LZN [2021] NSWCATGD 12

Background

1. LZN is a 76-year-old woman, who is a permanent resident of an aged care facility in regional NSW. LZN has three daughters, UYC, TBQ and KDN. It is reported that UYC is identified by the aged care facility as LZN's person responsible and that UYC is making all medical and care decisions on LZN's behalf.
2. LZN is reported to have a diagnosis of schizophrenia.
3. Guardianship orders have previously been made appointing a guardian for LZN. The most recent guardianship order lapsed in May 2020.
4. On 29 March 2021, UYC lodged a guardianship application in relation to LZN. In her application, and in further material in support of it, UYC alleged that there was a dispute in relation to whether or not LZN should receive a COVID-19 vaccination. UYC advised that she was of the view that LZN should receive the vaccine but that her sister, KDN, was of the view that LZN should not receive it. UYC expressed the view that a guardian was required to resolve that issue, and to make decisions about LZN's medical treatment.
5. Prior to the hearing, KDN advised the Registry that she is opposed to her mother being administered the COVID-19 vaccination. Her concerns centre on the vaccine being new, with reports of side effects and fatalities. KDN advised that, in her view, she is identified as the person responsible for LZN.

The Hearing

1. At the end of these Reasons for Decision are lists of the parties and witnesses who attended the hearing. [Appendix removed for publication.] TBQ did not participate or seek to express any view about the application.

What did the Tribunal have to decide?

1. In making any decision in applications of this nature, we must consider the principles set out in s 4 of the Act.
2. Every person who is the subject of an application is presumed to have the capacity to make decisions for themself until the Tribunal receives sufficient evidence to rebut that presumption.
3. The threshold issue for the Tribunal, once someone makes a proper application, is whether the evidence establishes that LZN has a disability which renders her at least partially unable to manage her person and requiring support.
4. Even if that is established, we have discretion about whether to make orders and what kind of orders to make. We consider all relevant factors. Our paramount consideration is the welfare and interests of LZN.

GUARDIANSHIP

1. The questions we need to consider are:

• Is LZN someone for whom we could make a guardianship order?
• Should we make a guardianship order, and if so, what order should we make?
• If we make a guardianship order, who should we appoint as guardian and how long should the order last?

Is LZN someone for whom the Tribunal could make a guardianship order?

1. Section 14(1) of the Act enables the Tribunal to make a guardianship order for LZN if we are satisfied that she is "a person in need of a guardian".
2. A person in need of a guardian is "a person who because of a disability is totally or partially incapable of managing their person": the Act, s 3(1). The disability must restrict her in one or more major life activities to the extent that she requires supervision or social habilitation (the Act, s 3(2)), that is, assistance to manage in society. Commonly, we consider the person's ability to make important personal, health and lifestyle decisions, which is a major life activity that impacts on the person's ability to manage in society.
3. For her part, LZN said that she "was all right on her own" in making decisions, but that she might need a "bit of help" making important decisions.
4. LZN appeared to have difficulty focussing on the questions asked of her. She found it difficult to refrain from speaking over others where they said anything she disagreed with, and this later manifested in her yelling over others, particularly UYC, while UYC gave evidence. LZN elected to leave the hearing before it concluded.
5. We received several medical and related reports regarding LZN. In a report of 26 February 2021, from Dr Z, an old age psychiatrist who treats LZN, Dr Z indicates that LZN presented as settled and interactive and that she "questioned her own delusions where the nurses talk about her. She complained that she could not walk from bed to the bathroom since her return from hospital where she did not walk at all." LZN reportedly told Dr Z that she intended to move to a nursing home in Queensland.
6. In progress notes from the aged care facility, Dr Z also noted on 5 February 2021 that LZN was "reviewed for possible delirium, that she was referred for schizoaffective disorder and moderate dementia, probably of the vascular type". LZN was said to have been intermittently non-compliant with medication. The doctor reported that LZN presented with a "recent worsening of her verbal (hostility, swearing) and physical behaviour toward staff including aggression".
7. A report from Dr Z, dated 25 January 2021, indicates that LZN is diagnosed with schizoaffective disorder and treated with Risperidone, Lurasidone, Lithium, Valproate liquid, and Clonazepam liquid.
8. In an earlier report from September 2020, Dr Z indicated that LZN presented at that time with attenuated psychotic symptoms and repeatedly asked to return home. She believed that the "staff talk about her" but told the doctor that she cannot understand the content of what they say.
9. In an aged care assessment dating from 2019, LZN was assessed as having "deteriorated in health and physical functioning, that she requires assistance with finances, shopping, transport, housework, and meal preparation". It was reported that prior to hospitalisation where she was assessed, LZN would forget to take her medications, especially when mentally unwell. The recommendation was made that "due to a deterioration in health and physical functioning [LZN] can no longer be supported [at] home". The report recommended that LZN receive high-level residential respite and permanent care.
10. UYC believed LZN was unable to understand the nature and effect of important decisions that she may need to make, as a result of her mental illness.
11. UYC noted that LZN is often lucid, but is also commonly delusional, particularly in respect of the delusions referred to in the medical reports in respect of the actions of the nursing staff. She said that there might be a need for LZN to be administered medication to control her behaviour, when she escalates to violence.
12. KDN agreed that there were times, albeit infrequent, when LZN is so unwell that she cannot make her own decisions. Her focus was, appropriately, on the need for any appointed decision-maker to give effect to LZN's views to the greatest extent possible. She said that she can usually have a "normal" conversation with LZN about things like the weather.
13. Ms Y, the Care Manager of the facility where LZN is living, told us that LZN is commonly in conflict with staff at the facility, and that it relates to her fixed delusions that there were people in her room, who were not there. Ms Y told us that LZN is prescribed, and has been administered, medication on an as needed (PRN) basis when her behaviour escalates and cannot be otherwise managed. This is chemical restraint, as referred to in several published decisions of this Tribunal: see, for example: HZC [2019] NSWCATGD 8. The medication had not been used for about a year, but in Ms Y's view that was because it was commonly too late to use it when LZN's behaviour has escalated.
14. Those views were consistent with the medical evidence, and the fact that LZN requires high-level supported care and a significant medication regime to manage her mental health.
15. Based on the weight of the medical evidence, which was largely supported by the witnesses other than LZN at the hearing, we were satisfied that LZN has a disability, being a mental illness, which causes her to have impaired decision-making capacity for important personal, health and lifestyle decisions. She is, as a result, partially incapable of managing her person and needs supervision or assistance to function in society.

