IF v IG

The Applicable Legislation 13The Tribunal must review a guardianship order at the expiration of the period for which the order has effect (s 25(2) Guardianship Act) unless the Tribunal orders otherwise at the time the order is made (s 16(2A)). Upon making the order appointing a guardian for Ms NIQ for six months the Tribunal made no order excluding the requirement to review the order and accordingly the order was listed for a review hearing by Notice issued to the parties on 16 July 2014. 14The Tribunal is guided in what it must determine and how during a review of guardianship by the decision of the then Administrative Decision Tribunal ("the ADT") in IF v IG [2004] NSWADTAP 3 which provides: 20 There is no provision in the Guardianship Act 1987 which expressly stipulates the matters which the Guardianship Tribunal is to take into account when performing its review function under s 25(2)(b), and when determining which of its powers in s 25C(2) should be exercised. By implication the matters which must be considered are those set out in s 14. That section describes the circumstances in which the Guardianship Tribunal may make a guardianship order. Section 14 states: (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 the 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. 22 The expression a "person in need of a guardian", which is used in s 14(1), is defined in s 3 of the Guardianship Act 1987 to mean "a person who, because of a disability, is totally or partially incapable of managing his or her person". In s 3(2) of that Act, a "person who has a disability" is defined in the following terms: In this Act, a reference to a person who has a disability is a reference to a person: (a) who is intellectually, physically, psychologically or sensorily disabled, (b) who is of advanced age, (c) who is a mentally ill person within the meaning of Chapter 3 of the Mental Health Act 1990, or (d) who is otherwise disabled, and who, 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[...] 24 The Guardianship Tribunal must undertake a two-step process when exercising its powers under s 14 of the Guardianship Act 1987 to make, or to decline to make, a guardianship order. First, the Guardianship Tribunal must satisfy itself whether the person in respect of whom an application is made, or whose guardianship order is being reviewed, is a "person in need of a guardian". As we have already noted, that expression is defined in s 3 of the Guardianship Act 1987. In order to determine whether a person is a "person in need of a guardian" the Guardianship Tribunal must consider two things: (1) whether the person has a disability and (2) whether because of that disability the person is totally or partially incapable of managing his or her person. The determination of whether a person has a disability is governed by s 3(2) of the Guardianship Act 1987. The person must satisfy one or more of paragraphs (a) to (d) of s 3(2) and, by virtue of that fact (e.g. being a person who is intellectually disabled), be restricted in one or more major life activities to such an extent that he or she requires supervision or social habilitation. 25 If the Guardianship Tribunal is satisfied that a person meets the statutory definition of "a person in need of a guardian" it must undertake the second step in the process of determining whether to appoint a guardian. If the Guardianship Tribunal is not satisfied that a person meets the statutory definition of a "person in need of a guardian" there is no point in undertaking the second step in the process for the Tribunal cannot make a guardianship order in those circumstances. Thus, a finding by the Guardianship Tribunal that a person is a "person in need of a guardian" is a pre-condition to engaging in the second step in the process. 26 When undertaking the second step in the process required by s 14 of the Guardianship Act 1987 the Guardianship Tribunal is required to exercise a structured discretion. The Guardianship Tribunal must consider all of the matters set out in s 14(2) before exercising its discretion. The use of the words "shall have regard to" in s 14(2) is a clear indication of the legislative intent that the Guardianship Tribunal is obliged to consider all of the matters set out in that sub-section before exercising its discretionary power. Those matters have no hierarchy or weighting. Each is a mandatory consideration. The Guardianship Tribunal must determine in every case whether one or more of those considerations will be given greater weight than others. Whilst each is a mandatory consideration, in some cases there may be no evidence of one or more of them. In such circumstances it may be prudent for the Guardianship Tribunal to record that fact[...] 28 In many cases it will be necessary for the Guardianship Tribunal to undertake a balancing exercise for its consideration of some of the matters in s 14(2), as well as any other relevant matters, may cause it to believe that a guardianship order should be made, whilst consideration of other matters may cause it to hold a contrary opinion. When undertaking such a balancing exercise the Guardianship Tribunal may be guided by one or more of the general principles that underpin the legislation which are set out in s 4 of the Guardianship Act 1987. 15The provisions of the Guardianship Act referred to in the decision of the former ADT remain unamended as at the time of these proceedings. 16It is useful to replicate the principles contained in s 4 of the Guardianship Act referred to later in these reasons: The Tribunal must also have regard to the principles in section 4 of the Guardianship Act, which include: (a) the welfare and interests of such persons should be given paramount consideration, (b) the freedom of decision and freedom of action of such persons should be restricted as little as possible, (c) such persons should be encouraged, as far as possible, to live a normal life in the community, (d) the views of such persons in relation to the exercise of those functions should be taken into consideration, (e) the importance of preserving the family relationships and the cultural and linguistic environments of such persons should be recognised, (f) such persons should be encouraged, as far as possible, to be self-reliant in matters relating to their personal, domestic and financial affairs, (g) such persons should be protected from neglect, abuse and exploitation.

