HZN [2018] NSWCATGD 31

The Hearing

1. At the end of this decision is the list of parties to the applications and those who attended the hearing. [Appendix removed for publication.] The hearing was conducted by the Tribunal by telephone.

HZN's request for legal assistance

1. At the commencement of the hearing, HZN told the Tribunal that she wished to get legal aid. She had commenced trying to contact Legal Aid on the previous Tuesday.
2. The Tribunal considered whether it should adjourn the hearing of the application for guardianship to enable HZN to obtain legal assistance.
3. The Tribunal considered the urgency of the application. The papers indicated that HZN had been in hospital contrary to her will. It had been recorded in the notes that she had been kept in hospital under the hospital's duty of care towards her. The notes made it clear that there were concerns about HZN's safety were she to be discharged from hospital in her current condition.
4. The Tribunal has a protective role and needs to act in the subject person's best interests. The Tribunal considered that it was in HZN's best interests to have her accommodation status clarified in order to preserve both her legal rights and her health.
5. In the circumstances the Tribunal determined that it should proceed to consider the guardianship application in HZN's best interests, even though she had been unable to obtain legal representation for the hearing.

Standing of the Applicant to bring the Application

1. The Applicant, NBH Operator Co Pty Ltd, as trustee of the NBH Operating Trust, known as the Northern Beaches Hospital, had just commenced operation in the months prior to the hearing concerning HZN. On 29 November 2018, the Tribunal determined that the Applicant should lodge submissions addressing the issue of whether NBH Operator Co Pty Ltd as trustee of the NBH Operating Trust had the necessary standing under s 9(1)(d) of the Guardianship Act 1987 (NSW) ("the Act") to make an application for guardianship in relation to HZN.
2. This matter is referred to as the issue of "standing".
3. Section 9 of the Act provides that: 9 Applications (1) An application for a guardianship order in respect of a person may be made to the Tribunal: (a) by the person, (b) [(Repealed)] (c) by the Public Guardian, or (d) by any person who, in the opinion of the Tribunal, has a genuine concern for the welfare of the person. …
4. Consequently, the Tribunal must determine whether the Applicant, NBH is a "person" within the meaning of s 9(1)(d) of the Act and has a genuine concern for the "welfare" of HZN.
5. The Tribunal was assisted by written submissions tendered by the Applicant drafted by a Special Counsel of a legal firm.

HZN's views on standing

1. At the hearing, HZN said that she had intended to get legal aid. She had started on the previous Tuesday trying to contact Legal Aid. She told the Tribunal that she did understand that the hospital was making the application for guardianship. They had not done this in the past. She said to the Tribunal that she did not really have a view about the hospital's standing to bring the application. She said to the Tribunal: "Do whatever you think."

The Applicant, NBH's submissions

1. The Applicant submitted that Northern Beaches Hospital, NBH, is a licenced private health facility pursuant to the Private Health Facilities Act 2007 (NSW) and a licensed private mental health facility pursuant to s 116 of the Mental Health Act 2007 (NSW).
2. NBH Operator Co Pty Ltd is the licensee of NBH. NBH Operator Co Pty Ltd is trustee of NBH Operating Trust and the operator of NBH.
3. NBH is a private health facility in a public/private sector partnership arrangement pursuant to a project deed between Health Administration Corporation, a corporation solely constituted under s 9 of the Health Administration Act 1982 (NSW) and Northern Sydney Local Health District and NBH Operator Co Pty Ltd in its capacity as trustee of the NBH Operating Trust and NBH Operator Co Pty Ltd.
4. The Applicant submitted that NBH operator is a "person" within the meaning of s 21 of the Interpretation Act 1987 (NSW) as it is a corporation. The Applicant submitted that NBH Operator Co Pty Ltd, being a corporation, is the legal person who represents the NBH Operating Trust. The Applicant submitted that there is nothing in the Act that indicates that the word "person" in s 9(1)(d) of the Act should take a meaning other than that provided for in the Interpretation Act.
5. The Applicant referred to previous decisions of the Tribunal relating to health corporations which had found that a health corporation was a "person" within the meaning of s 9 of the Act.
6. The Applicant referred to a recent decision in the Guardianship Division, EBI [2017] NSWCATGD 6, where the Tribunal decided that St Vincent's Hospital Sydney Limited had necessary standing to request a review of guardianship order and make a financial management application in respect of a patient.
7. The Applicant submitted that NBH, as a corporation, is a person within the meaning of the Act, just as the Tribunal determined St Vincent's Hospital Sydney Limited is a person.
8. The Tribunal agrees with the Applicant's submissions. The Tribunal accepts that NBH is a corporation and is, therefore, a person, as defined in s 21 of the Interpretation Act and s 9(1)(d) of the Act.

