IZH [2018] NSWCATGD 29

Evidence

1. In his applications for guardianship and financial management, KAM stated he was previously appointed as his sister's attorney and enduring guardian, but she had revoked these appointments. IZH has no insight into her mental illness. She is separated from her husband and, when she is manic, she does not have the capacity to make decisions that are in her best interest.
2. Hospital discharge and transfer summary notes, dating back to November 2016, indicated that IZH has been diagnosed with 'manic psychosis on background of bipolar affective disorder'. She has a long history of bipolar affective disorder with multiple mental health admissions. She has been on a range of psychotropic medications, including Lithium Carbonate, Sodium Valproate and Lurasidone. The notes also stated that IZH had scored 21-23/30 in a MoCA, with deficits in attention, language, and abstraction, as well as delayed recall. An MRI could not be completed due to 'claustrophobia'.
3. In a letter to the Tribunal, Ms Y stated that IZH has been a client of the mental health unit of public hospital B since 2016, following a significant relapse of bipolar disorder. She has had approximately 14 admissions over the past two and half years, with minimal periods of wellness and long periods of stay in hospital due to serious manic episodes.
4. Ms Y stated that IZH is an intelligent and capable woman, who has competently managed her family's budget and home environment in the past when her mental state has been stable. However, there are concerns in relation to her current fluctuating mental state as well changes in her financial situation. During manic episodes, IZH has been 'fixated' on money and her 'impaired problem-solving skills' have led to difficulties with her finances and personal relationships. For example, IZH travelled to Brazil to meet a 'healer' to heal her mental illness. She had made payments to the healer and has not disclosed whether she has continued to make such payments. Other examples include signing residential tenancy agreements without understanding the terms, staying at numerous hotels, purchasing goods, which were subsequently discarded, and accruing significant credit card debts.
5. It was stated that IZH's divorce proceedings are likely to involve a complex divorce property settlement. Due to the nature of her illness and the dominant role that money has in her delusions, IZH is at risk of self-mismanagement and exploitation. Ms Y recommended the appointment of the NSW Trustee and Guardian as financial manager to protect IZH's assets and future financial needs. She noted that IZH 'has incorporated her family members into delusional beliefs associated with money, and theft of money'. Appointment of family members as financial manager would likely damage her family relationships.
6. CZH submitted to the Tribunal a large number of documents, dating back to February 2016. These documents included: 1. Email exchanges between CZH and a number of psychiatrists who have treated IZH over the past two years. The emails offered a detailed and chronological account of IZH's relapse in early 2016 and the subsequent deterioration of her mental health. 2. Letter from Dr X, Psychiatry Registrar at the mental health unit of public hospital A, dated April 2016. Dr X referred to IZH's long history of mental illness and noted that her historical diagnosis of schizophrenia had been revised more recently to bipolar affective disorder. He also noted that IZH had responded well to treatment at the Centre and recommended further adjustments to her medication. 3. Discharge Summary from Dr W, Psychiatry Registrar at the mental health unit of public hospital A, in relation to IZH's July-August 2016 admission. In light of IZH's 'numerous recent lapses of mania, Dr W recommended no changes to her medication 'as this has often led to a decline in her mental state in the past'. 4. Letter from a doctor of an animal hospital, dated August 2016, reporting that, on 16 August 2016, IZH presented her cat at the veterinary hospital and wrote a note saying her cat had schizophrenia and that it needed to be killed immediately. The police and 'health department' were subsequently contacted over concerns for IZH and her children. 5. Evidence, consisting of invoices, bank statements, signed documents and emails, showing that, in January 2017, IZH had signed a residential tenancy agreement in respect of a unit in Southern Sydney, but she had left the property five days later, breaking the lease. Her actions had resulted in incurring penalties and additional costs relating to damage to the property. 6. Police statement made by CZH on 30 December 2017, stating that IZH and a male patient had contacted him by telephone from the Mental Health Unit of public hospital C, making threats of harm against him.

