MAQ [2016] NSWCATGD 70

Review of the 2011 Order

1. On review, I may renew, or renew and vary the 2011 Order, or determine that it is to lapse: s 25C(2) of the Act. Before considering which of these orders is appropriate, the threshold question of whether Ms MAQ remains "a person in need of a guardian" must be addressed.

Is Ms MAQ a person in need of a guardian?

1. The phrase a "person in need of a guardian" is defined to mean "a person who, because of a disability, is totally or partially incapable of managing his or her person": s 3(2) of the Act. Section 3(2) of that Act, defines a "person who has a disability" in the following terms: 3 Definitions … (2) In this Act, a reference to a person who has a disability is a reference to a person: (a) who is intellectually, physically, psychologically or sensorily disabled, (b) who is of advanced age, (c) who is a mentally ill person within the meaning of Mental Health Act 2007, or (d) who is otherwise disabled, and who, 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.
2. Successive Tribunals have found that Ms MAQ is a person in need of a guardian. In its reasons for making the 2011 Order, the Tribunal (differently constituted) found that Ms MAQ had an intellectual disability which prevented her from making important lifestyle decisions: at [17].
3. Tendered in these proceedings was a behavioural report plan prepared in April 2016 by psychologist, Ms X. In that report Ms X wrote that Ms MAQ had been diagnosed with a "moderate intellectual disability". In addition, she wrote that Ms MAQ has "all the features of a Borderline Personality Disorder and symptomology is consistent with a diagnosis of Complex Post Traumatic Stress Disorder". The basis for Ms X's opinion about Ms MAQ having features of a Personality Disorder and symptoms of PTSD is unclear from her report. However, for the purpose of this review, it is not necessary to decide that question largely because of the severity of her intellectual disability.
4. In her report, Ms X detailed the care and assistance currently provided to Ms MAQ. She wrote that Ms MAQ has limited ability to communicate, requires full assistance to toilet and wash her hands, with prompting can dress herself, and requires assistance with meals.
5. There is ample evidence to support the view that Ms MAQ has a moderate to severe intellectual disability, and, as a result, is restricted in a number of major life activities to such an extent that she requires supervision. It follows that she is a "person who has a disability" within the meaning of the Act. In addition, the weight of evidence reveals that because of a disability, Ms MAQ is partially incapable of managing her person.
6. It is evident, therefore, that Ms MAQ is a "person in need of a guardian" and the power to renew, or renew and vary the 2011 Order can be exercised.

Should the 2011 Order be renewed, renewed and varied or allowed to lapse?

1. In deciding whether the 2011 Order should be renewed, renewed and varied, or allowed to lapse, we adopt the approach consistently taken by NCAT and one of its predecessor tribunals, the Administrative Decisions Tribunal of NSW, that in conducting an end-of-term review the Tribunal must have regard to the matters listed in s 14 of the Act: IF v IG & Ors [2004] NSWADTAP 3 at [20]. In addition, we must observe the "general principles" listed in s 4 of the Act: 4 General principles It is the duty of everyone exercising functions under this Act with respect to persons who have disabilities to observe the following principles: (a) the welfare and interests of such persons should be given paramount consideration, (b) the freedom of decision and freedom of action of such persons should be restricted as little as possible, (c) such persons should be encouraged, as far as possible, to live a normal life in the community, (d) the views of such persons in relation to the exercise of those functions should be taken into consideration, (e) the importance of preserving the family relationships and the cultural and linguistic environments of such persons should be recognised, (f) such persons should be encouraged, as far as possible, to be self-reliant in matters relating to their personal, domestic and financial affairs, (g) such persons should be protected from neglect, abuse and exploitation, (h) the community should be encouraged to apply and promote these principles.
2. See also cl 5 of Sch 6 to the Civil and Administrative Tribunal Act 2013 (NSW).

Views of Ms MAQ

1. As noted, Ms MAQ did not attend the hearing. I have been unable to discern her views about the Application for review.

Views of Ms KBL

1. Ms KBL met Ms MAQ about 25 years ago through a friend, Ms LYX. Ms LYX is Ms MAQ's sister and had been Ms MAQ's joint guardian (with Ms GZE) until 1997.
2. According to Ms KBL, Ms LYX approached her when she relinquished her role as guardian because of ill-health, and asked whether she would be prepared to take over the role. Ms KBL stated she declined because she was concerned that taking on that role might compromise her relationship with Ms LYX.
3. According to Ms KBL, Ms MAQ requires a substitute decision-maker. In her opinion, even if provided with significant support and assistance, the nature of Ms MAQ's intellectual disability is such that she would be incapable of making decisions of significance.