Does NBH have a genuine concern for the welfare of HZN?

1. The second issue for the Tribunal to determine is whether NBH has a genuine concern for HZN. In EBI, the Tribunal agreed with a decision in CJH v Department of Family and Community Services [2016] NSWCATAD 162, that the term "genuine concern" should be given its natural and ordinary meaning.
2. The Applicant submitted that a corporate body may have genuine concern. In Minister for Disability Services v People With a Disability Inc. (CSD) [2010] NSWADTAP 44 at [79], it was determined that a number of factors can be considered to determine the genuineness of an organisation's genuine concern, including the aims of that organisation and the type of activities it undertakes in pursuit of those aims.
3. In EBI, the Tribunal found that the provision of direct relief of sickness, suffering and distress by operating health facilities to serve the people of New South Wales are the activities and objectives consistent with the meaning of genuine concern for the welfare of the person, as envisaged by the Act.
4. It was within the Applicant's strategic objectives to deliver best quality integrated health services and clinical outcomes; integrated health care to public patients and compensable patients; provide health care; deliver an integrated public and private health care facility. It was also set out in the project deed for the Applicant that the NBH facility must ensure timely access to appropriate care for each person who presents to the facility.
5. The Tribunal accepted the Applicant's submissions that NBH's strategic objectives indicate that NBH has a genuine concern for a patient presenting to the facility and in this case, for HZN.
6. It follows that the Tribunal was satisfied that NBH has standing to apply for the appointment of a guardian for HZN.

What did Tribunal have to decide?

1. The questions which had to be decided by the Tribunal in relation to the application for guardianship were:

• Is HZN someone for whom the Tribunal could make an order because she has a disability which prevents her from being able to make important life decisions?
• Should the Tribunal make a guardianship order and if so, what order should be made?
• Who should be the guardian?
• How long should the order last?

Is HZN someone for whom the Tribunal could make an order because she has a disability which prevents her from being able to make important life decisions?

1. Section 14 of the Act sets out circumstances in which the Tribunal may make Guardianship orders 14 Tribunal may make guardianship orders (1) If, after conducting a hearing into any application made to it for a guardianship order in respect of a person, the Tribunal is satisfied that the person is a person in need of a guardian, it may make a guardianship order in respect of the person. (2) In considering whether or not to make a guardianship order in respect of a person, the Tribunal shall have regard to: (a) the views (if any) of: (i) the person, and (ii) the person's spouse, if any, if the relationship between the person and the spouse is close and continuing, and (iii) the person, if any, who has care of the person, (b) the importance of preserving the person's existing family relationships, (c) the importance of preserving the person's particular cultural and linguistic environments, and (d) the practicability of services being provided to the person without the need for the making of such an order.
2. The Tribunal notes that these matters have no hierarchy or weighting. Each is a mandatory consideration. However, the Tribunal must undertake a balancing exercise in its consideration of these matters in s 14(2) of the Act. When undertaking this task, the Tribunal may be guided by the principles that are set out in s 4 of the Act (see IF v IG [2004] NSW ADTAP 3).
3. Section 3 of the Act defines a person in need of a guardian as a person who, because of a disability, is totally or partially incapable of managing his or her person.

