Evelyn (a pseudonym) [2025] NSWCATGD 6; (5 May 2025)

1. The Hearing was listed on 5 May 2025 and was conducted from the Tribunal's Sydney Registry.
2. The Hearing was attended in person by Tom, Elmer and Mark.
3. The Hearing was attended by video link by Chris and a social worker on behalf of St Vincents and a Cardiology Registrar at St Vincents.
4. Evelyn did not participate in the Hearing. On the morning of the Hearing, the Tribunal received correspondence indicating that Evelyn was too unwell to participate in the Hearing. The Tribunal decided that the Hearing should proceed notwithstanding Evelyn's absence, and that it would be in her best interests to do so.
5. On the morning of the Hearing, the Tribunal received a number of late papers. These included an eight-page statement by Chris, which Chris reports was emailed to each of the other parties, and a number of medical records, which were not provided to other parties and which were reported to be made available for consideration by the Tribunal only.
6. Noting that the late material was provided to the Tribunal otherwise than in accordance with the directions made on 11 March 2025, as amended by the directions made on 22 April 2025, and having regard to the notations made on the face of the 22 April 2025 orders (which were included due to concerns raised by Chris about potential procedural unfairness in the event of non-compliance with the stated filing directions), the Tribunal determined that the material submitted to the Tribunal on 5 May 2025 should be excluded from evidence. Accordingly, the Tribunal has not considered such material in determining the current application (save for the notification that Evelyn would be too unwell to participate in the Hearing).
7. At the conclusion of the Hearing, the Tribunal decided to reserve its decision as there was insufficient time available for the Tribunal to deliberate at the conclusion of the Hearing. Later the same day the Tribunal decided:

(1) To approve Chris' resignation as Enduring Guardian; and,

(2) To treat the application as if it were an application for a guardianship order; and,

(3) To appoint the Public Guardian as Evelyn's guardian under a temporary guardianship order for a period of up to thirty days with the functions of accommodation (including authorise others), services, health care and medical/dental consent.

1. Section 6HB of the Guardianship Act 1987 (NSW) provides for the resignation of an appointed enduring guardian. If the appointor is not in need of a guardian, then the appointee may resign from the appointment by providing written notice to the appointor[1]: Guardianship Act, s 6HB(1)(a). If, however, the appointor is a person in need of a guardian, such resignation may only be made with the approval of the Tribunal: Guardianship Act, s 6HB(1)(b).
2. In light of Chris' purported resignation on 27 April 2025, it is necessary for the Tribunal to consider whether Evelyn is a person in need of a guardian.
3. 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": Guardianship Act, s 3(1).
4. A person with a disability is a person who is:

(a) intellectually, physically, psychologically or sensorily disabled;

(b) of advanced age;

(c) a mentally ill person within the meaning of the Mental Health Act 2007 (NSW); or

(d) 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: Guardianship Act, s 3(2).

1. In the event that the Tribunal finds that Evelyn is not a person in need of a guardian, Chris' resignation from his appointment appears on the face of it to be valid, and there would be no practical utility in the Tribunal considering any further action on review.
2. In the event that the Tribunal finds that Evelyn is a person in need of a guardian, the Tribunal needs to consider whether[2]:

(1) To approve Chris' purported resignation from his appointment as Enduring Guardian;

(2) To substitute another person as Evelyn's enduring guardian consequent to Chris' resignation (in accordance with s 6MA of the Guardianship Act);

(3) To treat the application as if it were an application for a guardianship order (in accordance with s 6K(3)(a) of the Guardianship Act).

1. The application made by St Vincents was premised on an assertion that Evelyn, as at February 2025, had the requisite capacity to provide her own informed consent to medical treatment and declined treatment on account of influence from her enduring guardian and/or Evelyn's enduring guardian was proposing to make decisions regarding Evelyn's access to medical treatment notwithstanding the assessment by her treating medical practitioner that she retained the requisite capacity to provide her own consent.
2. In light of Chris' resignation, it is ultimately unnecessary for the Tribunal to make findings of fact with respect to these allegations.
3. When assessing whether a person is a person in need of a guardian, the Tribunal commonly considers the person's ability to make important personal, health and lifestyle decisions - the ability to make such decisions being a major life activity that impacts on the person's ability to function normally in the community with others. It is important, however, not to conflate the issue of decision-making ability with the issue of whether a person who, because of a disability, is totally or partially incapable of managing his or her person.
4. St Vincents provided the Tribunal with a number of reports in support of their application, including:

(1) Letter from a resident medical officer (RMO), dated 19 February 2025;

(2) Letter on behalf of Dr Z[3], a cardiologist, dated 20 February 2025;

(3) Letter from the RMO, dated 19 February 2025 (referred to as "Assessment of Mental Capacity").

