EQK [2016] NSWCATGD 29

Parties and witnesses

1. The Appendix to these Reasons for Decision identifies the parties to the application and the witnesses who participated in the hearing. [Appendix removed for publication.]

Issues for determination by the Tribunal

1. The issues for determination by the Tribunal were: 1. Is Mr EQK someone for whom the Tribunal could make an order because he is a person in need of a guardian, as that term is defined in the Guardianship Act 1987 (NSW)? 2. Should the Tribunal make a guardianship order? 3. If an order is to be made, who should be the guardian and what functions and authorities should the guardian have? 4. How long should the guardianship order last?

Participation in the hearing by Mr EQK and his views

1. Mr EQK attended the hearing and was able to provide his views by answering questions from Tribunal Members. He told us that he did not think that he needed a guardian, but that he would like his friend, LNR, to make decisions for him. He said: "She does all of my work and looks after me. I trust her and have known her for 45 years."
2. Mr EQK described his health as "not good". He was able to describe the purpose of his medication. He said that his doctor gave him the medication and he takes it all in accordance with the doctor's instructions. He confirmed that he had been admitted to public hospital A four times, but said that on each occasion: "they just checked my blood and sent me home. There was nothing wrong with me."
3. Significantly, Mr EQK told us that he was to be admitted into a nursing home within a few days of this hearing. He said he had seen the nursing home on the morning of this hearing and liked it because he would have his own room and it is located in Inner Western Sydney. He said that LNR would take him to the nursing home and "she will sign all the paperwork for me".

THE TRIBUNAL'S ASSESSMENT OF THE EVIDENCE AND DETERMINATION OF THE ISSUES

Is Mr EQK a person in need of a guardian, as that term is defined in the Guardianship Act?

1. 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. That phrase is defined in s 3 of the Guardianship Act as "a person who because of a disability, is totally or partially incapable of managing his or her person". 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.
2. The Tribunal Members had reviewed the medical and clinical evidence concerning Mr EQK which had been accepted at previous hearings. We noted that at the hearing on 3 February 2016, the Tribunal Panel had considered a report from Dr Z, Senior Staff Specialist Geriatrician at public hospital B and an Aged Care Client Record as well as a short report from Mr EQK's general practitioner. The Tribunal on that occasion accepted those reports as establishing to its satisfaction that Mr EQK had disabilities, namely mild dementia secondary to cerebrovascular disease and long-standing schizophrenia, and that these disabilities prevented him from making important life decisions, so that he was someone for whom the Tribunal could make a guardianship order.
3. For the purposes of this hearing we had received an updated written report dated 19 October 2016 from Dr Z, who had reviewed Mr EQK in the Cognitive Disorders Clinic of the public hospital B on the day of her report. Dr Z understood that following a discharge from hospital earlier in 2016 Mr EQK had been admitted to the care facility for respite and that it was hoped that he would proceed to permanent residential care, but was awaiting the return of his friend, LNR, to assist with this. Dr Z noted that Mr EQK's weight had increased and that reflected better nutrition. Unfortunately, although Mr EQK had initially asserted that he had stopped smoking, on further questioning he admitted that he had not done so. Mr EQK scored 25/30 on a Mini Mental State Examination, with deficits in orientation and short-term recall. Dr Z concluded that although Mr EQK looked "the best I have seen him for some time today" and that his nutrition had improved, he had a clear need for permanent residential care. Dr Z confirmed the diagnosis established in her earlier report.
4. There was no inconsistent or contradictory professional evidence. On that basis we were satisfied that Mr EQK continues to have disabilities which prevent him from making some important life decisions and that he remains "a person in need of a guardian" within the meaning of the Guardianship Act.

Legal basis for the Tribunal's analysis

1. The Tribunal has a discretion as to whether or not to make a guardianship order, even where it has concluded that the subject person is "a person who has a disability" for the purposes of the Guardianship Act. Not all people with a disability who are incapable of making life decisions should be regarded as being in need of a guardianship order and there are important principles in the Guardianship Act, particularly in ss 14(2) and 4 of that Act, which the Tribunal must consider in deciding whether it should make an order. Essentially, the Tribunal is directed to consider whether the subject person's life circumstances, their needs, and the protection of their rights necessitate the appointment of a legally authorised and legally empowered substitute decision-maker (that is, a guardian) or alternatively whether their need for appropriate decision-making can be achieved in a less formal way.