Reports

1. The Tribunal had before it the progress notes concerning HZN's admission to Public Hospital A and then the Northern Beaches Hospital. The notes record that HZN was seen by a number of health professionals including medical practitioners, nurses, occupational therapists and social workers during the course of her admissions.
2. Dr Z, Visiting Medical Officer in general medicine, was recorded as HZN's admitting doctor. Dr Z's report on 22 November 2018 stated that the HZN's current issue related to lack of mental capacity in the context of multifactorial encephalopathy. This was due to alcohol, previous intracranial haemorrhages and chronic liver disease. HZN was medically stable at that time.
3. Ms Y, occupational therapist, recorded on 22 November 2018, that HZN scored 17/30 in a MOCA. Ms Y noted that HZN had received extensive input from occupational therapists at Public Hospital A over the previous two years.
4. A report from Dr X, junior medical officer (JMO), on 22 November 2018, stated that it was Dr X's opinion that HZN lacked capacity and currently needed to be admitted under duty of care.
5. On 23 November 2018, Ms W, occupational therapist, reported that HZN was known to Ms W and the OT department from multiple previous admissions to Public Hospital A. In an Addenbrooke's Cognitive Examination III in December 2017, HZN had scored 60/100 and in November 2018 she had scored 45/100. Ms W noted that HZN was not acknowledging or demonstrating insight into her impairments and her history of "acopia" at home with frequent hospital admissions.
6. The Tribunal was satisfied that HZN does have a disability as defined in the Act being cognitive impairment as a result of intracranial haemorrhages, end-stage liver disease and alcohol use. Because of this disability, HZN does require some assistance and supervision. She is therefore a person for whom the Tribunal could make and order.

Is there a need for a Guardian to be appointed?

1. Section 14 of the Act requires that after conducting a hearing into a guardianship application that the Tribunal may make a guardianship order in respect of the person if the Tribunal is satisfied that the person is a person in need of a guardian.

Views of Dr X, JMO

1. At the hearing Dr X told the Tribunal that HZN was medically stable. However, she was not fit to be discharged because of her disabilities.

Views of the representative of the Applicant TAI

1. In her application, TAI stated that HZN is unable to make medical decisions or lifestyle decisions for herself. She was unable to communicate her wishes to the staff and did not at that time have capacity. She had not been made palliative and may require placement if she becomes medically stable. TAI considered that the matter was urgent because HZN could become palliative and urgent medical decisions could be required. If HZN were to improve, she would need someone to urgently make lifestyle decisions for her. TAI proposed that the Public Guardian be appointed as HZN's guardian.
2. At the hearing TAI told the Tribunal that the most pressing issue for a guardian would be to make decisions about HZN's accommodation.

Views of Dr V, Visiting Medical Officer psychiatrist

1. On 26 November 2018 Dr V, Visiting Medical Officer, psychiatrist, recorded a discussion with HZN's general practitioner, Dr U, whom HZN had been seeing since 2006. The note stated that HZN's main issue was alcohol use. She had experienced depression and anxiety and panic attacks, most of her admissions relate to alcohol and complications, she has had lots of medical admissions for liver failure, ascites, ICU admissions, falls, bleeding varices, many near death experiences. She had had recent intracranial haemorrhages. Dr U had not seen HZN since September 2018. She considered that HZN had under gone probably a slow cognitive decline but there had been no formal diagnoses. Most of the deterioration seemed to be in the last months to years. HZN had had recurrent admissions and lengthy times in hospital with not much time home in between. HZN tends to discharge herself against medical advice or abscond from the hospital to return home. Her partner had died recently. Dr U reported that HZN has a sister in New Zealand, a sister in London and a brother in South Africa. HZN had reported to Dr V that she has siblings but is not in contact with them.
2. At the hearing Dr V stated that HZN had made a reasonable recovery from her intracranial haemorrhages. However, HZN still had significant cognitive impairment as demonstrated by the Addenbrooke's Cognitive Examination and MOCA scores. HZN's memory scores had been quite low. In addition to her cognitive impairment HZN had alcohol dependence. As a result of these HZN was unable to understand information and weigh it up. She did not understand the implications of her conditions. HZN had not been treated regularly with psychotropic medications. She had had some olanzapine and haloperidol. Dr V told the Tribunal that HZN had become agitated while in hospital and had gone down to the road as though to leave the hospital. She had been coaxed back by the treating team.

