GZC [2021] NSWCATGD 25

The hearing

1. The hearing was held by telephone and the Tribunal spoke with HKC, Mr Z, Senior Behaviour Specialist with a service provider, Mr Y, group home manager, LDK and Ms X, support coordinator. The Tribunal was told that GZC was unable participate because of the extent of his disability. The Tribunal noted that this is consistent with the professional evidence about GZC's disability and was satisfied that it was consistent with his interests to proceed with the hearing without his involvement.
2. At the start of the hearing, the Tribunal noted that there was no current Behaviour Support Plan (BSP) although the order contains authority for the guardian to consent to the use of restrictive practices for GZC. The Tribunal had been given a report from Mr Z in which he explained that he was in the last stages of completing the BSP and that this had taken longer than expected because it required a comprehensive reworking. He anticipated that the new BSP would be completed within the next few weeks.
3. The Tribunal asked the participants if the hearing should be adjourned again to provide time for this to be completed so it could be considered as part of the review of the order. HKC preferred that the review proceed without another adjournment. Mr Z explained that the relevant information for the purposes of the review of the order, related to the restrictive practices in the BSP, which essentially remain unchanged from the previous BSP. Mr Y supported the review proceeding and not being adjourned because there were issues he wanted to raise regarding the suitability of the guardian. The Tribunal took these views into account, and decided to proceed with the hearing rather than adjourn again.

What did the Tribunal have to decide?

1. On reviewing the current guardianship order the Tribunal may renew, renew and vary the order or determine that the order is to lapse.
2. The questions to be considered by the Tribunal are:

• Is GZC 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 Tribunal make a further guardianship order and if so, what order should be made?
• Who should be the guardian?
• How long should the order last?

Is GZC someone for whom the Tribunal could make a further order because he continues to have a disability which prevents him from being able to make important life decisions?

1. Section 14 of the Guardianship Act 1987 (NSW) 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": Guardianship 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 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: Guardianship Act, s 3(2).
2. When the previous order was made, the Tribunal was satisfied that GZC was a person who, because of a disability is totally incapable of managing his person, and this prevents him from making important life decisions. There is no new evidence before the Tribunal which conflicts with this and the hearing participants all agreed that this remains the case. The Tribunal was satisfied that it could make a further guardianship order for GZC if necessary.

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

1. 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; 3. the practicability of services being provided to the person without the need for the making of such an order.
2. 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 is guided by the principles that are set out in s 4 of the Guardianship Act (see IF v IG [2004] NSWADTAP 3).
3. As noted above, Mr Z's report to the Tribunal indicates that he is in the process of completing a comprehensive review of the BSP. He noted that previous reviews had been more limited in scope. He anticipated that he would have the BSP completed in the next few days and he will give it to HKC for her consideration. He said that the restrictive practices will remain largely unchanged, however, including GZC's regular medications (Sertraline and Seroquel) which are regarded as chemical restraint because they are prescribed primarily for behaviour management. GZC has no prn medications prescribed and escalations in his behaviour are addressed through careful management. Environmental restraint continues to involve restricting his access to the kitchen of his group home.
4. Based on this evidence, although there was no BSP to consider, the Tribunal was satisfied that there is a need for a guardian to provide consent to restrictive practices for GZC. Although authority to consent to a BSP is often considered to be included in the authority to make decisions about a person's "services", in GZC's case the guardianship order does not otherwise need to include a "services" function because HKC can make those decisions for him as his National Disability Insurance Scheme nominee. On this basis, to ensure that there is no confusion about who is able to consent to the BSP, the Tribunal specifically included this authority in the guardianship order.
5. GZC continues to need someone to make decisions on his behalf about his health care and medical and dental treatment. HKC said that she is asked to consent to changes in her brother's medications and also makes decisions about other health services, such as podiatry. She saw no problem with this continuing.
6. Mr Y said that whilst staff do contact HKC regarding major health issues, this is not the usual practice in relation to more minor matters. He said that GZC's medications are stable and have been reducing over the last couple of years. However Mr Y expressed concerns about whether HKC has a sound understanding of her brother and his needs. This will be discussed in more detail later in these reasons for decision. Regardless of whether HKC continues to be a suitable guardian for her brother, the evidence indicated that he continues to need a guardian to make decisions on his behalf about a range of matters.
7. GZC's views could not be determined, and there was no indication that a further guardianship order would conflict in any way with his family relationships or his cultural and linguistic background.
8. The Tribunal was therefore satisfied that a further guardianship order should be made and the guardian given authority to make decisions about GZC's health care, behaviour support, the use of restrictive practices (environmental and chemical restraint) subject to the conditions set out in the order, and to consent to his medical and dental treatment.