The Evidence before the Tribunal 17The Tribunal had before it only limited documentary evidence consisting of the Tribunal's (including the former Guardianship Tribunal's) previous orders and reasons for decision pertaining to Ms NIQ, the hearing report compiled for the hearing by the Tribunal's officer dated 28 July 2014, a report compiled for the hearing by the representative from the Public Guardian received by the Tribunal on 28 July 2014, a Health Professional Report Form completed by Dr Y, General Practitioner, dated 30 July 2014 and a letter authored by Dr Y dated 1 August 2014. The parties to the proceedings confirmed at the commencement of the hearing that they were in possession of the documents before the Tribunal. No documentary evidence was tendered at the hearing. 18The majority of the evidence of relevance to the Tribunal's determination was oral evidence provided by participants to the hearing and which is now summarised.

Ms NIQ and Mr HWT 19Ms NIQ attended the hearing for its duration accompanied by her partner Mr HWT. The Tribunal notes that this was the first hearing in which Ms NIQ had participated in person since the first hearing before the former Guardianship Tribunal conducted on 8 August 2013. 20Ms NIQ expressed her clear view throughout the hearing that she did not believe the guardianship order had served any purpose and asserted that she was capable of making her own life decisions. Whilst conceding that she might have a level of disability, she stated that it did not impact upon her decision making ability. With reference to the findings of the previous Tribunal that she has a psychological disability, Ms NIQ said she felt she no longer suffered the effects of depression, that she had stopped taking her medication for depression as it "did nothing," and that her general practitioner, Dr Y, "didn't mind" that she had stopped her medication. 21When questioned as to her pregnancy, Ms NIQ denied any suggestion that she had not taken appropriate steps to seek assistance to guide her through pregnancy and that she had been neglectful in attending to follow up visits with various medical specialists. Ms NIQ noted that she had seen Dr Y within the last week. In this regard, the Tribunal notes the contents of Dr Y's letter provided for the hearing dated 1 August 2014 which states: [Ms NIQ] presented today with her partner. She has been receiving antenatal care at [a public hospital] which I have confirmed. She attended on 20/5, 19/6 and on 15/7. 22She conceded that accommodation for her and her partner had not been stable in recent months but advised that they had made an application for assistance with Housing NSW and in the interim they were seeking a private rental option. 23During the course of evidence from her mother as to the various healthcare and accommodation events she believed needed to occur in the months ahead, Ms NIQ stated that she "did not mind assistance from her family but I want to make my own decisions." 24Mr HWT opined that he and Ms NIQ were doing well without any direct involvement of a guardian, that he saw no point in continuing the order stating that "we make our own arrangements, we can do our own things."