1. The evidence provided by St Vincents, on its face, appears to relate to Evelyn's capacity to provide her own informed consent to medical treatment. An understanding of the circumstances under which such assessments were conducted is relevant for current purposes.
2. The following is reported by St Vincents[4]:

"[Evelyn] ... presented [to hospital] with decompensated heart failure in the context of medical non-compliance. She was admitted to St Vincent's Hospital on 14/02 with symptoms of heart failure, including fluid overload and dyspnoea.

During her admission, her son [Chris] disclosed that he had been altering her medications based on side effects he read about, independently adjusting dosages without medical oversight. On examination, [Evelyn] appeared fluid overloaded, with signs consistent with heart failure, including elevated JVP, peripheral edema, and distended neck veins. Her echocardiogram showed a significantly reduced ejection fraction of 20-25%, representing a sudden deterioration from a previous echocardiogram result. Given her condition an angiogram was recommended to exclude reversible ischemic causes; however, [Chris] strongly opposed this intervention despite being informed of the serious health consequences if left untreated.

[Evelyn] was assessed and determined to have full decision-making capacity. She expressed her willingness to proceed with the angiogram; however, she subsequently discharged herself against medical advice on Tuesday night (18/02/2025). Prior to this, [Evelyn] reported to the medical team that [Chris] had been depriving her of food, disregarding her treatment preferences, altering and withholding her medications, and being verbally abusive.

Given these circumstances, we have serious concerns that [Evelyn] is under coercion by her son, with elements of elder abuse contributing to her reluctance to proceed with medically necessary treatment. We firmly believe her autonomy is being compromised, and urgent intervention is required to safeguard her wellbeing."

1. In the "Assessment of Mental Capacity", the RMO records the following:

"The assessment revealed that [Evelyn] is fully competent to make decisions regarding her ongoing medical treatments. She demonstrated a clear understanding of her health situation, treatment options, and the potential consequences of not undergoing the proposed procedure. During the assessment, [Evelyn] provided coherent and responsive answers to questions about her opinions, and she showed a sound grasp of the risks and benefits associated with the angiogram procedure."

1. The report dated 20 February 2025 outlines that a Montreal Cognitive Assessment (MOCA) was undertaken on 17 February 2025 in which Evelyn returned a score of 24/30[5].
2. At Hearing, the cardiology registrar outlined that during Evelyn's admission he had formed the view that Evelyn retained the requisite capacity to provide informed consent to the proposed treatment based on her MOCA score and the assessments made by himself and other treating medical practitioners involved in her care. The cardiology registrar noted that on account of her non-English speaking background a RUDAS may have been preferable to a MOCA. He noted that it is possible that Evelyn's capacity has deteriorated since her discharge (particularly noting her "significantly advanced heart failure"), and he declined to comment on more functional aspects of Evelyn's capacity in circumstances where this falls more into the domain of allied health professionals.
3. Concerns identified by Evelyn's treating team include:

(1) Reports by Evelyn that she is not allowed to consume a sufficient amount of food (including documented weight loss of 10kg between her prior admission in August 2024 to her admission in February 2025 - a drop from 60kg to 50kg);

(2) Concerns that Evelyn is being improperly coerced into refusing medical interventions notwithstanding a clearly expressed desire to receive such treatment;

(3) Concerns that Evelyn's medications are improperly being altered without necessary and appropriate medical oversight.

1. Chris denied that Evelyn is a person in need of a guardian. Notwithstanding the reports presented by St Vincents and email correspondence between Chris and the social worker to the contrary, Chris told the Tribunal that "[Evelyn] knows what she wants, what she is doing" and denied that his appointment as enduring guardian had been activated.
2. Notwithstanding Chris' assertions at Hearing, his email to the social worker dated 18 February 2025 includes the following comments:

"ENDURING GUARDIAN'S POSITION

The patient's capacity is diminished and most especially diminished to make risk-weighted decisions in respect of her treatments, including procedures and medications.