Who should be appointed as the guardian?

1. The Tribunal has previously decided that HKC meets the requirements of the Guardianship Act and may be appointed as guardian for GZC.
2. In deciding whether a person is able to undertake the role of guardian, the Tribunal must consider whether the proposed guardian is able, having regard to the circumstances, to exercise the functions in accordance with the principles set out in s 4 of the Guardianship Act.
3. In P v D1 & Ors [2011] NSWSC 257 the Supreme Court noted the importance of a proposed guardian being able to demonstrate insight and explain plans for how to act as guardian objectively and without conflict of interest.
4. In W v G [2003] NSWSC 1170 at [25], the Supreme Court held that it is not enough that the person be willing, reliable and responsible, but that in addition to this, their appointment will result in the policy considerations and principles set forth in the Act being given effect.
5. HKC wanted to remain as guardian for her brother. She is deeply committed to him and wants to make sure that he is safe and healthy.
6. Mr Y said that HKC has asked staff to do certain things with GZC which indicates that she does not have a good understanding of his disability or of his needs. For example, she has asked staff to take him to church, even though he does not have the skills to cope with an environment of this kind and it would likely cause him considerable distress and agitation.
7. Mr Y said that there is an ongoing issue in relation to GZC receiving a vaccination for the COVID-19 virus. Mr Y said that they started the process to have the residents vaccinated in March 2021, and all the other residents in the group home have been vaccinated. GZC has been "cleared" by his GP, Dr W, to have the AstraZeneca vaccine. HKC was given this information some months ago. HKC initially signed the consent form and then withdrew it. Mr Y said that he has had at least one very lengthy conversation with HKC about this recently, but there has been no progress. He felt this example raises concerns about whether HKC is able to make decisions in GZC's interests.
8. HKC told the Tribunal that she is very worried and has constant thoughts in her head about whether to agree to her brother being vaccinated. She has already lost her parents to cancer and could not bear it if her brother got a blood clot and died because of the vaccine. She does not want him to experience anything which is a "risk to his body" and she considers that a vaccine is such a risk.
9. The Tribunal asked HKC whether she had spoken with her brother's doctor about this issue. She said that she has asked staff at the group home to give her Dr W's contact details but that they had not done so. Mr Y said that to the best of his knowledge HKC had not asked staff for Dr W's contact details, and she had certainly not mentioned this in the 45-minute conversation he had with her recently. There would be absolutely no problem with her having these details and in any event HKC could find Dr W's details for herself if she wished. HKC did not press this further. She added that she would not only want to talk with Dr W, but also to her GP, whom she trusted, although she agreed that her doctor had never treated GZC.
10. This evidence did cause some concerns for the Tribunal in relation to HKC's suitability as guardian. The Tribunal recognises that there is a confusion and concern in the general community about COVID-19 vaccination and in particular the risks posed by the AstraZeneca vaccine. Many people are unsure whether to go ahead with vaccination for themselves, and no doubt others are quite clear that they do not want to have that particular vaccine, or, possibly any vaccine at all. A person who is not subject to a guardianship order can make their own decision about how they wish to proceed with this, which might include doing nothing at all. However a higher standard is expected of someone who is appointed as a guardian for another person. For those people, a guardian has been appointed to ensure that decisions are made when needed.
11. Section 32 of the Guardianship Act states that the objects of the provisions which provide for substitute consent to medical and dental treatment are: 1. to ensure that people are not deprived of necessary medical or dental treatment merely because they lack the capacity to consent to the carrying out of such treatment; and 2. to ensure that any medical or dental treatment that is carried out on such people is carried out for the purpose of promoting and maintaining their health and well-being.
12. In simple terms this means that GZC should not miss out on treatment which is necessary to promote and maintain his health and well-being, even though he is not able to consent to it on his own behalf.