Mr CDS and Mrs BEH 25Mrs BEH drew the Tribunal's attention to the previous findings of the Tribunal that Ms NIQ has a disability and submitted that there was no new significant evidence to suggest to the contrary. The Tribunal noted that it did have a report provided by Dr Y which indicated that whilst Ms NIQ has a diagnosis of depression, Dr Y states that "at last meeting [27 February 2014] no signs of depression." Mrs BEH's representative, Mr NGN, submitted that the Tribunal should afford Dr Y's report little weight given she was not available during the hearing to address her evidence. 26In terms of personal healthcare, Mrs BEH opined that Ms NIQ had shown she was incompetent of taking appropriate steps to ensure her health and well-being by not engaging up in follow up visits with specialists with whom she has previously engaged to treat her "psychological problems" and also a pituitary tumour. 27Mr NGN, on behalf of Mr CDS and Mrs BEH, submitted that Ms NIQ is "in a worse position than at the last hearing - she is now pregnant; she is not attending school or TAFE; is not attending specialist appointments; has move three (3) times and is couch-surfing. [Mr NGN] stated that [Mr CDS] and [Mrs BEH] accepted that [Ms NIQ] is now a young woman and that she is having a baby and therefore they "want to offer her their assistance." 28Mr NGN argued that "our view is that a guardianship order would give us a right." He stated that the order in favour of the Public Guardian had curtailed Ms NIQ's parents' rights. He suggested that a guardianship order in favour of family member(s) "would allow us to pick her up and take her to Housing and alike" and would provide backing to their offer to assist Ms NIQ and take her to medical appointments. When the Tribunal questioned Mr NGN as to why the assistance he referred to could not occur without the "backing of a guardianship order," Mr NGN indicated that the Tribunal should contemplate granting coercive powers of guardianship, particularly in relation to medical decision making. He suggested that this could be a least restrictive approach when compared to the possible ramifications for Ms NIQ and her baby if she did not engage in appropriate healthcare treatment whilst pregnant and subsequently, suggesting "DOCS could become involved." 29In evidence on who the Tribunal should be minded to appoint if it was determined to continue the guardianship order, Mrs BEH indicated that she would rather see the order lapse than the Public Guardian continue in the role asserting that the Public Guardian "has not tried hard enough" and the appointment of family would have far greater success. Mrs BEH also opined that the appointment of the Public Guardian had resulted in limited contact between Ms NIQ and her siblings. Mr NGN submitted that it was open to the Tribunal to conclude that Ms NIQ's parents could be appointed as her joint guardian's or perhaps Mr CDS solely.

The representative from the Public Guardian 30The Tribunal was referred to the representative from the Public Guardian's report to the Tribunal for the purposes of the hearing which summarised the Public Guardian's activities as guardian for the representative from the Public Guardian since appointment. The representative from the Public Guardian reported that no decisions had been made during the course of the order and concluded her documentary report by stating: The Public Guardian believes that this order has not been workable due to [Ms NIQ's] ability to be independent. [Ms NIQ] has requested support only when forced on her...the Public Guardian recommends that the functions of Accommodation, Healthcare, Medical/Dental Consent, Legal and Services [entirety of order] lapse. 31Significant details contained in the representative from the Public Guardian's report include that: (1)Whilst it was known that Ms NIQ has changed accommodation three (3) times during the period of the order, the Public Guardian had not been required to make any accommodation decisions; (2)The Public Guardian visited Ms NIQ at her then home, but despite providing notification, Ms NIQ was not home upon attendance; (3)The Public Guardian had engaged with Dr Y, general practitioner, who is of the view that Ms NIQ was able to make medical decisions for herself and has been attending to appropriate antenatal consultations. 32At the hearing, the representative from the Public Guardian advised the Tribunal that she had had contact with Mrs BEH during the period of the order. She advised that Mrs BEH had indicated that she was having ongoing social contact with her daughter and at times kept the representative from the Public Guardian appraised of Ms NIQ's accommodation changes. The representative from the Public Guardian recounted that at one point Mrs BEH requested that steps be taken for Ms NIQ to reside with Mrs BEH and her husband. The representative from the Public Guardian said that she advised Mrs BEH that this was impracticable as "Ms NIQ would vote with her feet" as she did not wish to return to the family home. 33The representative from the Public Guardian noted that she had made contact with regional public high school as Ms NIQ had suggested she had enrolled and was taking classes there to further her education. The representative from the Public Guardian contacted the school which advised that Ms NIQ had enrolled but there was no record of her having attended any classes. 34To continue the order would be unworkable was the assertion of the representative from the Public Guardian stating that: She [Ms NIQ] is independent, choosing her own doctor and her own accommodation with her feet - you cannot force her to attend any doctors or to change accommodation.

