St Vincent's Hospital Sydney Ltd has the requisite standing to request a review of the guardianship order and to apply for a financial management order for Mr EBI.
Requested review of a guardianship order: The Tribunal reviewed the previous guardianship order made on 9 December 2016 concerning Mr EBI and confirmed that order with the following variations - by varying the accommodation function to authorise others to take Mr EBI to a place approved by his guardian, to keep him at that place, and to return him should he leave. The Public Guardian was reappointed with the functions of health care and medical and dental consent.
Financial management application: The Tribunal appointed Ms KHM as Mr EBI's private financial manager subject to the authorities and directions ordered by the NSW Trustee and Guardian.

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.]
An interlocutory hearing was held on 9 March 2017 when the Tribunal granted leave for Ms Rachel Mansted of counsel, briefed by the Crown Solicitor, to represent SVHS in relation to the issue of standing of the hospital to make an application for the appointment of a financial manager and to request a review of the guardianship order.
Ms Mansted, briefed by the Crown Solicitor, attended the first part of the hearing to make submissions on SVHS's standing to make the application.
Mr EBI attended the hearing by telephone from the hospital.

Does St Vincent's Hospital Sydney Ltd have standing to bring the application?

Section 9(1)(d) of the Guardianship Act 1987 (NSW) states that a person has standing to bring an application if he/she is: 1. the person who is the subject of the application, 2. the Public Guardian, or 3. any other person who, in the opinion of the Tribunal, has a genuine concern for the welfare of the person.
SVHS applied for review of the guardianship order and a financial management order for Mr EBI under new guidelines issued by the Ministry of Health. Those guidelines recommend that applications to this Tribunal for guardianship orders be made in the name of the Local Health District or Speciality Network rather than the name of an individual health professional. This is a shift from the usual policy of individual practitioners, such as social workers, making applications for guardianship orders. [Ministry of Health - System Relationships and Frameworks, Guardianship Application Process for Adult Inpatients of NSW Facilities (Guideline No GL2016_026, NSW Ministry of Health, 4 November 2016)]
Ms Mansted's submission on standing is detailed below.

Is SVHS is a "person" with standing to make the application?

SVHS is a company incorporated under the laws of Australia and is limited by guarantee. It is an "affiliated health organisation" for the purposes of s 62B of the Health Services Act 1997 (NSW) (HSA) in respect of its recognised establishments and services (Sacred Heart Health Service, St Joseph's Hospital Auburn and St Vincent's Hospital Darlinghurst). St Vincent's Hospital is also listed in Schedule 3 of the HSA as an affiliated health organisation in respect of the three establishments and services referred to above.
The term "person" is defined in s 21 of the Interpretation Act 1987 (NSW) as "an individual, a corporation and a body corporate or politic."
There is nothing in the text or context of the Guardianship Act which would indicate that the word "person" in s 9(1)(d) is intended to have a meaning other than that provided for in the Interpretation Act.
SVHS is a corporation and is therefore a "person" within the meaning of s 9(1)(d).
Ms Mansted referred to a recently decided case in the Guardianship Division - NEJ [2017] NSWCATGD 1, in which the Tribunal found that a Local Health District under the HSA was a person for the purposes of s 9(1)(d) of the Guardianship Act. She submitted that an affiliated health organisation and a Local Health District are both "public health organisations" under s 7 of the HSA and are to "be treated as part of the public health system" under s 13 of the HSA.

Does SVHS have a genuine concern for the welfare of the person who is subject of an application?