The Hearing

1. The matter was listed for hearing on Friday, 9 March 2018. At the end of these Reasons for Decision is a list of the witnesses who attended the hearing. [Appendix removed for publication.]
2. Prior to the hearing, a Tribunal officer was informed by the nursing staff at the mental health unit of public hospital A that IZH had advised she did not wish to participate in her hearing. The nursing staff were requested to communicate to IZH that the Tribunal was still able to make orders if she chose not to attend the hearing.
3. At the hearing, Dr U, Psychiatry Registrar at the mental health unit of public hospital A told the Tribunal that IZH had refused to attend the hearing. None of the other parties objected to the Tribunal proceeding with the hearing in IZH's absence.

The Guardianship Application

1. The questions which had to be decided by the Tribunal were: 1. Is IZH 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? 2. Should the Tribunal make a guardianship order and if so, what order should be made? 3. Who should be the guardian? 4. How long should the order last?

Is IZH 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. The evidence before the Tribunal indicated that IZH had her first mental health admission in 2000 with a 'provisional diagnosis' of schizophrenia. Following a long period of stability, she had a mental health admission for a manic psychosis in 2015 and was diagnosed with bipolar affective disorder. Since then, IZH has had numerous admissions and 'minimal periods of wellness' due to serious manic episodes.
3. Dr U reported that he has been treating IZH for the last two weeks. She was previously under the supervision of another treating team, but changes became necessary after she incorporated members of the previous team into her delusional beliefs. He stated that IZH's most recent admission was due to breaching her Community Treatment Order (CTO). He noted that IZH has been difficult to manage, and she is refusing to take her medication. She is disinhibited, irritable and severely delusional (thinking, for example, that she is pregnant). She exhibits paranoia, religious and persecutory delusions and a firm belief that she is fine. All participants agreed that, due to her mental illness, IZH is unable to make important life decisions.
4. On the basis of this evidence, the Tribunal was satisfied that IZH has a disability, being severe mental illness, which prevents her making important life decisions in an informed manner. 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. For the following reasons, the Tribunal formed the view that it should make a guardianship order, appointing a guardian to carry out the functions of accommodation, health care, medical and dental treatment, access, services and legal services.

Accommodation

1. It is undisputed that, since 2015, IZH has had multiple hospital admissions. During the periods she has been in the community, she had primarily resided in the family home. However, significant changes in IZH's circumstances have cast a shadow over her accommodation options. Her husband, together with their two sons, moved out of the family home in April 2016 and the couple separated in July 2016. More recently, IZH had integrated the family home into her paranoid delusions, refusing to stay in the house. She had initially moved into a rental property and then a motel before returning to the family house to reside at a granny flat behind the property. Regardless of her delusions, IZH may not have continued access to the family home as the fate of the property is likely to be determined by the divorce property settlement.
2. Dr U told the Tribunal that, due to challenges associated with treating IZH, the Mental Health Review Tribunal (MHRT) had made an Involuntary Patient Order (IPO) on 5 March 2018 for a period of one month. The MHRT had also approved the use of Electro Convulsive Therapy (ECT) for IZH. Dr U stated that the medical team was hopeful that IZH would respond to ECT. The evidence before the Tribunal did not suggest that IZH would be unlikely to reach a level of stabilisation necessitating discharge in the near future.
3. In the absence of a viable discharge destination or plan, accommodation decisions are required to be made in respect of IZH. The Tribunal was satisfied that that the appointed guardian should have an accommodation function.