Views of Ms Y occupational therapist

1. At the hearing Ms Y told the Tribunal that were HZN to return home, she would require Sydney Home Nursing to attend her place to provide her with medications and ensure that she took these. HZN would be eligible for a COMPAX package when she leaves hospital. More would be needed. It was unlikely that HZN would be eligible for a National Disability Insurance Scheme (NDIS) package because her disabilities were alcohol-related.

Views of HZN

1. HZN told the Tribunal that the chemist delivers her medications in a plastic box. There is no problem with this and she does not need any help.
2. HZN told the Tribunal that she did not need a guardian appointed. She said she wished to return home immediately.

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

1. When considering whether to make a guardianship order and what order should be made the Tribunal is required to take into account as far as possible the views of HZN as well as the importance of preserving her family relationships and cultural or linguistic environment. The Tribunal must also consider the practicability of services being provided to her in the absence of an order. The Tribunal is also required to act in accordance with the principles set out in s 4 of the Act which requires that the following additional matters be considered in respect of HZN: 1. her welfare and interests are to be given paramount consideration; 2. her freedom of decision and freedom of action should be restricted as little as possible; 3. she should be encouraged as far as possible to live a normal life in the community; 4. she should be encouraged as far as possible to be self-reliant in matters relating to her personal and domestic affairs; 5. she should be protected from neglect, abuse and exploitation. 6. The Tribunal considered these matters in relation to HZN's circumstances.
2. The Tribunal had heard that HZN's current living arrangements are not safe for her and that she likely required accommodation in a residential care facility. HZN had been clear with the Tribunal that she wished to return home immediately. The Tribunal had been told that on previous admissions to hospital HZN had absconded and discharged herself against medical advice. HZN had also been found close to the road while in hospital but have been persuaded to return to the hospital by treating staff. In these circumstances the Tribunal was satisfied that a guardian may require a power to authorise others to take HZN to a place; keep her there or return her there should she leave in order to enact an accommodation decision.
3. The Tribunal had heard that HZN is not able to take account of her health care needs. HZN does not have friends or family who would be available to be considered as the person responsible under the Act and able to make decisions about HZN's health care and medical and dental treatment when she is unable to do so herself.
4. HZN had told the Tribunal that she wished to obtain legal assistance in dealing with the application before the Tribunal. In this respect the Tribunal was satisfied that a guardian may require a legal services function in order for HZN to obtain legal assistance.
5. The Tribunal was satisfied that a guardian would need the functions of:

• accommodation with power to authorise others to take HZN to a place, keep her there or return her there should he leave it;
• health care;
• medical and dental consent;
• services; and
• legal services.

Who should be appointed guardian?

1. Section 17 of the Act sets out the requirements for a person who is appointed as guardian. 17 Guardians (1) A person shall not be appointed as the guardian of a person under guardianship unless the Tribunal is satisfied that: (a) the personality of the proposed guardian is generally compatible with that of the person under guardianship, (b) there is no undue conflict between the interests (particularly, the financial interests) of the proposed guardian and those of the person under guardianship, and (c) the proposed guardian is both willing and able to exercise the functions conferred or imposed by the proposed guardianship order. …
2. The Tribunal had heard that HZN may have siblings who live overseas. It appeared however that she is not in contact with them. The Tribunal had also heard that HZN's partner had died in the previous year. The Tribunal had heard that HZN does not have friends or family involved in her life who are available to be considered as guardians.
3. The Tribunal was satisfied that it should appoint the Public Guardian as HZN's guardian.

How long should the order be?

1. An initial guardianship order can be made for a period of up to one year from the date on which it was made. However, an order of up to three years can be made, if the person the subject of the order has permanent disabilities, is unlikely to become capable of managing his or her person and there is the need for an order longer than one year. The Tribunal needs to act least restrictively in considering the need for and the term of appointment of a guardian. The Tribunal decided to make an order for 30 days because during this time it will be necessary for the guardian to make immediate decisions about HZN's accommodation.
2. The Tribunal will review the need for the guardianship order at the end of 30 days.

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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: 01 February 2019