13. Section 40 of the Guardianship Act provides that a person who is responsible for making a decision about a proposed medical or dental treatment for another person must take into account a number of important factors. These include the reason why the treatment is proposed, the alternative courses of treatment; the general nature and effect of each of those courses of treatment; the nature and degree of the significant risks (if any) of each of those courses of treatment, and the reasons for which it is proposed that any particular course of treatment should be carried out.
14. It is expected that information relevant to these factors should be obtained from a reliable source. This would usually, at least, be the practitioner or service provider who is proposing the treatment be given and might include other sources of information as well. Decision making of this kind will always involve balancing competing considerations - does the likely benefit of the treatment outweigh the likely risks - and how likely are those benefits or risks? At some point the balance will invariably shift from one approach to the other. The point at which the balance shifts will be different for different people but it is expected that a guardian charged with making important decisions for another person will engage with this weighing up process when making a decision.
15. From HKC's and Mr Y's evidence it appears that HKC had not understood her obligation as guardian to give thorough consideration to whether GZC should have the proposed treatment (COVID vaccination). If she has concerns and questions it is reasonable to expect that at the least she would speak with his treating doctor.
16. The evidence indicates that HKC's concern that her brother might die from the side effect of a blood clotting disorder is not based on a consideration of his particular risks, or predisposition to experiencing this possible side effect. Nor does it appear that she has taken account of the (increasingly likely) risk to him of contracting COVID-19 and any of the possible consequences of this. Nor does it appear that she has given any thought to whether there are alternative options (a different vaccination) which might address her concerns. Nor does it appear that she has had any regard to the possibility that her brother's life might be unnecessarily restricted if he remains unvaccinated. Instead she is not engaging with the issue and nothing is happening. Whilst ever this is the case, GZC continues to miss out on his right to have his guardian meet her obligation to make a decision about the proposed treatment with regard to the elements in s 40 of the Guardianship Act, bearing in mind the objects set out in s 32 and the principles of that Act.
17. The Tribunal does not doubt that in other respects HKC is a suitable person to be guardian for her brother. She feels deeply for him and presumably they have compatible personalities. There is no indication of a conflict of interest and she confirmed she is willing to be his guardian. However the issues above do raise questions about her ability to undertake the role and concerns that GZC may be disadvantaged as a result.
18. On balance, the Tribunal considered that it was consistent with GZC's interests and welfare and also consistent with the principle of preserving his family relationships, to reappoint HKC as guardian, now her role and obligations as guardian for GZC have been clarified. This will provide her with a further opportunity to meet these obligations, in relation to the issue of COVID-19 vaccination, and any other issues which arise in the short term.
19. On the basis of this evidence, with the reservations explained above, the Tribunal was satisfied that HKC meets the requirements to be appointed as the private guardian for GZC.

How long should the order last?

1. On review, a guardianship order can be renewed for a period of up to three years from the date on which it was made. On this occasion, the Tribunal to make an order for one month only. This will provide an opportunity for HKC to engage with the issue and make a decision about whether her brother should have a COVID-19 vaccination and will also mean that the Tribunal will have a further opportunity to read and consider the new BSP before making a longer guardianship order.
2. The order will be reviewed again at the end of this period and it is expected that the guardian will be able to provide an explanation of any decisions she has made, and the basis on which they have been made. It is also expected that the Tribunal will be sent a copy of the new BSP prior to the hearing.

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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: 24 May 2022