Health care and medical and dental consent

1. Dr U told the Tribunal that IZH's medical team are still experimenting with different types of medication in order to achieve long-term stabilisation. She is currently very unwell, objects to medication and can be aggressive. However, they have been able to administer medication, including Clopixol Acuphase through discussion and persuasion. He stated that the MHRT had approved 12 ECT treatments over a period of four weeks. The ECT would be administered under general anaesthetics.
2. With regard to her general health, Dr U stated that there are no outstanding medical issues and IZH appeared to be in good physical health. He noted, however, that she had refused check-ups, blood tests and an ECG in the hospital.
3. Ms Y stated that, due to IZH's frequent relapses, the mental health unit of public hospital B had intended to pursue an MRI scan to rule out any other factor that might contribute to her condition. She also stated that, over the past two and half years, IZH she not been able to reach a 'good level of wellness'. Her mental health fluctuates and it has been very difficult for her to reach a consistent level of stabilisation. On many occasions, when she was living in the community, she appeared to be stable on medication with no role to be played by the Mental Health Act.
4. KAM noted that, due to her professional background as a pharmacist, her sister is knowledgeable about the recommended medication and feels confident in refusing the treatment. He also referred to an incident whereby IZH had required medical attention after drinking Dettol in an attempt to self-harm.
5. Ms Marie Mercer from the Office of the Public Guardian submitted that IZH is in good physical health and the treatment she is currently receiving, or would receive, as an involuntary patient related to her mental health diagnosis. Nevertheless, if the need were to arise for consent to be given in relation to medical treatment outside the purview of the Mental Health Act, KAM is available to provide consent as the person responsible.
6. The Tribunal did not agree with the Public Guardian's view. The available evidence suggests that, since her revised diagnosis in 2015, IZH has not attained a consistent level of stabilisation. This has been due to a number of interrelated factors, including the inability of a succession of psychiatrists and other health professionals to identify the exact type of medication or the dosage required to achieve prolonged stabilisation, IZH's delusional beliefs that she is well and does not require medication and her consequential deteriorating condition. However, at least for short periods in the past, IZH has always reached a certain level of stabilisation following each admission, necessitating discharge and adjustments to medication. Dr U's evidence suggested that her present treating team have continued to experiment with different medication, hoping for a response. Whilst IZH is currently under an IPO, there is no certainty as to whether the hospital would seek to extend the IPO. Nor is there any certainty that she would be subject to a further CTO following her discharge. As Ms Y told the Tribunal, IZH has experienced periods of stability through treatment outside of the mandate of the Mental Health Act.
7. The Tribunal was satisfied that, upon being discharged, IZH would likely continue to receive treatment in the community, including further psychiatric assessment and intake of psychotropic medication that may not be mandated under a CTO. The Tribunal was mindful of the evidence indicating that, in the past, IZH had incorporated KAM into her paranoid delusions, revoking his appointments as her enduring guardian and attorney. KAM told the Tribunal that this had made it difficult for him to make decisions on his sister's behalf. The Tribunal accepted this evidence and formed the view that such dynamics would prevent KAM to fulfil the responsibilities associated with the role of person responsible. Having regard to matters set out in s 14(2) of the Act, particularly the importance of preserving the person's existing family relationships, the Tribunal decided that the appointed guardian should have the functions of health care and medical and dental consent. The Tribunal also decided to confer on the guardian the authority to override IZH's objection to the carrying out of major or minor treatment: s 46A of the Act. The Tribunal was satisfied that IZH's objections to treatment are because of her lack of understanding of the nature of, or reason for, the treatment.

Services

1. Ms Y told the Tribunal that it would be likely that IZH requires the services of a provider in the community to ensure compliance with oral intake of medication following discharge. This service provider is a private service and needs to be arranged and paid for privately. The service was previously paid for by CZH and was mandated for the first time as part of IZH's most recent CTO to administer her oral medication.
2. Whilst, in view of IZH's past lack of compliance with medication, Ms Mercer questioned the utility of the service if not mandated by a CTO, she submitted that the guardian should be given the function of services.
3. The Tribunal accepted the evidence before it and decided that the appointed guardian should have the function of services.

Access

1. The evidence presented to the Tribunal suggested that the deterioration of IZH's mental health in 2016 had resulted in a number of distressful interactions with her children. In an email to Dr T, CZH reported that IZH had attended her sons' school and had informed them that she had killed the family cat. This incident had caused distress to her sons. In another email to Dr T and Ms Y, CZH stated that he and his mother had filed separate incidents with the police, reporting that IZH had threatened to stab them if they 'ruined' her children.
2. In a subsequent email, CZH reported that, following the couple's separation, the children had continued to see IZH for short periods after school and on Saturdays over a meal. These visits were supervised by CZH or his parents. CZH reported that the children did not want to be left alone with IZH because they were fearful of her, especially after being told that she had killed their cat. CZH referred to other examples of IZH's behaviour, which he said had caused the children to become upset. CZH told the Tribunal that his sons had expressed the view that they did not wish to be left alone with their mother.
3. The Tribunal accepted the evidence before it that IZH has been a devoted mother in the past and would continue to seek to see her sons once discharged. The Tribunal accepted Ms Mercer's submission that the level of contact IZH's sons would have with their mother may be determined by any parenting orders made in connection with the divorce proceedings. The Tribunal also accepted that IZH's level of wellness to see her children would be decided on the basis of medical evidence. The Tribunal, however, was mindful of the fact that, if IZH was granted access on the basis of a parental order and she was deemed well enough to see her children, there are still decisions that are required to be made in relation to the nature of the contact or visits, the necessary associated arrangements and the appropriate environment. The Tribunal was, therefore, satisfied that the appointed guardian should have the function of access.