The evidence

1. The applicant, Ms BXC, told us that she believed that there was a need for a guardian for Mr EQK. In her view the need arose because, although he had expressed general acceptance of his proposed new nursing home, there would be a need for someone with decision-making authority to ensure that Mr EQK settled in at the nursing home and that any further appropriate accommodation and services decisions could be made for him. Ms BXC confirmed her view that if Mr EQK were to return home, a "vicious circle" would recommence, under which his living conditions at home would rapidly deteriorate. She confirmed that his unit had been found to be in a squalid condition on previous occasions.
2. Mr EQK's close friend Mrs KMQ, who was previously known as LNR, also attended the hearing and confirmed that she continued to live in Inner Western Sydney and would continue to provide support to Mr EQK. We understood Mrs KMQ to agree that in the circumstances of the case a guardianship order would be necessary. However, following further discussion, both Mrs KMQ and Ms BXC agreed that the order could be for a relatively short duration.
3. We accepted the evidence and views of the applicant, Ms BXC, and Mr EQK's supportive friend, Mrs KMQ, as genuine and persuasive.

The Tribunal's determination of this issue

1. In reaching a conclusion on this important issue, we considered each of the factors prescribed by s 14 (2) of the Guardianship Act which appeared to be relevant. We also had regard to the general principles set out in s 4.
2. In considering the s 14(2) factors, we considered Mr EQK's views as summarised above. However, on the basis of the evidence, particularly that of Ms BXC and Dr Z, we gave more substantial weight to the question of whether, as a practicable matter, the services which Mr EQK needs could be made available to him without the need for a guardianship order. We accepted Ms BXC' evidence as establishing that they could not.
3. We also had regard to the guiding principles set out in s 4 of the Guardianship Act. The principles, other than those already considered by reference to s 14 (2), which appeared to have primary relevance to this case were the need to enable Mr EQK, so far as possible, to live a normal life in the community and to be self-reliant in matters relating to his personal and domestic affairs. We also observed our obligation to restrict Mr EQK's freedom of decision and freedom of action as little as possible. As s 4(a) of the Guardianship Act requires, we gave paramount consideration to Mr EQK's welfare and interests. We were satisfied on the basis of the evidence that they would be preserved and protected by the making of an order.
4. On the basis of this analysis we were satisfied that there is a current need for decisions on behalf of Mr EQK, particularly decisions about his accommodation and services, to be made by a guardian and that a guardianship order should be made for him.

What order should be made? Specifically what functions should the guardian have, who should be the guardian and what should be the duration of the order?

Decision-making functions

1. It followed from the analysis under the previous heading that a guardian for Mr EQK should have the decision-making functions of accommodation and services. There was no indication from the evidence that Mr EQK required assistance in decision-making in other areas.

Identity of the guardian

1. Following discussion at the hearing it was proposed that Mr EQK's friend and supporter, Mrs KMQ should be appointed as his guardian.
2. The Tribunal may appoint a private person or the Public Guardian as guardian. As required by s 15(3) of the Guardianship Act, when it is considering the making of a continuing guardianship order the Tribunal will not appoint the Public Guardian in circumstances in which such an order could be made appointing a suitable private person as guardian. So, wherever possible and appropriate under the Guardianship Act, the Tribunal will appoint a private guardian.
3. Section 17 of the Guardianship Act expressly prohibits the Tribunal from appointing a person as guardian unless it is satisfied that the person has a personality generally compatible with the personality of the person under guardianship, has no undue conflict of interest, particularly but not restricted to a financial conflict of interest, in respect of the person under guardianship; and that he or she is willing and able to exercise the functions of the order. We were satisfied that Mrs KMQ satisfied each of these tests and that accordingly she was a suitable person to be appointed as guardian. We were also satisfied that her appointment would be in Mr EQK's best interests. The appointment of Mrs KMQ was supported by the applicant, Ms BXC. No other person was identified as being willing to be appointed as guardian. We appointed Mrs KMQ accordingly.

Duration of the order

1. Under the Guardianship Act, except where the Tribunal is satisfied that the subject person has permanent disabilities and is unlikely to become capable of managing their person, the maximum term of an initial order is 12 months. In this case we decided to make an order for six months only and we decided to make the order a non-reviewable one; that is, an order which would not automatically be reviewed at the expiry of its term. We took this step because we believed that an order in this form would best balance the need for an alternate decision-maker to ensure that Mr EQK is settled in his nursing home accommodation, against our obligation to minimise interference in Mr EQK's freedoms of decision and action. Additionally, for the purposes of s 16 (2A) of the Guardianship Act we were satisfied that a non-reviewable order would be in Mr EQK's best interests.

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: 23 December 2016