Views of Mr NDC

1. Mr NDC has known Ms KBL for over a decade. He was a friend of Ms GZE and Ms LYX and through them, met Ms MAQ. He supports the application to renew the 2011 Order.

Views of the Public Guardian

1. In a report prepared for the purpose of this review, an officer of the Public Guardian, Nicki Cummings, recommended that the 2011 Order be allowed to lapse, reasoning that she no longer required decisions to be made on her behalf in relation to any of the functions conferred by the 2011 Order: health care, services, restrictive practices, and medical and dental consents.
2. Ms Cummings wrote that after taking over the role of guardian, the Public Guardian made no healthcare decisions on behalf of Ms MAQ. With respect to the healthcare function, she pointed out that the group home where Ms MAQ now resides put in place a "Comprehensive Assessment program" to meet Ms MAQ's "care needs". She wrote that Ms MAQ's health is stable, her medications have remained largely unchanged, she is regularly reviewed by her GP and attended a psychiatrist in September 2016. Ms Cummings reported that in September 2016, the Public Guardian provided consent for medications recommended by psychiatrist, Dr W. She reported that Dr W had recommended that Ms MAQ be reviewed by a psychiatrist in 12 months. According to Ms Cummins, Dr W advised that Ms Cummins's treatment was stable and was unlikely to change in the foreseeable future.
3. With respect to the restrictive practices function, Ms X wrote that a "restrictive practices authorisation" which approved various practices, including locking taps, laundry, bathroom, front and side gates, PRN medication, and car seat buckle covers was in place. She wrote that in the opinion of the Public Guardian these measures did not constitute "restrictive practices" but related to the service provider's "duty of care". She reasoned that therefore a restrictive practice function was unnecessary.
4. With respect to the services function, Ms X wrote that the Public Guardian had made no decisions about services since taking over the role of Ms MAQ's guardian. She noted that with the NDIS roll-out in Ms MAQ's local area in June 2016, it was anticipated she would be provided with "individualised support". She explained that the Public Guardian has not provided consent or been involved with NDIS planning. She wrote that the Public Guardian believes Ms MAQ can be "adequately supported by group home staff, who know her well". If appropriate, staff could refer Ms MAQ to an advocacy service, which was the "least restrictive option".
5. Ms Y stated that Ms MAQ has a number of health problems, including a chronic bowel problem, which can change quickly and require urgent medical attention. In addition, she stated that Ms MAQ's mood can change quickly and that in August 2016 she was referred to a psychiatrist for review on account of her aggressive behaviour.

The practicality of services being provided to Ms MAQ without the need for making an order

1. Given the lack of information about the possible options that may be available to Ms MAQ under the NDIS, it is not possible to form a concluded view about the practicality of services being provided to her in the absence of guardianship order.