Legal services

1. The evidence before the Tribunal indicated that, due to the amount of the assets involved, the divorce property settlement between IZH and her husband is likely to be complex. CZH informed the Tribunal at the hearing that a solicitor had been appointed by IZH's family to represent her in relation to their divorce proceedings. KAM stated that the family have been instructing the solicitor, but since IZH has been so unwell, the solicitor had 'taken a back seat'.
2. Ms Mercer submitted that the utility of a legal services function is questionable. It was submitted that IZH had not objected to the appointment of the solicitor prior to her admission and she would be able to give instructions when she is well again.
3. Ms Y, however, noted that, even when IZH had appeared to be well in the community, her decision-making ability has always been impaired, and her understanding of the legal process would be very limited.
4. The Tribunal was persuaded by the evidence before it that, due to her disability, IZH does not have the capacity to make the different types of decisions that are involved in continuing to engage legal representation, understanding legal issues and staying abreast of the processes relating to her divorce, property settlement or parental orders, which could have serious consequences for her. The Tribunal was satisfied that IZH lacks the capacity to instruct a legal representative and a guardian with a legal services function is required to give instructions on her behalf in relation to the range of complex issues associated with the divorce proceedings.

Travel and passport

1. Prior to the hearing, KAM had informed a Tribunal officer that the guardian should have travel and passport functions as IZH has previously travelled to Brazil to meet a healer whom she believed could heal her mental illness. At the hearing, however, all parties agreed that currently IZH would be unable to source the finances necessary to enable her to make any travel arrangements. In addition, the Tribunal has made a financial management order in relation to IZH, appointing the NSW Trustee and Guardian as her financial manager (see below). This arrangement would encompass managing IZH's share of the divorce property settlement. In these circumstances, the Tribunal did not consider it necessary to give the guardian travel and passport functions.

Who should be the guardian?

1. Section 15(3) of the Act provides that the Public Guardian should not be appointed 'in circumstances in which such an order can be made appointing some other person as the guardian of the person'.
2. KAM did not wish to be appointed as his sister's guardian. There were no other family members who had expressed a willingness to be appointed as guardian. In the absence of a suitable private person who has been identified to make decisions in relation to IZH and having regard to the principles set out in s 4 of the Act, the Tribunal decided to appoint the Public Guardian as guardian.

How long should the order last?

1. Initial guardianship orders are usually made for a maximum of one year from the date on which they were made. The Tribunal decided to make an order for 12 months to ensure that the Public Guardian would be able to undertake important decisions on IZH's behalf with regard to the functions specified in the Tribunal's order.

Financial Management Application

1. The Tribunal is the Civil and Administrative Tribunal of New South Wales in its Guardianship Division. The Guardianship Division has been assigned the functions of the Tribunal in relation to the Act and some other specified Acts.
2. The making of a financial management order is a function under the Act and is governed by the legislative framework set out in that Act. It is the duty of everyone exercising functions under the Act, including the Tribunal, with respect to persons who have disabilities, to observe the principles set out in s 4 of that Act. A similar duty applies to appointed financial managers pursuant to s 39 of the NSW Trustee and Guardian Act 2009 (NSW).
3. These principles reflect the protective nature of the guardianship jurisdiction (which includes the financial management jurisdiction) but seek to strike a balance between providing necessary protection and promoting empowerment of persons with disabilities including by intruding no more than is necessary on their rights and liberties. Strictly speaking, the financial management regime under the Act, unlike the guardianship regime under that Act, focuses on incapability per se without the requirement to base that incapability on a person's disability. Nevertheless, it will usually be the case that the incapability is so based. In that case, the duty in s 4 of the Act is enlivened, including the principle that the welfare and interests of the person are to be given paramount consideration; taking into consideration the views of the person and the importance of preserving the family relationships and the cultural and linguistic environments of the person.
4. The questions to be considered by the Tribunal are: 1. Is IZH incapable of managing her affairs? 2. Is there a need for another person to manage IZH's affairs and is it in her best interests for a financial management order to be made? 3. If so, who should be appointed financial manager?

