IF v IG

The hearing

1. The hearing was conducted in Liverpool and the Tribunal spoke by telephone to Ms UMQ and Ms Lauren Hirst from the Public Guardian. The Tribunal had been advised that a relative of Mr TQX, Ms BZH, would be available on her mobile telephone number to speak with the Tribunal. However, the Tribunal was not able to contact her after several attempts. The Tribunal confirmed the telephone number on its records with Ms UMQ and was satisfied that this was the correct number.
2. The Tribunal was advised by Ms UMQ that Mr TQX would not be able to participate in the hearing because of the extent of his disability. The Tribunal noted the evidence regarding the extent of his disability. Ms Hirst confirmed that in the circumstances, the Public Guardian had no difficulty proceeding without Mr TQX's involvement. The Tribunal was satisfied that it was in Mr TQX's interest that the matter proceeds without his involvement.
3. At the end of these Reasons for Decision are lists of the parties to the application. [Appendix removed for publication.]

What did the Tribunal have to decide?

1. The questions which had to be decided by the Tribunal were:

• Is Mr TQX someone for whom the Tribunal could make an order because he has a disability which prevents him 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 Mr TQX someone for whom the Tribunal could make an order because he has a disability which prevents him from being able to make important life decisions?

1. Section 14 of the Guardianship Act 1987 (NSW) (the Act) 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" (s 3(1) of the Act). 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 (s 3(2) of the Act).
2. The Tribunal considered a Health Professional Report from a support worker with ADHC dated 18 September 2016, and a letter from his general practitioner dated 14 August 2016. These provide a consistent view that Mr TQX is significantly impaired by his intellectual disability and also has moderate anxiety and possible early onset dementia. Ms UMQ confirmed that Mr TQX operates well within his capacity. She was not sure about the diagnosis of dementia as Mr TQX has a very good memory, but nonetheless he is not capable of making significant decisions on his own behalf.
3. On the basis of the available evidence, the Tribunal is satisfied that Mr TQX has a disability which prevents him making important life decisions. He is a person for whom the Tribunal could make a guardianship order if necessary.

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

1. The Tribunal must consider all of the following matters set out in s 14(2) of the Act before exercising its discretion to make a guardianship order: 1. the views (if any) of: 1. the person, and 2. the person's spouse, and 3. the person's carer and 1. the importance of preserving the person's existing family relationships, and 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.
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). 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] NSWADTAP 3).
3. Ms UMQ said that Mr TQX has cousins - Ms BZH and Ms CAD - who visit him around Christmas time each year. He enjoys their visits and they stay for a reasonable period of time, however, they are not in contact at other times during the year. They have never been involved, or indicated a willingness to be involved in decisions regarding his health care or other matters.
4. She explained that Mr TQX takes his medications and is generally good with visits to the doctor if he knows them. He is not fond of being touched so they have a few strategies they use to make doctor's visits less stressful for him. He has a few medical conditions including dermatitis and some psoriasis, reflux, and hypothyroidism, and takes some medications and supplements. He takes Cipramil for his anxiety which the Tribunal notes is a major medication, and therefore requires consent from a person responsible or guardian if Mr TQX is unable to consent for himself.
5. Ms UMQ explained that Mr TQX's accommodation is stable and he is happy and fits in well. Although the management of the group home will transfer from ADHC to a private provider in due course, there is no reason to think that this will mean Mr TQX must move.
6. Ms UMQ said that Mr TQX attends at a disability and support service provider three days a week, which he really enjoys. His continued participation is something which will need to be considered in relation to the NDIS. However, as he has no family involved with him, he is the last person in the group home to be engaged with the NDIS. It is her understanding that it has not been possible to get him past the "access" point.
7. To become a participant in the NDIS requires an access request from Mr TQX "or someone who is able to act on [his] behalf". (National Disability Insurance Scheme Act 2013 (Cth), s 18 (NDIS Act), and the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth), rule 2.1). The NDIS Operational Guideline - Gateway - Making an access request says that someone making an access request on behalf of another person must have "authority to sign" the request for the person as a guardian, person with parental responsibility for a child, agent or having otherwise been appointed as the person's representative.
8. In KCG [2014] NSWCATGD 7 at [32] and [34], the access request had been signed by a group home manager and the Special Counsel for the National Disability Insurance Agency (NDIA) said that, in practice, generally anyone can sign an access request on behalf of a prospective participant.
9. The Tribunal noted that, under the nominee provisions in the NDIS legislation, the NDIA could have appointed a nominee to represent Mr TQX in the development and periodical review of his participant's plan of supports. With the approval of the NDIA, a participant or their nominee may also manage a participant's NDIS funding. (NDIS Act, Parts 2 and 5, and National Disability Insurance Scheme (Nominees) Rules 2013 (Cth))
10. In KCG at [60]-[61], the Special Counsel for the NDIA told the Tribunal that no nominees had to date been appointed in the NSW and Victoria NDIS trial sites, though some had been appointed in Tasmania. Where a person lacked capacity to make planning decisions, the NDIA would enquire about the participant's wishes and other relevant facts and then make a decision about a plan.
11. In the absence of an involved family member or friend, there would presumably be no one for the NDIA to appoint as nominee for Mr TQX, even if the NDIA had pursued this course. In the circumstances, it was clear that Mr TQX currently needs a guardian to safeguard his rights and interests.
12. With Mr TQX having no family member or other advocate apart from paid service providers, the Tribunal saw a guardian as needed to make decisions and advocate for Mr TQX both through the NDIS eligibility and planning process and the parallel current process of ADHC tendering out its services to the non-government sector.
13. In relation to the NDIS, Mr TQX's first and second plans will be crucial to his ongoing interests and inclusion in the community. The first plan may be focussed on what a person needs "right now" and giving the person time to think about longer term needs and goals before the plan is reviewed in a year.
14. The Tribunal also decided that Mr TQX would benefit from a guardian who could make decisions regarding his health care and to consent to his medical and dental treatment, as he has a number of medical conditions which require ongoing management, and he is currently prescribed a major medication which requires the consent of a guardian, as he has no person responsible.
15. The Tribunal therefore decided to make a guardianship order and give the guardian authority to make decisions regarding Mr TQX's services, health care and consent to medical and dental treatment.

Who should be the guardian?

1. The Tribunal is not able to appoint the Public Guardian as a person's guardian if there is a private person who can be appointed (s 15(3) of the Act). It was unfortunate that the Tribunal was not able to make contact as arranged with Ms BZH, as she may have been willing to act as guardian for Mr TQX. However, without the opportunity to speak with her the Tribunal cannot be satisfied that she was either interested or suitable to be so appointed.
2. As there is no private person available to be appointed as guardian, the Tribunal appointed the Public Guardian.

How long should the order last?

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.
2. The Tribunal decided to make an order for 18 months because this will allow time for a plan to be made, and be reviewed at the end of the first 12 months. It is appropriate that the guardianship order then be reviewed.

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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: 16 March 2017