The purpose and role of SVHS as an affiliated health organisation demonstrates that it would have a genuine concern for the welfare of any person about whom an application was brought in circumstances where they were providing services to that person.
In NEJ, the Tribunal referred to CJH v Department of Family and Community Services [2016] NSWCATAD 162. Ms Mansted noted that the latter case held that genuine concern should be given its natural and ordinary meaning. In Minister for Disability Services v People with a Disability Inc (CSD) [2010] NSWADTAP 44, the Tribunal found that there was no difficulty in attributing a corporate body with a genuine concern. CSD specified a number of factors that may be considered with reference to the genuineness of an organisation's intention including the organisation's aims and the level of the organisation's practical activity in pursuit of its objects and aims.
Section 13(3) of the HSA states that the principal reason for recognising affiliated health organisations "is to enable non-profit, religious, charitable or other non-government organisations and institutions to be treated as part of the public health system where they control hospitals, health institutions, health services or health support services that significantly contribute to the operation of that system".
The functions of SVHS are set out in its Constitution as well as its Executive Services Agreement between SVHS and the Secretary, NSW Health, and the objectives include delivering high-quality, effective services that promote, protect, and maintain the health of the community and provide care and treatment to sick and injured people (page 6 of the Agreement).
The objects clause of the SVHS Constitution at clause 3, subclauses (vii) and (xvi), refer to assisting patients to obtain appropriate medical and surgical services and providing direct relief of sickness, suffering and distress by operating the Health Facilities to serve the people in NSW and elsewhere in Australia. Clause 4 of the Constitution clarifies that any income and property is to be solely applied towards promoting the objects in clause 3 and that no part of the SVHS's income or property may be paid or directly or indirectly transferred to any member of the SVHS.
Ms Mansted concluded that the constituent and governing documents of SVHS confirm that it is a person with a genuine concern in relation to the applications before the Tribunal and thus has standing under s 9(1)(d) of the Guardianship Act to make the applications concerning Mr EBI.
There were no submissions from any other party in relation to standing.

The Tribunal's finding on SVHS's standing to make applications to this Tribunal

The Tribunal found that SVHS is a "person" within the meaning of s 21 of the Interpretation Act. As an affiliated health organisation in the public health system its aims and objectives, as set out in its Constitution and in the Executive Services Agreement, indicate that it provides direct relief of sickness, suffering, and distress by operating the health facilities to serve the people in NSW. These aims and objectives are consistent with indicating a genuine concern for the welfare of the person who is the subject of an application before the Tribunal.
Mr EBI is currently an inpatient at St Vincent's Hospital Sydney. In its application, SVHS requested a review of the guardianship order and the appointment of a financial manager to promote Mr EBI's health and safety and to prepare him for discharge to appropriate accommodation which will allow him to access necessary medications and health care.
The Tribunal finds that the purpose of the application indicates that SVHS has a genuine concern for Mr EBI and so the Tribunal is satisfied that SVHS has standing to request a review of Mr EBI's guardianship order and to apply for the appointment of a financial manager for him.

What did the Tribunal have to decide?

On reviewing the current guardianship order at the request of SVHS, the Tribunal may confirm, vary, suspend, revoke, renew or renew, and vary the order.
SVHS has requested the Tribunal to review the current guardianship order for Mr EBI because decisions need to be made about discharge and his future accommodation. He is insistent on returning home which risks his safety and health care.
Accordingly, the questions to be considered by the Tribunal are:

Is Mr EBI 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 guardianship order continue, be revoked or be renewed?
What functions should now be given to the guardian?
Who should be the guardian?

Is Mr EBI 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?

Section 14 of the Guardianship Act provides that the Tribunal may make a guardianship order for a person if it is satisfied that he 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" (s 3(1), Guardianship Act). 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 2007 (NSW); 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 (s 3(2), Guardianship Act).
When the previous order was made, the Tribunal found that Mr EBI had a disability being vascular dementia and a mental illness and was unable to make important life decisions.
Dr Z, Staff Specialist in Addiction Medicine, St Vincent's Hospital, provided a report dated 28 February 2017 in which he noted that Mr EBI has severe vascular dementia and schizoaffective disorder/bipolar mania. He noted an additional diagnosis of lung cancer diagnosed in October 2016 with metastatic disease to the right humerus. Mr EBI has also been diagnosed with opioid dependence and has been treated with methadone since 2008. On cognitive screening in January 2017, using Addenbrooke's Cognitive Examination, Mr EBI scored 47/100.
Dr Z stated that Mr EBI's limited insight into his medical condition and inability to care for himself at home and self-administer his opioid medications affected his ability to make decisions about his accommodation, health and medical care, and financial affairs. Due to his deteriorating condition, secondary to lung cancer, he is unable to attend the clinic daily for opioid replacement therapy and unable to administer medications at home because of his poor memory. Dr Z recommended that Mr EBI be placed in a residential aged care facility.
Ms Y, clinical neuropsychologist, assessed Mr EBI in mid-January 2017. She found that he had marked frontosubcortical dysfunction characterised by impaired attention, working memory, processing speed, and executive functioning and that the degree of his cognitive dysfunction observed on testing together with his presentation raised concerns about his decision-making abilities. She supported the applications before the Tribunal.
Relying on the recent reports and assessments by Dr Z and Ms Y, the Tribunal is satisfied that Mr EBI continues to have a disability which prevents him making important life decisions. He is a person for whom the Tribunal could make a further guardianship order.