Is IZH incapable of managing her affairs?

1. The test for determining a person's capability to manage his or her affairs has been described as follows (P v NSW Trustee and Guardian [2015] NSWSC 579, [307]-[308]): Is a person reasonably able to manage his or her own affairs in a reasonably competent fashion, without the intervention of a [financial manager] charged with a duty to protect his or her welfare and interests? … [A] focus for attention is whether the person is able to deal with (making and implementing decisions about) his or her own affairs (person and property, capital and income) in a reasonable, rational and orderly way, with due regard to his or her present and prospective wants and needs, and those of family and friends, without undue risk of neglect, abuse or exploitation.
2. In considering whether the person is "able" in this sense, consideration may be given to:

• past and present experience as a predictor of the future course of events;
• support systems available to the person; and
• the extent to which the person, placed as he or she is, can be relied upon to make sound judgments about his or her welfare and interests: see Lindsay J in CJ v AKJ [2015] NSWSC 498, at [38], and P v NSW Trustee and Guardian [2015] NSWSC 579, at [309].

1. The evidence, detailed above and accepted by the Tribunal, indicated that IZH has a serious mental illness. The evidence considered by the Tribunal also indicated that, due to her mental illness, IZH has, allegedly, been exploited in the past by a 'healer' in Brazil and has mismanaged her finances, incurring unnecessary expenses, debts and liabilities. She has entered into contractual agreements or financial arrangements she did not understand and has been unable to attend to her financial obligations, including payment of utility bills and insurance premiums.
2. The Tribunal was satisfied that IZH was not reasonably able to manage her own affairs in a reasonably competent fashion, without the intervention of a financial manager. The Tribunal was satisfied that IZH is incapable of managing her affairs.

Is there a need for another person to manage IZH's affairs and is it in her best interests for a financial management order to be made?

1. As already noted, IZH's impending divorce proceedings would involve a complex divorce property settlement, involving the family home, valued at approximately $2,000,000, an investment property valued at $1,400,000 and other common possessions and belongings.
2. CZH stated that he has been paying all the utility bills relating to the family home, as well as insurance premiums. Whilst he had succeeded in reducing the limit to IZH credit card to curtail inappropriate spending, he had been unable to cancel the card. KAM stated that he and his mother had made payments towards IZH's credit card debts in the past.
3. On the basis of the evidence before it, the Tribunal was satisfied that IZH has significant assets to be managed and there are complex financial decisions that are required to be made in connection with divorce property settlement. The Tribunal was satisfied that IZH's mental illness and incapacity to manage her finances make her vulnerable to self-mismanagement and exploitation. The Tribunal was persuaded that there is a need to appoint someone to manage IZH's affairs. The Tribunal was satisfied that it is in the best interests of IZH that a financial management order be made.

Who should be appointed as financial manager?

1. In appointing a financial manager, as in making all other orders under the Act, the Tribunal must act with the interests of the person concerned as the paramount consideration and in accordance with the other principles set out in s 4 of the Act.
2. Section 25M of the Act provides that, if the Tribunal makes a financial management order, it may appoint a suitable person to manage the person's estate or may commit the management of the estate to the NSW Trustee and Guardian.
3. Having regard to the principles set out in s 4 of the Act, including giving IZH's welfare and interests paramount consideration, in the absence of any suitable private person being available and willing to be appointed as financial manager, the Tribunal appointed the NSW Trustee and Guardian as IZH's financial manager.

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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