Consideration

1. I must respectfully disagree with the views expressed by the Public Guardian. It rests on three flawed assumptions. First, because no fresh decisions were made in the areas of health care, services, and restrictive practices that no decisions were made. Second, that is a precondition to the making of, or renewal of, a guardianship order that in the foreseeable future new decisions will need to be made under the guardianship order. Third, that not being subject to a guardianship order promotes autonomy in decision making and is the "least restrictive option". I understand the Public Guardian to use the term "restrictive option" as a short-hand reference to one of the general principles listed in s 4 of the Act, namely, that the freedom of decision and freedom of action of a person with a disability, should be restricted as little as possible: s 4(b).
2. I will deal with each assumption in turn.
3. First, it does not follow that because the Public Guardian made no fresh or new decisions in the term of a guardianship order no decisions were made. Using the example of the health-care function, while the Public Guardian did not make a new decision about this function, by not seeking to vary or revoke the Comprehensive Assessment program, it implicitly approved its continuation. That constitutes a decision.
4. Second, the Act does not stipulate, as the Public Guardian suggests, that "a need for a guardianship order" must be established before the power to make (or renew) a guardianship order can be exercised. The only constraint imposed by the Act on the exercise of the power to make (or renew) a guardianship order is the requirement that the Tribunal must have regard to the matters listed in s 14(2) of the Act and to observe the principles contained in s 4 of that Act. But, in any event, for the reasons set out below, in my opinion, it is likely in this case that a number of decisions will need to be made on behalf of Ms MAQ in the foreseeable future.
5. Third, it is flawed logic to suggest that where the nature of the subject person's decision-making disability is such that they are effectively unable to make decisions of significance on their own behalf, not being subject to guardianship order is the "least restrictive option". Absent a guardianship order, decisions will continue to be made on behalf of Ms MAQ on an informal basis. The question is who will make those decisions. Without a guardian, those involved with her day-to-day care will probably assume that role. In my opinion, it is not appropriate that a person or organisation, whose interests potentially may be in conflict with those of Ms MAQ, takes on the role of informal substitute decision-maker. While it would appear that those now charged with the care of Ms MAQ, are committed to promoting her welfare and interests, nonetheless the nature of their relationship with Ms MAQ gives rise to a potential or real conflict of interest. The Tribunal may not appoint a person as guardian unless it is satisfied that there is no undue conflict between their interests (particularly, the financial interests) and those of the person under guardianship: s 17(1)(b) of the Act.
6. In my opinion, it is in the interests of a person with a significant decision-making disability such as Ms MAQ, who does not have the advantage of a supportive and involved family, for the arrangements for decision-making to be formalised.
7. In my view, it is appropriate that the guardianship order be renewed. It is likely that, with the introduction of NDIS, a number of fresh decisions will need to made about a number of significant issues such as services and accommodation. As Ms Y indicated in this hearing, there is some uncertainty surrounding the accommodation where Ms MAQ now resides. Further, it is in Ms MAQ's interests that the Comprehensive Assessment program be regularly reviewed and assessed.

Who should be appointed guardian?

1. Ms KBL's application to be appointed guardian is supported by Mr NDC, Ms Y and the Public Guardian.
2. Mr NDC stated that, in his opinion, he could not think of a more person more suited than Ms KBL to take on the role of Ms MAQ's guardian. He stated that, in addition to her wealth of experience and knowledge of intellectual disability, Ms KBL has had the advantage of knowing Ms MAQ and people close to her - Ms LYX and Ms GZE - over an extended period.
3. Ms Y stated that she supported the application because Ms KBL has both "history and the heart". She stated that knowledge of Ms MAQ's long history of institutional care and personality is useful to an understanding of Ms MAQ's current behaviour. She described Ms KBL's interaction with Ms MAQ as "very amiable".
4. Section 17 of the Act states: 17 Guardians (1) A person shall not be appointed as the guardian of a person under guardianship unless the Tribunal is satisfied that: (a) the personality of the proposed guardian is generally compatible with that of the person under guardianship, (b) there is no undue conflict between the interests (particularly, the financial interests) of the proposed guardian and those of the person under guardianship, and (c) the proposed guardian is both willing and able to exercise the functions conferred or imposed by the proposed guardianship order.
5. I am satisfied that the matters listed in sub-paras (a), (b), and (c) of s 17(1) of the Act are established.
6. I am satisfied that Ms KBL is an appropriate person to discharge the important role of guardian and it is in Ms MAQ's interest that this appointment be made.

What functions should be conferred?

1. I have decided to add accommodation to the functions conferred under the 2011 Order. From the information provided by Ms Y, it seems likely that Ms MAQ's current accommodation provider may change. If that were to occur, an accommodation function would be required. In any event, in my opinion, on-going review of the suitability of Ms MAQ's accommodation is necessary and appropriate.
2. With respect to the "restrictive practices" function, I am inclined to agree with the Public Guardian's view that the locking of gates, seatbelts and the like is probably not a "restrictive function" as that term is understood in this jurisdiction. However, without the benefit of considered argument, and to avoid uncertainty over whether the service provider can continue to lock gates etc., I have decided to retain restrictive practices function continue.
3. In reaching that decision I note that the current restrictive practices are supported by a behavioural management program and appear reasonable.

What should be the term of the renewed order?

1. Given that Ms MAQ has a permanent disability and it is improbable that she will become capable of managing her person, a guardianship order can be made for a period of up to five years: s 18(1) of the Act. I have decided not to make an order for the maximum period because, with the appointment of a new guardian, I am of the opinion that it would be in Ms MAQ's for the order to be reviewed at an earlier point in time. I have decided two years to be an appropriate period.

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: 05 July 2018