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

The Tribunal must consider all of the following matters set out in s 14(2) of the Guardianship Act before exercising its discretion to make a further guardianship order: 1. the views (if any) of: 1. the person, and 2. the person's spouse, and 3. the person's carer and 1. the importance of preserving the person's existing family relationships, and 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). When undertaking this task the Tribunal may be guided by the principles that are set out in s 4 of the Guardianship Act (see IF v IG [2004] NSWADTAP 3).
Mr X, social worker, St Vincent's Hospital, explained that the Public Guardian needs a coercive accommodation function because Mr EBI is ready for discharge from hospital and needs to be discharged into residential aged care. However, Mr EBI is insistent that he should return home. Mr EBI's admission in January 2017 was his fourth hospital admission since September 2016.
Mr X explained that when Mr EBI was last discharged from hospital, he was discharged to his unit in the inner-city area of Sydney on the understanding that he would attend Treatment Centre A for his methadone treatment. He became increasingly unreliable in attending for treatment and his pain was not well-managed. Consequently, he was re-admitted to hospital. When he was ready for discharge, he inspected two facilities with a social worker from Treatment Centre A. He chose Treatment Centre B. The Public Guardian made a decision that he be discharged there. He was discharged from hospital but within two days, having refused to sign the paperwork to remain at the facility and pay the relevant fees, Mr EBI self-discharged to his unit in Sydney's inner-city area. He returned to hospital after eight days because he began to suffer methadone withdrawal. He could not travel to Treatment Centre A in the inner-city area of Sydney for his methadone and could not manage his pain. Mr X noted that this was Mr EBI's second failed discharge in the past few months. The treating team was concerned to prevent Mr EBI from being exposed to further pain from his cancer and significant risks to his health if he returned home.
Mr EBI told the Tribunal that he did not like Treatment Centre B, he was not ready for discharge and when he was ready he wanted to return home. When asked how he would access the treatment program at Treatment Centre A, he stated that he did not know and he was unable to explain why he couldn't access the program when he self-discharged home recently. He clearly stated that he wanted to return to his unit in the inner-city area of Sydney.
Ms KHM is Mr EBI's former partner. She was of the view that if Mr EBI could be encouraged to go to the facility and be made comfortable there, he would probably accept that he needed to remain there.
The Duty Public Guardian, Ms Amanda Smith, supported the application for a coercive accommodation function.
The Tribunal carefully considered Mr EBI's views but found that due to his documented cognitive impairment he was unable to make reasonable decisions about his health, welfare, and safety and so preferred the views of the treating team that he required accommodation in a residential aged care facility because he was unable to cope alone at home. It is in his best interests that he lives in supported accommodation where his healthcare needs can be well-managed. Considering his two failed discharges and his recent self-discharge from an aged care facility, it would not be possible to promote his best interests without a coercive accommodation order.
Considering Mr EBI's best interests and the need to prevent further significant risks to his health and well-being, the Tribunal decided that there was an ongoing need for a guardianship order for him, which included the following functions - accommodation (authorise others), healthcare, and consent to medical and dental treatment.

Who should be appointed as guardian?

The Public Guardian was appointed as Mr EBI's guardian on the last occasion. As there is no private person available to be appointed as guardian, the Tribunal reappointed the Public Guardian.

Should the order be renewed and, if so, how long should the order last?

As this is a requested review of the guardianship order of 9 December 2016, the order will be reviewed again in December 2017.

What did the Tribunal have to decide?

The questions to be considered by the Tribunal are:

Is Mr EBI incapable of managing his affairs?
Is there a need for another person to manage Mr EBI's affairs and is it in his best interests for a financial management order to be made?
If so, who should be appointed financial manager?

Is Mr EBI incapable of managing his affairs?