Mr OFK (Separate Representative) 35Mr OFK suggested to the Tribunal that he "did not see how the Tribunal could get over the hurdle" of finding that Ms NIQ is a person in need of a guardian within the meaning of the Guardianship Act. Whilst acknowledging that the Tribunal previously determined that such a finding could be made, Mr OFK said that the finding was not based upon any firm diagnosis as to disability. Even if a firm diagnosis of a psychological condition such as bipolar disorder could be made, Mr OFK asserted that on the current evidence before the Tribunal the only conclusion that could possibly be reached is that Ms NIQ, in the view of many, might be making poor decisions, but this alone does not support a conclusion that she is incapable of making major life decisions. Mr OFK described Ms NIQ as "making decisions her family do not like but she is making them." 36In addressing concerns raised by Mrs BEH that Ms NIQ was not attending to appropriate medical assessments and treatment, Mr OFK stated that it was clear that Ms NIQ had attended to a number of medical consultations but perhaps not as many as would be optimal. He noted that she had however seemingly been attending to appropriate antenatal appointments. He argued that to suggest a guardianship order could improve this aspect of Ms NIQ's current circumstances could only be effective if coercive powers of guardianship were granted. How else could Ms NIQ be made to go to medical appointments if she did not wish to? By use of force involving perhaps police or ambulance officers? Mr OFK submitted there was no evidence before the Tribunal suggesting that the application of any coercive powers was warranted. 37Mr OFK said that Ms NIQ had been living independently for many months now as what many would describe as a normal life in the community for young woman of her age. He stated that he understood that many of the decisions she had made were "perhaps not some of the best decisions" and empathised as to how Ms NIQ's parents would indeed be concerned by much of her decision making. However, he submitted that her decisions were not such that they could be described as unreasonable decisions for a young woman in Ms NIQ's circumstances. Mr OFK suggested that without the spectre that Ms NIQ may have some form of disability, there would be no mechanism to challenge the decisions she has been making. 38As to Mr CDS and Mrs BEHs submissions, through their representative, that their daughter requires significant assistance, particular during and subsequent to her forthcoming birth, Mr OFK advised of his agreement with this position. But he asserted that all of the assistance Mr CDS and Mrs BEH stated that they wished to provide could occur without the need for a guardianship order.

The Tribunal's consideration of the evidence 39The position put to the Tribunal by Mr CDS and Mrs BEH with the assistance of their representative, Mr NGN, was clear. Their daughter was the subject of vulnerabilities and was facing what they perceive to be a difficult period in her life. A young mother with limited financial means and unstable accommodation. Up until Ms NIQ's relatively recent departure from the family home, they had been responsible for, and had provided, a caring and appropriate environment of protection for their daughter. She is no longer living with them and is making decisions about her accommodation, her healthcare, and her future generally. Mr CDS and Mrs BEH assert that many of those decisions have been poor decisions. 40The matter for the Tribunal to determine was whether Ms NIQ continues to have a disability, and if so, does that disability impact upon her decision making to the extent that upon consideration of ss 4 and 14 of the Guardianship Act the guardianship order should continue. The Tribunal notes and concurs with the position put by Mr OFK that but for the spectre that Ms NIQ has a disability, despite Mr CDS and Mrs BEH's understandable and reasonable concerns, there would be little they could do as parents to prevent their daughter from making the decisions she is given that she has attained majority. 41Whilst there were contrary submissions before the Tribunal as to whether the Tribunal should conclude that Ms NIQ continues to have a disability, the majority of the hearing was focused upon the utility of an order. What was it that could not be achieved in the best interests of Ms NIQ without the continuation of the guardianship order? 