KZQ [2021] NSWCATGD 19

What did the Tribunal have to decide?

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

• Is KZQ 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 KZQ 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": the Act, s 3(1). 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: the Act, s 3(2).
2. The term "social habilitation" is not defined in the Act. In P v NSW Trustee and Guardian [2015] NSWSC 579, Lindsay J considered its meaning in the context of s 3(2) of the Act, at [303]: "The expression 'social habilitation' (in the context of references to 'disability', 'restricted', 'major life activities' and the word 'requires') may be taken to refer to a need for services to help a person to be, or become, able to function normally in community with others."
3. A neuropsychological report compiled in 2012, by Dr Z, a clinical neuropsychologist, about eight months after he sustained the brain injury, indicates that at that time KZQ had inconsistent memory function and was also exhibiting disinhibition, impulsivity and poor judgment.
4. In a Health Professional Report Form, MXP indicates that she is an occupational therapist and that she has known KZQ for 10 years. She provides the following information about KZQ's health and medical circumstances: 1. About 10.5 years ago KZQ sustained a brain injury when he was struck by a vehicle. Since then, his condition has been deteriorating due to the effects of ageing, cerebral atrophy and sleep apnoea and that has impacted on his cognition and mobility. She states that KZQ's brain injury is severe. 2. KZQ has limited insight into the effects of his brain injury and does not appreciate his support needs. 3. KZQ does not understand the implications of health decisions.
5. An iCare Behaviour Support Plan developed by Ms Y, a Behaviour Support Practitioner, indicates that KZQ has significant motivational issues and experiences confusion and disorientation.
6. As noted, KZQ did not express his views. It was uncontested amongst the remaining participants that KZQ's cognitive condition has deteriorated over time and that he is not able to manage his person, including making important life decisions. We accepted the evidence of the health practitioners that was consistent with the view expressed during the hearing and we were satisfied that due to a cognitive impairment, KZQ is restricted in managing his person and is not able to make important lifestyle decisions. He is, therefore, 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; 2. the person's spouse; 3. the person's carer; and 1. the importance of preserving the person's existing family relationships; 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 is guided by the principles that are set out in s 4 of the Act (see IF v IG [2004] NSWADTAP 3).
3. In her report, MXP indicates the following: 1. KZQ requires 24-hour care and had previously left home unattended which resulted in a hospital admission. 2. KZQ refuses to use his CPAP machine as recommended for his severe sleep apnoea with the result that he is fatigued. 3. KZQ does not understand his mobility risks and attempts to leave his bed unassisted.
4. The iCare Behaviour Support Plan indicates that there is a need to use bed rails for KZQ because he does not ask for help to get out of bed. He has agreed to the rails being used on days when he is not feeling strong. During the hearing we questioned why the rails would be necessary taking into account that KZQ has 24/7 care that includes an active overnight carer. Ms Y said that so far the rails have not been used because KZQ's care staff know him well enough to predict possible risks. However they might need to be used if a carer needed to leave KZQ's room to prepare food or drink for him or for some other temporary need. She said that in her opinion the risks posed by bed rails used in aged care facilities occurs because residents are left for long periods of time without a carer. However in the case of KZQ, a carer would only be absent for a short period of time whilst the bed rails were in use. She said that the Lifetime Care and Support Restrictive Practices Panel has determined that the use of the bed rails is a restrictive practice for which consent is required.
5. NYQ said that in his opinion KZQ's condition has deteriorated in the last four to six weeks and he believes that the use of bed rails is necessary to ensure that KZQ will not injure himself getting out of bed.
6. LBP was also in support of the use of the bed rails for KZQ's safety.
7. We were satisfied that there a need to consider the use of bed rails to manage KZQ's behaviour and to provide consent to their use if and when appropriate. We were of the view that it is in the best interests of KZQ that a decision about this form of mechanical restraint be made only under conditions that ensure that it is used as the last resort after appropriate assessment and is reviewed regularly. Accordingly we placed conditions on the ability of the guardian to consent to the use of the mechanical restraint.
8. Appointing a guardian to make decisions about mechanical restraint used to manage KZQ's behaviour has the effect of suspending the operation of the enduring guardianship. We were satisfied that as KZQ's condition deteriorates there may need to be decisions made about his accommodation and also about his health care and medical/dental treatment. Decisions about these matters were authorised under the enduring guardianship appointment and we were satisfied that it is in KZQ's best interests to include them in an order made by this Tribunal.
9. LBP and NYQ were supportive of the making of a guardianship order. We were satisfied that making an order would not adversely affect KZQ's family relationships. There was no evidence of any cultural or linguistic matters that would adversely affected by making an order.
10. Having considered the matters outlined above and reaching the conclusions as noted, we made the order appointing a guardian to make decisions for KZQ about his accommodation, services, health care, medical/dental treatment and any mechanical restraint used to manage his behaviour so long as that decision was made according to the conditions as provided.

Who should be the guardian?

1. The Tribunal has to be satisfied that any person appointed as a private guardian meets the following requirements in accordance with s 17(1) of the Act. He or she must: 1. have a personality generally compatible with the personality of the person under guardianship; 2. have no undue conflict of interest (particularly financial) with those of the person; and 3. be able and willing to exercise the functions of the order.
2. In deciding whether a person is able to undertake the role of guardian, the Tribunal must consider whether the proposed guardian is able, having regard to the circumstances, to exercise the functions in accordance with the principles set out in s 4 of the Act (C S and M Y v the Guardianship Tribunal and the Public Guardian (Supreme Court (NSW), Windeyer J, 29 November 1999, unrep) and Re B [2011] NSWSC 1075, at [66].
3. In P v D1 & Ors [2011] NSWSC 257 the Supreme Court noted the importance of a proposed guardian being able to demonstrate insight and explain plans for how to act as guardian objectively and without conflict of interest.
4. 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: the Act, s 15(3).
5. The Supreme Court has held that: "the proper meaning to be given to the section is to read it as saying that the Public Guardian should not be appointed in circumstances in which an order can properly be made in favour of another person. That requires not only that the person be willing, reliable and responsible, but that the appointment will result in the policy considerations and principles set forth in the Act being given effect (W v G [2003] NSWSC 1170, [25])."
6. LBP and NYQ proposed that they be appointed jointly as the guardians. We were satisfied that their relationship with KZQ is positive and that they understand his needs and are able to carry out the functions of the order. There was no evidence of any conflict of interests.
7. On the basis of this evidence, we were satisfied that LBP and NYQ meet the requirements to be appointed jointly as the private guardians for KZQ.

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. We made the order for 12 months because we believe it will take some time to make and implement the decisions encompassed in the order and to then review the ongoing appropriateness of the order.

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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: 19 November 2021