Mr EBI was unable to provide the Tribunal with information about his financial affairs other than that he received an age pension and he thought his electricity bills were deducted from his pension. He did not know the amount he received or how much rent he paid or the balance of his pension after payment of his necessary outgoings.
Mr EBI was adamant that he did not need a financial management order.
Considering Mr EBI's very limited knowledge of his financial affairs and the assessments made by Dr Z and Ms Y, the Tribunal was satisfied that he was not capable of managing his finances.

Is there a need for a financial management order?

The Tribunal was satisfied that the need for a financial management order was created by the need for Mr EBI to move into an aged care facility and the recent experience of his failed discharge when he refused to sign appropriate paperwork for admission and for payment of fees.

Is it in Mr EBI is best interests that a financial management order be made?

The Tribunal was satisfied that it is in the best interests of Mr EBI to make a financial management order to ensure that he has access to appropriate accommodation which manages his significant and increasing health care needs.

Who should be appointed as financial manager?

In appointing a financial manager, as in making all other orders under the Guardianship Act, the Tribunal must act with the interests of the person concerned as the paramount consideration and in accordance with the other principles set out in s 4 of the Guardianship Act.
Section 25M of the Guardianship Act provides that, if the Tribunal makes a financial management order, it may appoint a suitable person to manage the person's estate or may commit the management of the estate to the NSW Trustee and Guardian.
In Holt & Anor v Protective Commissioner (1993) 31 NSWLR 227, the Court said that the dominant consideration in making orders about financial managers was the welfare of the person. The President of the Court of Appeal emphasised the Court's broad discretion in deciding who should be financial manager but also set out possible considerations as to the competing advantages of the then Protective Commissioner and a family member as the manager of an estate. The NSW Trustee and Guardian now exercises the role of the Protective Commissioner.
On the side of the then Protective Commissioner was seen to be the manifest independence of the statutory office, the advantages of a dispassionate, and neutral approach in situations of family conflict and divided views as to the best interests of the person, expertise and experience in managing estates, an impeccable reputation and the security provided to an estate against loss or damage.
The advantages of the appointment of a family member were more economic management of smaller estates (that is, freedom from fees) and a greater familiarity with assets and liabilities in smaller estates, a greater capacity of a person with a disability to interact with the manager so as to exercise a greater influence over the broad directions of the management of the estate, love and affection for and knowledge of the protected person and concern for his or her quality of life, and particular qualities or qualifications enabling family members to act as managers.
The Court considered that interrelated property interests in a family situation, where a conflict of interest and duty may be "more apparent than real", should not necessarily present an absolute bar to appointment of a family member who is otherwise appropriate. However, when appointing a family member, a decision maker must be satisfied that the estate, income and capital assets, will be utilised to advance the interests and quality of life of a protected person rather than to eventually increase the assets of the family.
The Tribunal discussed with Ms KHM whether she would consider appointment as Mr EBI's private financial manager. When the duties were explained to her and when it was also suggested that the order may not be necessary in the long-term Ms KHM agreed to the appointment.
Ms KHM is an accountant who works for a custom broking firm. She stated that she is not and has never been bankrupt; she has never been charged with any money related offences; and there is no intermingling of hers and Mr EBI's finances.
Mr EBI when given the option of the NSW Trustee and Guardian or Ms KHM was unable to make a choice. He did not express any views that Ms KHM should not be appointed.
The Tribunal found that Ms KHM maintained an ongoing commitment to Mr EBI, was happy to assist him to manage his finances and had the requisite experience to do so. She indicated that she would attempt to persuade him to accept any necessary financial decisions rather than impose the decisions on him. Her knowledge of Mr EBI's needs and understanding of his concerns would allow her to tailor her decisions about his finances to his particular circumstances.
The Tribunal was satisfied that Ms KHM was a suitable person to be appointed as Mr EBI's financial manager subject to the authorities and directions ordered by the NSW Trustee and Guardian.

Should the financial management order be reviewed?

The Tribunal noted that the need for an order may only be short lived because once Mr EBI is well settled in appropriate accommodation there will be no further decisions to be made under a financial management order. For this reason the Tribunal decided to make the financial management order reviewable in nine months, to be reviewed at the same time as the statutory review of the guardianship order.

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 21 November 2017 - Amended reference to case OH v Department of Family and Community Services [2016] NSWCATAD 162 to CJH v Department of Family and Community Services [2016] NSWCATAD 162. 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: 21 November 2017

At a glance

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