IJU [2019] NSWCATGD 21

Settlement

1. The Tribunal may, where it considers appropriate, use resolution processes to bring the parties to a settlement. There was no conflict in this matter.

What did the Tribunal have to decide?

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

• Is IJU 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 IJU 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 Guardianship Act 1987 (NSW) ("the Act") provides that the Tribunal may make a guardianship order for a person if it is satisfied that he/she 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. We note that IJU has been the subject of previous orders of this Tribunal in 2002 and 2008 when the Tribunal accepted evidence that she was unable to make decisions or provide informed consent because of her cognitive impairment.
3. The Tribunal received a copy of a document dated 14 June 2019 signed by Dr Z, IJU's general practitioner, in which it is stated that IJU has advanced dementia and severe cognitive impairment. Dr Z also states that IJU is unable to make any decisions due to her severe impairments.
4. We had before us a report from Dr Y, Geriatric Advanced Trainee at the Department of Geriatric Medicine at the public hospital, dated 8 November 2019. Dr Y states that: [IJU] has a background of advanced dementia, with previous cerebrovascular accidents. As a result she has poor baseline functioning, is bed bound and dependent of (sic) all activities of daily living. She is non-verbal, often mumbling quietly. She is resistive to nursing care. She is malnourished with a bodyweight of 21kg… … [IJU] was found to have developed bruising over her left hip with plain film imaging demonstrating an intertrochanteric femur fracture. It is unclear the mechanism of this injury or how it occurred. Staff deny trauma or fall however it is noted she was being transferred with a hoist. [Dr Y] concludes that: She ([IJU] likely has severe osteoporosis and is very frail; a non-operative approach to managing the fracture is not unreasonable given her pain is well managed. Mortality and complication rates following a fractured neck of femur are high, and her prognosis following this event is very guarded.
5. ZAC told us that she has known IJU for four years. In addition to having advanced dementia, IJU has an affective mood disorder. ZAC confirmed that IJU is unable to communicate and cannot make important life decisions
6. We are satisfied that IJU has disabilities, including advanced dementia, which prevents her making important life decisions. She is a person for whom the Tribunal could make a guardianship order.

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) 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] NSWADTAP 3).
3. In the application for the appointment of a guardian for IJU it is stated that a guardian should be appointed for her because she: …doesn't have the capacity to make decisions especially when clinical decisions are needed to be made. It is very important to have an authorised representative to make those decisions in (sic) behalf of [IJU].
4. We accepted the evidence before us that IJU was not able to present her views about the guardianship application as a result of the severity of her cognitive impairment.
5. During the hearing ZAC told us that IJU developed bruising on her left hip following which it was determined that she had a fracture. IJU was previously on antipsychotic medication but this is no longer the case. She is now only being administered medications for pain relief, however these include major medications.
6. ZAC said that decisions need to be made about IJU's funeral arrangements; her health care; palliative care and end of life decisions. She submitted that a guardian is required because IJU is incapable of making decisions and has no family.
7. We asked ZAC whether decisions will need to be made about any other aspects of IJU's life, such as her accommodation. She responded that it is intended that IJU will be cared for at the facility until she dies.
8. We were provided with a copy of a NSW Health Advance Care Directive (ACD) purporting to relate to IJU, although not signed by her. The document was 'witnessed by' Dr Z and ZAC on 3 August 2019.
9. In light of Dr Z's document dated 14 June 2019 referred to above, in which he states that IJU is unable to make any decisions due to her severe impairments, it is extraordinary that Dr Z has confirmed in the ACD on 3 August 2019 that he 'had no reason to doubt the capacity of the person ([IJU])'.
10. We had a lengthy discussion with ZAC during the hearing about the lack of validity of the ACD relating to IJU.
11. ZAC told us that she has been instructed by management of the facility that an ACD must be prepared for every resident of and that, if the resident is unable to complete an ACD as a result of their impairment, a family member is asked to complete one on their behalf. If there is no family member, it appears that the person's general practitioner may be asked to complete one.
12. The information provided to IJU is legally incorrect.
13. In order to be valid, an ACD must be signed by the person to whom it relates after being informed of the purpose and effect of an ACD at a time when that person is able to understand the facts and choices involved and the consequences of their decisions. An ACD cannot be signed by any other person.
14. 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.
15. The apparent lack of understanding of the facility, Dr Z and ZAC about what is required for an ACD, a very significant legal document, to be valid is of great concern as it leaves IJU with a legally invalid form of decision making at a critical time in her life.
16. As the purported ACD made in relation to IJU is invalid we had to consider whether or not to make a guardianship order for IJU.
17. There is a regime set out in Pt 5 of the 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.
18. In circumstances in which a guardian is appointed under the 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]).
19. After considering the oral and written evidence presented, we are satisfied that a guardianship order should be made for IJU and that the guardian should have authority to make decisions about her healthcare and to consent to medical and dental treatment on her behalf. This will enable the guardian to make decisions about palliative care for IJU and, if necessary, to make decisions about the withdrawal or withholding of life-sustaining treatment (for example, by way of a 'not for resuscitation' order) provided this is in her best interests.
20. We informed ZAC that a guardian is unable to make funeral arrangements for IJU but that, given her estate is under the management of the NSW Trustee and Guardian, they can be approached for guidance at the appropriate time.
21. We noted that IJU was transferred from the nursing home to the aged care facility around 2008 without the involvement of a guardian, but at a time when she had been deemed incapable of consenting to medical treatment. ZAC was unable to advise us how this accommodation decision was made because it occurred prior to the aged care facility commencing to use electronic records and she did not have access to older paper records.

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.
2. As there is no private person available to be appointed as guardian, we 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.
2. We decided to make an order for 12 months because it is likely that a substitute decision maker will be required for IJU for the remainder of her life.

---

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: 14 January 2020