Should we make a guardianship order, and if so, what order should we make?

1. When considering making an order, we must have regard to LZN's views, if we were able to obtain them. LZN has no spouse or carer. We were also required to consider the importance of preserving LZN's existing family relationships and particular cultural and linguistic environments as well as the practicability of her being provided with services without the need for an order: the Act, s 14(2).
2. We must consider each of these matters, in no particular order. If we need to consider different or competing issues, we undertake a balancing exercise in our consideration. Of course, we also consider any other relevant evidence, guided by the principles set out in s 4 of the Act. Where relevant evidence of particular weight about these issues was available to us, or where different factors needed to be balanced, we refer to it below.

The views of LZN

1. Given that LZN felt that she could make her own decisions, she did not think that we should appoint a guardian. If a guardian was to be appointed, however, she proposed that KDN be appointed to that role.

The views of UYC

1. UYC raised the issue of the need for a decision to be made regarding the COVID-19 vaccination as a primary reason for the appointment of a guardian. She indicated that she had given consent to the administration of the vaccine, but that her consent had been countermanded by KDN.
2. UYC also raised the concern that a guardian may need to be appointed to consider whether chemical restraint should be used in the support of LZN, but appeared unaware that this was already occurring. Whilst this evidence was given, LZN was shouting that she wished to cut ties with UYC, over what was being said.

The effect of an order on LZN's family relationships and cultural or linguistic environment

1. In our view, the appointment of a guardian would promote, to the extent possible, LZN's family relationships. The current arrangement, where the authority to act as substitute decision-maker for LZN is uncertain, only seems to add to the conflict within LZN's family.
2. There was no evidence which would indicate that making, or not making an order, would affect LZN's cultural or linguistic environment.

Are there decisions which should be made by a guardian?

1. The evidence we received raised several decision-making areas where we were satisfied that LZN might benefit from the appointment of a guardian. They were as follows: 1. Health Care and giving Medical and Dental Consents - In addition to the need for someone to consider the issue of whether LZN should be vaccinated, and to monitor and give consent to treatment for her mental health conditions, LZN's health records indicate that she has recently had several other ailments which have required monitoring and treatment, including in relation to her vision and diabetes. 2. The authority to override objections to medical treatment - The consistent evidence is that LZN objects to being vaccinated for COVID-19, and that she is frequently non-compliant with her other medications. 3. Restrictive Practices in the form of chemical restraint - This practice has been used in the support of LZN, and cannot be continued without consent. Given LZN's diagnoses and apparent presentation when the practice has been used, it is unlikely that she is giving consent on her own behalf. If the practice is to continue, it should also be governed by appropriate conditions: JFL [2020] NSWCATGD 32.
2. We decided that we should appoint a guardian. The guardian should be allowed to make health care decisions and consider medical and dental consent. The guardian should also be authorised to decide whether chemical restraint is used on an ongoing basis, subject to conditions we will place on the order. The guardian will have the authority to override LZN's objections to medical and dental treatment. In the absence of an order, we are satisfied that LZN will be left without the protection of appropriate oversight of her treatment and the potential use of restrictive practices in her care. The ongoing disagreement between her daughters, as potential persons responsible, means that a decision maker needs to be appointed to clarify who has authority to give substitute consent to medical treatment.