For the record, if SVHS wish to attain consent directly from the Patient to the exclusion of myself, then I must be informed of this position and have the opportunity to attain independent medical advice (from experts not associated with St Vincent's) and have an opportunity to object through legal action.

...

RESERVATION OF RIGHTS

I sincerely hope my position is clear, that it is not permissible for a group of medical practitioners to unilaterally assess capacity, and then proceed to attain consent, in the face of strong objections from family, Enduring Guardian, and Officer of the Court. The situation must be resolved through an adjudicative process.

I have reasonable grounds to assert that the patient has insufficient capacity to undertake risk-weighted decision making of medical treatment. I make this assertion as an Officer of the Court of NSW and Justice of the Peace of NSW.

..."

1. Chris was provided the opportunity to address these earlier statements at Hearing, and maintained his position that Evelyn is not a person in need of a guardian and that his appointment as Evelyn's enduring guardian had not been activated.
2. Elmer told the Tribunal that he had recently visited Evelyn and "she is a shadow of her former self". Elmer told the Tribunal that although he is unsure about Evelyn's capacity (and supports the need for a proper assessment of same), she now provides only very short answers to questions, and requires considerable personal care, including help moving from her bed to her chair and for toileting. This is in contrast to her presentation mid-2024 when Evelyn asked Elmer for input around medical treatment, when she freely engaged in discussion about the proposed treatment, and where she was capable of engaging in lengthy conversations. Elmer expressed a view that Evelyn requires more support than she is currently receiving, but was unsure of what supports may be required.
3. The Tribunal attempted to seek Tom's views as to whether Evelyn may be a person in need of a guardian, however the Tribunal was unsure to what extent Tom understood the concepts being discussed as his answers to questions were not always responsive to the question that was posed. This could, in part, be attributable to possible hearing loss (where the Tribunal observed at one point that Tom appeared unable to hear Mark despite him speaking quite loudly), though Tom denied any hearing impairment and rejected the offer for him to use a hearing loop.
4. In response to questions asked regarding Evelyn's need for any support services and her ability to organise such services herself, Tom told the Tribunal that Evelyn doesn't want any services. When asked his thoughts on the proposed treatment Tom told the Tribunal "I quite agree with her [Evelyn] ... I think it was the right decision". Tom proceeded to explain to the Tribunal his own experiences with cardiology treatment in the past, and relied on his negative experiences as a basis for why Evelyn should not receive treatment. Tom told the Tribunal that Evelyn didn't want the treatment and that she was "put under pressure by the doctors" though conceded that he was not present during these discussions. When asked about his role in facilitating Evelyn's discharge from hospital contrary to medical advice, Tom confirmed that he did not take any steps to speak to Evelyn's doctors to help satisfy himself that discharge was the appropriate decision to make.
5. Mark was able to provide evidence about his own observations and interactions with Evelyn, which occurred as recent as the morning of the Hearing. Mark told the Tribunal that he "strongly believes" that Evelyn is in need of a guardian and that there is a need for an independent person to be appointed to the role. Mark described considerable decline in Evelyn's presentation, particularly over the last month. Mark told the Tribunal that he doesn't believe that Evelyn would be able to implement her own decisions and that in his interactions with her she appears "almost docile". Mark told the Tribunal that he believes Evelyn needs to be in hospital and that she is "declining day by day". Mark reported that when discussing the possibility of getting medical attention for Evelyn she expressed her support for this, telling him "would you, please". Mark told the Tribunal that Evelyn requires "substantial daily care" including being unable to cook and requiring considerable assistance with activities of daily living including bathing and toileting.
6. The social worker, after hearing the reports from Evelyn's family, opined that Evelyn "is someone who requires substantial support" and that the evidence "seems to support that she is a person in need of a guardian".
7. Irrespective of whether or not Evelyn is able to provide her own informed consent to medical treatment, there is evidence of cognitive decline (based on her score on the MOCA and the reported decline in her ability to engage in meaningful conversation) which may impact upon her ability to make important lifestyle decisions for herself.
8. Although there is no medical evidence regarding Evelyn's functional capacity, the evidence before the Tribunal supports that there has been a significant decline in Evelyn's functional capacity to the extent that she requires support in a number of activities of daily living.
9. In the absence of any formal diagnosis other than symptoms of heart failure, the Tribunal is satisfied based on the lay evidence regarding Evelyn's reported cognitive and functional decline that she is "otherwise disabled" to the extent that she is at least partially restricted in her ability to manage her person. Accordingly, the Tribunal is satisfied that Evelyn is a person in need of a guardian.

