FI v Public Guardian

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; 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 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).
Ms F represented the Public Guardian during the hearing. She gave evidence that no decisions have been made by the Public Guardian during the term of the guardianship order made approximately 12 months ago and no consents to treatment have been requested. QZS only takes minor medications on a routine basis and a major medication prescribed for agitation has rarely been administered.
Ms F reported that an officer from the Public Guardian met with QZS independently of any family members. QZS stated that she wanted to remain at the aged care facility. It is in the area where she has lived for the past 60 years and she has regular visitors. Ms F noted that the Public Guardian has not received any proposal in relation to alternative accommodation for QZS during the term of the order.
MV stated that she now believes it is preferable for QZS to remain at the aged care facility where she is settled. She also noted that it would no longer be possible for her mother to be moved as a result of COVID-19. MV remains concerned, however, that her mother's medical needs are not being met appropriately. QZS has macular degeneration for which she used to have regular injections but these ceased when she moved into the aged care facility. MV believes that even though her mother cannot read or watch television, it is important that her sight is preserved as much as possible. MV also has concerns about the management of her mother's ongoing urinary tract infections; the lack of air-conditioning in her mother's room; and the alleged cancellation of a hair appointment for her mother by CZ.
KAS gave evidence that QZS continues to have urinary tract infections but the aged care facility is managing this. KAS confirmed that QZS was having injections for macular degeneration prior to being placed at the aged care facility but that she is no longer capable of going to the surgery for treatment. KAS stated that QZS no longer reads or watches television.
Ms S is the general manager of the aged care facility. She stated that eye specialists will not attend the aged care facility to give QZS injections. QZS is checked on a monthly basis to determine if she has a urinary tract infection and is encouraged to drink but often refuses.
CZ denied cancelling his mother's hair appointment and stated that he is happy with QZS's accommodation and care at the aged care facility. He noted that his mother sometimes refuses services such as haircuts as a result of her dementia.
Ms R, Manager Care and Lifestyle, said that the facility is centrally air-conditioned. It was agreed that QZS's room may be less adequately cooled than others because of its location. However, this has to be weighed up against its proximity to the nurses' station which is viewed as beneficial. Ms R confirmed that QZS is not taking any major medications.
I asked Ms R to explain the purpose of a document titled 'Future Treatment Orders' (FTO) which had been signed on 19 March 2020 by Ms R, CZ and KAS. She stated that the relatives of residents are requested to sign this document (often referred to as an 'Advanced Care Directive' (ACD)) if the resident is unable to do so.
Ms F stated that the Public Guardian was not consulted in relation to the preparation of this document.
The FTO is not a valid document. In order to be valid, such a document must be signed by the person to whom it relates after being informed of the purpose and effect of the FTO at a time when that person is able to understand the facts and choices involved and the consequences of their decisions. An FTO cannot be signed by any other person.
In Hunter and New England Area Health Services v A [2009] NSWSC 761, McDougall J summarises the principles relating to emergency care decisions, including ACDs. His Honour states at [40]: (6) A person may make an "advance care directive": a statement that the person does not wish to receive medical treatment, or medical treatment of specified kinds. If an advance care directive is made by a capable adult, and is clear and ambiguous, and extends to the situation at hand, it must be respected. … (11) What appears to be a valid consent given by a capable adult may be ineffective if it does not represent the independent exercise of persons (sic) volition: if, by some means, the person's will has been overborne or the decision is the result of undue influence, or of some other vitiating circumstance.
The apparent lack of understanding of the facility about what is required for an ACD or FTO, a very significant legal document, to be valid is of great concern.
There is a regime set out in Part 5 of the Guardianship Act for a 'person responsible' to provide lawful substitute consent for the carrying out of certain medical or dental treatment, without being appointed by the Tribunal as a guardian. This regime, however, relates only to proactive medical interventions (FI v Public Guardian [2008] NSW ADT 263 at [40]). A person responsible is not authorised to make decisions about the withdrawal, cessation or non-provision of life-sustaining treatment.
In circumstances in which a guardian is appointed under the Guardianship Act with a medical and dental consent function, unless they also have a health care function, they do not have the authority to decide to withdraw life-sustaining treatment for the person under guardianship. However, a guardian appointed with a health care function does have the authority to make decisions in connection with health care that include decisions to withdraw life-sustaining treatment (FI v Public Guardian [2008] NSW ADT 263 at [51]).
After considering the oral and written evidence presented, I am satisfied that a guardianship order should continue for QZS and that the guardian should have authority to make decisions about her healthcare.
This will enable the guardian to investigate whether or not QZS can receive injections for her macular degeneration at the aged care facility or whether there is another appropriate form of treatment for the condition. The guardian will also be able to ensure that QZS's urinary tract infections are appropriately monitored and treated.
The guardian will also, if necessary, and after consulting all family members, be able to make decisions about the withdrawal or withholding of life-sustaining treatment for QZS.
I did not include a medical and dental consent function on the recommendation of Ms F given that QZS does not take any major medications. I note that QZS has a number of family members who may be considered as her 'Persons Responsible' if consent to treatment is required (as opposed to the withholding of treatment). If there is conflict within the family about such treatment, an application may be made to the Tribunal either for the guardianship order to be reviewed and the functions varied, or for consent to the treatment to be provided by the Tribunal.
There is no ongoing need for an accommodation or services function given that QZS's children are now in agreement that she should remain at the aged care facility. Discussions about what room she should occupy within the facility can be discussed with management on an informal basis.

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Judgment (9 paragraphs)

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