Whom should we appoint as guardian, and how long should the order last?

1. The Tribunal is not able to appoint the Public Guardian as a person's guardian if there is a private person who can properly be appointed: the Act, s 15(3).
2. The Supreme Court has held that: "the proper meaning to be given to [section 15(3)] 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])."
3. In deciding whether a person is able to undertake the role of guardian, we must consider whether they are able 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].
4. We must also be satisfied that they have a personality which is generally compatible with that of LZN, have no undue conflict of interest and are willing and able to exercise the functions of the proposed order: the Act, s 17.
5. 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.
6. KDN told us that, if appointed as guardian, she would do research and "look into" trials in relation to the vaccines, before making a decision about whether LZN should be vaccinated. She said that she had spoken to a doctor who treats LZN, whose name she could not recall, who indicated that "anything injected" would be significant in LZN's care. She indicated that she would take into account the significant medication regime administered to LZN, seek LZN's views and give effect to them.
7. KDN agreed that she had countermanded UYC's consent to LZN being vaccinated. She acknowledged that the issue of vaccination had been ongoing for about five weeks. KDN told us that she had also spoken to LZN's General Practitioner about the vaccination issue, but had not enquired about the consequences of LZN not being vaccinated, where most other residents of the facility now were. KDN told us she had told LZN's GP that she didn't want LZN treated with anything LZN didn't agree to. She felt that LZN's GP was only "giving her the pros and not the cons" of the medication. She said that she would need to talk more to LZN's GP about the decision, but could not explain why she had not done so before making the decision that LZN not be vaccinated, save that she had done a lot of her own research. She said one of the vaccines, which she thought was produced by AstraZeneca, was causing major blood clotting. She did not ask the doctor which vaccine was proposed for administration to LZN. In the two weeks since deciding that LZN should not be vaccinated, she had made no further enquiries as to the advantages and disadvantages of the vaccine specifically for LZN. Rather, she had been "listening to the news and done a lot of her own research".
8. KDN had still not been able to form a view as to whether LZN should be vaccinated, and said she would need to do more research. She felt that the vaccine had been "rushed…out," given that "we only found out about Covid in March 2020". In her view, a vaccine needs a "minimum of three to four years" to determine whether it was safe. KDN told us that she agreed LZN was not able to understand all the "pros and cons" of being vaccinated. If appointed as guardian, she would want to examine the ingredients of the vaccine and how they might interact with LZN's other medications. She had not asked LZN's GP or another doctor about those potential interactions before deciding that LZN shouldn't be vaccinated, and she alleged no expertise of her own to make that assessment on an informed basis. KDN agreed that it was important that a decision be made soon, about vaccination.
9. KDN asked LZN's doctor about the side effects of the vaccine, but suggested that "he changed the subject".
10. We asked KDN whether she had discussed the advantages and disadvantages of being vaccinated with LZN. She replied that she had, that she explained that most of the other residents were vaccinated, and that "Coronavirus is similar to the flu". KDN said that she explained the risks of vaccination to her mother, that LZN "had been vaccinated for the flu in the past but [LZN] has had enough and that was [LZN's] view". She went on to explain that LZN should have the "choice of her own body" and that this is a human right. She felt that LZN should have a liver and kidney function test before vaccination is considered, but had done nothing to progress this, or to discuss it with LZN or LZN's GP.
11. In summary, despite advising that she was open to the idea of vaccination of her mother, KDN returned to her concern that the vaccine was experimental, that there should be more clinical trials, and that from what she had observed from the news, there were "no trials done on the elderly" or people with compromised immune systems, such as her mother.
12. We asked KDN whether she thought LZN would be at greater risk of harm if she was infected with COVID-19, given her compromised immunity. She thought that was "not necessarily" the case, because LZN has had "flus and colds in the past but she never really got them really severe (sic)". She had asked her mother: "would you prefer to have the vaccine and have a really serious adverse reaction or would you prefer to catch the virus?" LZN apparently said that she would prefer to catch COVID-19, which satisfied KDN.
13. Similarly, KDN told us that under no circumstances should chemical restraint be used.
14. Noting KDN's concerns that LZN was on several medications which may interact with the vaccines, we asked if she could name any of the medications LZN is prescribed. She could not definitively name any of the medications.
15. We were not satisfied that KDN could appropriately be appointed as guardian. Despite her expressed willingness to consider all relevant issues before deciding whether LZN should be vaccinated, we were not satisfied that KDN would be able to act within a reasonable time to make a decision, given her unexplained delay in obtaining information critical to those considerations. Without, for example, identifying the vaccine which is proposed, or knowing what medications LZN is treated with, it is difficult to see how KDN intended to investigate their potential interaction in a timely fashion.