Should the Tribunal approve Chris' resignation as enduring guardian?

1. Having regard to Chris' desire to resign from his appointment as enduring guardian and the nature of the allegations made against Chris (without the need to make any findings in relation to same), the Tribunal is satisfied that Chris' resignation should be approved by the Tribunal.

Should the Tribunal substitute another person as Evelyn's enduring guardian?

1. Although it is open to the Tribunal to substitute another person to fill the vacancy arising from Chris' resignation, the Tribunal did not consider that it would be appropriate to do so. In reaching this decision the Tribunal notes that there were no proposals before the Tribunal for a suitable private person to be appointed as Evelyn's guardian and that in any event there was limited evidence before the Tribunal to allow the Tribunal to appropriately assess the suitability, or otherwise, of any proposed appointment. Compounding these concerns is that the Hearing was conducted in Evelyn's absence, and accordingly there was no ability for the Tribunal to consider Evelyn's views, and the weight to be attributed to same, with respect to any such appointment.

Is it in Evelyn's best interests to deal with the review as if an application had been made for a guardianship order?

1. For the reasons outlined above, the Tribunal is satisfied that Evelyn is a person in need of a guardian.
2. Upon Chris' resignation as enduring guardian, Evelyn is left without a substitute decision maker. There are clearly identifiable decisions to be made on Evelyn's behalf, particularly with respect to her access to health care and medical treatment. There are concerns about Evelyn's functional capacity to make and implement such decisions, particularly in circumstances where such decisions appear not to be supported by her spouse (Tom) and carer (Chris), and where there are identified concerns that, even if Evelyn retains the cognitive capacity to make her own informed decisions regarding her medical treatment, her will may be overborne by others.
3. In all of the circumstances the Tribunal is satisfied that it is in Evelyn's best interests for the Tribunal to proceed as if the application were an application for a guardianship order.