42As stated previously, in determining whether the Tribunal should continue the order, the Tribunal must consider the evidence in the context of the considerations outlined in s 14(2), and must conduct that evaluation whilst also being mindful of the principles contained in s 4 of the Guardianship Act. Whilst there was no suggestion that the evidence before the Tribunal required a consideration relating to the preservation of Ms NIQ's cultural and linguistic environments, there was ample evidence requiring the Tribunal to have regard to: Ms NIQ's and Mr HWT's views; the preservation of Ms NIQ's existing family relationships; and the practicability of services being provided to Ms NIQ without he continuation of the order. 43The views of Ms NIQ and Mr HWT in relation to the proceedings was clear. They saw no purpose in the continuation of the order. Ms NIQ's final submission to the Tribunal before concluding the hearing was "I just want all of this dropped". The Tribunal was impressed by the clarity of Ms NIQ's evidence and submissions during the hearing, a hearing which was undoubtedly a stressful and challenging event for her. There was no indication that Ms NIQ did not appreciate the purpose of the hearing or the ramifications of the Tribunal's orders, quite the contrary. The Tribunal accordingly attributed considerable weight in reaching its determination to the views of Ms NIQ. 44Turning to the issue of preserving Ms NIQ's existing family relationships, the Tribunal must be mindful of the preservation of both Ms NIQ's relationship with her mother and father, her siblings and extended family, as well as the relationship she has with Mr HWT with whom she is about to have a child. The Tribunal concluded that consideration of the evidence on this issue weighed in favour of concluding that the order should lapse. Mrs BEH gave evidence that she believed that the appointment of the Public Guardian as Ms NIQ's guardian had caused detriment to Ms NIQ's relationship with her family. Whilst it is unclear to the Tribunal as to how this has occurred given the minimal role the Public Guardian has seemingly played in Ms NIQ's life, the Tribunal accepted Mrs BEH's evidence of the perception that she and other members had of the impact of the order. 45The alternative to appointing the Public Guardian is to appoint a family member or friend of Ms NIQ. Mr CDS and Mrs BEH sought appointment to such role either jointly or solely. The Tribunal concluded that such an appointment would most probably prove to be detrimental to Ms NIQ's relationship with her family, whether family be defined as consisting of the family with whom she previously resided, or the relationship she now has with Mr HWT. Ms NIQ has asserted her will to make independent decisions since ceasing residing in the family home. There was no evidence before the Tribunal suggesting that this desire for independence would change. As there was clear evidence that Mr CDS and Mrs BEH would make decidedly different decisions for Ms NIQ than she would make for herself, to the extent that they sought coercive powers from the Tribunal in the course of the hearing, their appointment as her guardian would most likely impact negatively upon the relationship they currently have. It also would have the potential to impact negatively upon the relationship Ms NIQ has with Mr HWT. 46The most significant issue which persuaded the Tribunal to lapse the guardianship order however was the requirement to consider the practicability of services to be provided to Ms NIQ without the need for an order, particularly when viewed through the prism of the principles enunciated in s 4 of the Guardianship Act. 47The Tribunal in appointing the Public Guardian as Ms NIQ's guardian in February 2014 stated: The Tribunal was of the view that a clear decision maker was required in order for [Ms NIQ] to receive the services she needs and to stabilise her accommodation, schooling and health situation. 48Upon reviewing the order, the Tribunal now has the benefit of examining the success or otherwise of the previous Tribunal's intentions for making the guardianship order. That examination allows for a conclusion that the order has proved largely futile. This is a conclusion agreed upon by all parties to the hearing but for different reasons. Mrs BEH asserted that the order had proved futile because the Public Guardian had not done enough with the authority they had been granted. The Public Guardian however suggested that it was Ms NIQ's independence and ability to make decisions which were not unreasonable which had in fact rendered the order futile, a position support by Ms NIQ's separate representative, Mr OFK. 49The Tribunal decided that unless it continued the order with additional coercive authorities, irrespective of whether the appointment of the Public Guardian was continued or a private guardian or guardians were substituted, the order would most likely remain futile. This is because the evidence indicates that all the services Ms NIQ requires, whether this is assistance with accommodation of healthcare assessment and treatment, can all be provided without the need for a guardianship order. The real issue is whether Ms NIQ accepts such assistance. 