16. We were also left with a lingering doubt, given KDN's strong focus on the issue that the vaccines which are available are "new" (which is, of course, true) and "experimental," and her view that more clinical trials are required to determine their safety, that KDN would feel equipped to make an informed decision in the foreseeable future. This is despite her evidence that the decision needs to be made promptly.
17. We were unconvinced that KDN would be able to countenance overriding her mother's objections to medical treatment, if required, given her apparently overriding opinion that LZN's views should be respected, despite her acknowledgement that LZN cannot always make decisions in her own interests.
18. In any event, given that we are satisfied that an appointed guardian should be given the function of considering consent to chemical restraint, and KDN's unequivocal indication that she would not give such consent, she could not properly undertake the functions of the proposed order by weighing the considerations for and against that course, before making a decision.
19. We asked UYC similar questions, given that she had already sought to consent to the vaccination being administered to LZN. UYC also hadn't asked which vaccine was proposed. Nor had she spoken to any of LZN's doctors about the vaccine, or how it might interact with LZN's other medications. She had not independently weighed the potential effect on LZN specifically related to LZN's other medical conditions. Nor had she sought advice about that.
20. In fact, despite her view that she has been acting as her mother's person responsible, UYC had never spoken to any of LZN's treating medical practitioners about the issue. If she was appointed today as guardian, she told us she would immediately take steps to have LZN vaccinated. She had also done her own research, and had spoken to her own doctor about whether LZN should be vaccinated. The only information she gave her doctor about LZN, though, was LZN's age group and that she is diabetic. UYC acknowledged that she hadn't mentioned the medications that LZN is prescribed, because she also does not know what they are. When we pressed UYC about whether her GP could have given appropriate advice concerning LZN's suitability for a vaccine, in those circumstances, she acknowledged that her GP told her he could give no specific advice in the absence of that information.
21. UYC, despite us giving her the opportunity to raise the issue on more than one occasion, did not mention seeking LZN's views, or trying to explain to LZN the need to be vaccinated, before making the decision that it should occur, if appointed as guardian.
22. UYC paid no apparent heed to KDN's concerns that the potential interaction of LZN's medications or medical conditions might need to be factored into the vaccination decision. She had decided LZN should be vaccinated, she says, because "she is really scared about [LZN] getting this Covid (sic), because [she] know[s] what it does to people", especially of her mother's age group who would be unlikely to survive an infection.
23. We were, similarly, not satisfied that UYC could properly be appointed as guardian in the circumstances. In our view, an appointed guardian making health care decisions, or considering consent to medical treatment, needs to be willing and able to take information from different sources, such as the person's treating medical practitioners and consider the relevant and available information before reaching a decision. They also need to take the person's (here LZN) views, into account: the Act, s 4. UYC has exhibited no propensity to do so before having predetermined the decision she would make if appointed as guardian, in respect of the vaccine. Whilst willing, she is not able to exercise the functions of the order in the relevant sense: W v G [2003] NSWSC 1170.
24. As a separate, but related, issue, UYC does not speak to KDN, and does not anticipate that will improve. We also needed to consider the obvious upset caused to LZN by her hearing UYC's views, when she disagreed with them. We think UYC's appointment as guardian would likely have a negative impact on LZN's relationship with her, given the decisions UYC intended to make if appointed and KDN's staunchly opposed views.
25. For completeness, we should record that, when asked, Ms Y indicated that it was proposed that LZN be vaccinated with the vaccine produced by Pfizer.
26. There was no private person suitable to be appointed as guardian. Therefore, we appointed the Public Guardian. We contacted the duty guardian who, after an explanation of the issues, indicated that the Public Guardian would consent to being given the authority to override LZN's objections to medical treatment.
27. We decided to make an order for 12 months, because many of the decisions which are likely to be required will need to be made soon, and the Tribunal should review the need for a guardian, or whether all of the relevant functions are needed, at that time.

appendix When vaccination may be major treatment under the Act: the Guardianship Regulation 2016, reg 10(1)(f), read with the definition of major treatment in s 33(1) of the Act • Death • Brain damage • Paralysis • Permanent loss of function of any organ or limb A treatment is major treatment if it involves a substantial risk to the patient (that is, a risk that amounts to more than a mere possibility) of: • Permanent and disfiguring scarring • Exacerbation of the condition being treated • An unusually prolonged period of recovery • A detrimental change of personality or • A high level of pain or stress

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: 24 August 2021