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

1. Having determined that Evelyn is a person in need of a guardian, and therefore a person for whom the Tribunal could make a guardianship order, the Tribunal is required to consider whether or not to exercise its discretion to make such an order.
2. Section 14(2) of the Guardianship Act outlines a number of equally important factors for us to consider and balance in the exercise of our discretion. 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 Guardianship Act. 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). The Tribunal has had regard to each of the mandatory s 14(2) factors of the Guardianship Act, which are only referred to herein to the extent that they are of particular relevance to the decision made by the Tribunal.
3. During the Hearing the Tribunal informed the participants that, in the event the Tribunal decided to proceed as if the application were an application for a guardianship order and thereafter make a guardianship order, it was the intention of the Tribunal to proceed on the basis that a temporary guardianship order would be made.
4. This is in circumstances where the Hearing proceeded in Evelyn's absence, where her views are not before the Tribunal (in any reliable way), where there was limited evidence available to assess the suitability (or otherwise) of any proposed private guardian, and where there was insufficient time available to the Tribunal to properly consider issues of suitability for the purpose of a continuing order.
5. By proceeding on the basis that the Tribunal was only considering a temporary guardianship order, the Tribunal notes that the Tribunal is only permitted to appoint the Public Guardian and may do so for a period not exceeding thirty days: Guardianship Act, ss 17(4) and 18(2).
6. A critical factor weighing in favour of the making of a temporary guardianship order (as opposed to adjourning the Hearing on a part-heard basis) was the identified need for urgent assessment, and if necessary treatment, of Evelyn's potentially life-limiting health condition. In his submissions Mark expressed significant concern that without hospitalisation and appropriate treatment Evelyn may die prior to the Tribunal's next Hearing.
7. In accordance with s 33A(4) of the Guardianship Act, in the absence of the appointment of a guardian with a medical/dental consent function, Tom would appropriately be considered as Evelyn's "person responsible" for the purpose of providing substitute consent to medical treatment. The Tribunal was sufficiently concerned about the suitability or otherwise of this arrangement prevailing in the immediate short term in circumstances where Tom supported Evelyn's discharge from hospital contrary to medical advice, where he relies on his own negative experiences, rather than suitable medical advice, to inform Evelyn's treatment options, and where there is no evidence of Tom having actively assisted Evelyn to obtain any follow up cardiology treatment upon her discharge from St Vincents.
8. As outlined above Evelyn did not participate in the Hearing and accordingly the Tribunal was unable to ascertain her views with respect to the making of a guardianship order.
9. Chris, as Evelyn's former enduring guardian and her current carer, opposes the making of a guardianship order. He informed the Tribunal that the making of a guardianship order presents a "great risk of violating [Evelyn's] rights".
10. Mark, Elmer and the social worker each supported the making of a temporary guardianship order.
11. Tom was afforded the opportunity to share his views about the proposal to make a temporary guardianship order, however his response to the Tribunal was not directly relevant to this issue.
12. The Tribunal is conscious that the making of a guardianship order (and the appointment of the Public Guardian) may have an impact on Evelyn's existing family relationships and may also be inconsistent with Evelyn's cultural background. Although no evidence was presented to the Tribunal specific to the issue of culture, it was apparent to the Tribunal, based on the interactions between the parties, that there may be cultural sensitivities that weigh against such appointment. Notwithstanding this, the Tribunal is satisfied that it is manifestly in Evelyn's best interests for a guardianship order to be made even if doing so may have an impact on her family relationships and cultural background.
13. The Tribunal is satisfied that absent the appointment of a guardian it is unlikely that services, allied health supports and/or appropriate medical care will be provided to Evelyn.
14. The immediately pressing issue is the need for Evelyn to receive appropriate medical assessment, and if necessary, interventions. This requires the appointment of a guardian with a medical/dental consent function, as well as a health care function to enable access to necessary health information to inform any decisions that may need to be made.
15. In the context of Evelyn discharging from hospital contrary to medical advice, and thereafter declining assistance to be transported back to hospital by ambulance, the Tribunal is satisfied that for a guardian to make appropriate and necessary decisions regarding Evelyn's access to medical services it will be necessary for a guardian to be appointed with accommodation and authorise others functions. This will enable the guardian to have Evelyn transported to hospital and prevent her unauthorised discharge from hospital.
16. Upon receipt of any necessary medical interventions, it is anticipated that a guardian will need to make a decision with respect to whether or not it is safe for Evelyn to be discharged home. The inclusion of a services function will enable the guardian to commence an ACAT assessment and consider whether Evelyn may benefit from any supports to remain living safely at home, or otherwise (in connection with the accommodation function) whether Evelyn requires accommodation instead in a residential aged care facility.
17. In all of the circumstances the Tribunal is satisfied that the Public Guardian ought to be appointed as Evelyn's guardian pursuant to a temporary guardianship order for a period of up to thirty days with the functions of accommodation, authorise others, services, health care and medical/dental consent.
18. The Tribunal notes that the Public Guardian is not authorised to override Evelyn's objections to medical treatment, and in the event that such need arises it is possible for an urgent application to be made to the Tribunal to consider whether such authority may be required.
19. It is hoped that Evelyn will be able to participate in the next Hearing, though it is the intention of the Tribunal to appoint a separate representative for Evelyn for the purpose of the Hearing for the review of guardianship order to ensure that, to the extent possible, Evelyn's views may be available to the Tribunal for the next Hearing.

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.

[1] Noting that such written notice must be in accordance with s 6HB(2) of the Guardianship Act.

[2] Noting that this is not a comprehensive list of powers available to the Tribunal on review, but rather a list of options that may reasonably be considered by the Tribunal in the particular circumstances of the current case.

[3] Jointly prepared by a Cardiology Advanced Trainee, a Cardiology Registrar, and a Cardiology Social Worker.

[4] See letter prepared by the RMO dated 19 February 2025.

[5] The Tribunal notes that scores below 26/30 may be suggestive of a degree of cognitive impairment.