50That leaves the issue of whether the Tribunal should continue the order but provide powers of coercion related to accommodation and/ or medical treatment. Mr NGN, on behalf of Mr CDS and Mrs BEH, submitted that the evidence supported a conclusion that coercive powers were at least warranted in relation to Ms NIQ's future medical assessment and treatment. This position was rejected by Ms NIQ's separate representative, Mr OFK. The Tribunal also rejects the proposition that the evidence supports a conclusion that coercive powers of guardianship are appropriate. 51Given their draconian nature, in the absence of requisite evidence, the Tribunal is loath to authorise the use of force by a guardian to enforce a substitute decision which is made by the guardian but not supported by the person themselves. Only in circumstances whereby a person's decision making incapacity is such that it results in them making decisions which expose them to neglect, abuse or exploitation (or they are incapable of making important decisions and others make decisions on their behalf which cause neglect, abuse or exploitation) does the Tribunal contemplate the application of coercive authority. There was insufficient evidence to suggest that Ms NIQ was making such unreasonable decisions, or that she was overtly influenced, and negatively, in her decision making by others, to authorise the application of coercive guardianship powers. 52In examining the need for coercive powers of guardianship to provide services to a person, the Tribunal must conduct such examination being mindful of the principles provided in s 4 of the Guardianship Act. There was no evidence of the degree of self-neglect or unreasonable decision making on the part of Ms NIQ that could invoke the Tribunal's requirement to protect Ms NIQ from neglect, abuse or exploitation (s 4(g)) when compared to the Tribunal's duty to : restrict as little as possible Ms NIQs freedom of action and freedom or decision (s 4(b)); take account of Ms NIQ's views (s 4 (d)); and to encourage, as far as possible, Ms NIQ to be self-reliant in matters relating to their personal, domestic and financial affairs (s 4(f)). 53Having concluded that there was no justification to impose coercive authorities and that to continue the order would be futile as all services can otherwise be provided to Ms NIQ without an order, the Tribunal determined that the guardianship order should lapse. Given this conclusion the Tribunal felt no requirement to make any final determination as to whether Ms NIQ continues to have a disability as defined in the Guardianship Act. Even if the Tribunal were to definitively conclude that Ms NIQ continues to have a disability as previously determined by the Tribunal, the Tribunal is not satisfied that it should renew the order as the evidence does not support an ongoing need for an order having evaluated the evidence available. Similarly, given this conclusion, the Tribunal was not required to determine who it would appoint as Ms NIQ's guardian if the order were to continue. 54It was evident that the review hearing was a stressful event for Ms NIQ and her parents. The Tribunal was particularly mindful of the concerns Mr CDS and Mrs BEH have for their daughter given the dramatic changes in her life since she ceased residing with them in the family home. However, Mr CDS and Mrs BEH must proceed to seek to alleviate their valid concerns for their daughter through attempting to provide her with assistance, care and nurturing within the framework of accepting their daughter's life decisions, or otherwise seeking to persuade her to make alternative decisions if they believe her decisions to be wrong decisions. This is undoubtedly the scenario many parents face in like circumstances where there is no suggestion that their child has a disability. In this matter, even if the Tribunal were to have categorically concluded that Ms NIQ continues to have a cognitive disability, it is not appropriate upon the evidence before the Tribunal that her right to self-determination and the right to experience the dignity of risk in decision making, should continue to be limited by means of a guardianship order.

Orders 55In these circumstances, the Tribunal orders that that the Guardianship order of 13 February 2014 pertaining to Ms NIQ is to lapse.

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: 22 October 2014