Minister for Disability Services v People with a Disability Inc

NCAT Guardianship|2018-02-14|Before: Health J, Program J

What the Tribunal decided

The Tribunal determined that Justice Health and Forensic Mental Health Network has standing to apply for guardianship and financial management orders in relation to Mr MZT.
The Tribunal determined that Mr MZT be separately represented in the proceedings before the Tribunal.
The Tribunal adjourned the hearing of the applications by Justice Health and Forensic Mental Health Network for the appointment of a guardian and financial manager for Mr MZT to 4 April 2018 at 9:30am.

Background

Mr MZT is a 33-year-old man who is an inpatient at the Forensic Hospital in South-eastern Sydney. He is currently a forensic patient having been found not guilty of a crime by reason of mental illness pursuant to s 39 and s 42 of the Mental Health (Forensic Provisions) Act 1990 (NSW).
Mr MZT is reported to have an intellectual disability and neurofibromatosis. He is also reported to have no informal social supports outside the Forensic Hospital.
On 27 November 2017, the Tribunal received applications for the appointment of a guardian and financial manager for Mr MZT from Justice Health and Forensic Mental Health Network (JHN). The applications set out that a guardian is required for Mr MZT as there are multiple, complex decisions that need to be made that are beyond his decision making capabilities. The decisions arise as there are impending changes to Mr MZT's care, support and placement following his preliminary acceptance into the Community Justice Program. Decisions are said to be required in relation to his National Disability Insurance Scheme (NDIS) plan, his accommodation, services and health care. A financial manager is said to be required as there will be a need to put in place arrangements for payment of Mr MZT's accommodation fees and other expenses.

The Hearing

At the end of these reasons for Decision are lists of the parties to the application and witnesses at the hearing. [Appendix removed for publication.]

Does Justice Health and Forensic Mental Health Network have standing to bring the applications?

The relevant provision of the Guardianship Act 1987 (NSW) (the Act) is s 9(1)(d) which states that a person has standing to bring an application if he/she is: 1. the person who is the subject of the application, 2. the Public Guardian, or 3. any other person who in the opinion of the Tribunal, has a genuine concern for the welfare of the person.
We therefore had to decide whether: 1. JHN is a "person" within the meaning of the Act; and 2. JHN has a genuine concern for the welfare of Mr MZT.
We were assisted by detailed written submissions provided by Ms Penny Csendertis, Senior Solicitor on behalf of the Crown Solicitor.

Is JHN a person within the meaning of the Act?

Section 21 of the Interpretation Act 1987 (NSW) defines person as including an individual, a corporation and a body corporate or politic.
The Crown Solicitor submits that there is nothing in the Act that indicates that the word "person" in s 9(1)(d) should take a meaning other than that provided for in the Interpretation Act.
JHN is a statutory health corporation constituted under s 41 of the Health Services Act 1997 (NSW) (the HSA) is a body corporate (s 41(2)), and is a specialty network governed health corporation as specified in Sch 2 of the HSA (s 41(3)). It is also a "public health organisation" pursuant to s 7(b) of the HSA.
Section 11 of the HSA provides that the principal reason for constituting statutory health corporations is to enable health services and certain health support services to be provided within the State other than on an area basis.
Pursuant to s 45 of the HSA a statutory corporation may take proceedings in its corporate name and "may do and suffer all other things that a body corporate may, by law, do and suffer that are necessary for or incidental to the purposes for which the corporation is constituted".
In the recent decision of NEJ [2017] NSWCATGD 1, the Tribunal held that a Local Health District under the HSA was a "person" for the purposes of s 9(1)(d). Local Health Districts are constituted under s 17 of the HSA and are body corporates.
We were satisfied that JHN as a body corporate is a "person" within the meaning of s 9(1)(d) of the Act.

Does JHN have a genuine concern for the welfare of Mr MZT?

A corporate body may have a "genuine concern" consistent with the decision in Minister for Disability Services v People with a Disability Inc (CSD) [2010] NSWADTAP 44. According to this decision, a number of factors can be considered to determine whether an organisation has a genuine concern, including the aims of the organisation and the type of activities it undertakes in pursuit of those aims.
In EBI [2017] NSWCATGD 6, the Tribunal found that the provision of direct relief of sickness, suffering and distress by operating health facilities to serve the people of New South Wales are the activities and objectives consistent with the meaning of genuine concern for the welfare of the person, as envisaged by the Act.
The Crown Solicitor drew our attention to the provisions of the Mental Health (Forensic Provisions) Act. This provides the legislative framework for the forensic mental health system and specifies the care, treatment, and control of forensic and correctional patients.
We were also referred to the Forensic Mental Health Services Policy Directive, PD2012-050, published on 4 September 2012 (the Policy). The Policy applies to JHN which is noted "provides health care in a complex environment to people in the adult correctional environment, to those in courts and police cells, to juvenile detainees and to those within the NSW forensic mental health system and in the community".
Mr MZT is a forensic patient pursuant to s 39 and s 42 of the Mental Health (Forensic Provisions) Act at the Forensic Hospital operated by JHN. Section 76B of the Mental Health (Forensic Provisions) Act provides that the principles in s 68 of the Mental Health Act 2007 (NSW) (the principles for care and treatment) apply with respect to the administration of pt 5 of the Mental Health (Forensic Provisions) Act with respect to forensic patients such as Mr MZT.
The principles in s 68 of the Mental Health Act include that: 1. people with a mental illness or mental disorder should receive the best possible care and treatment in the least restrictive environment enabling the care and treatment to be effectively given; 2. people with a mental illness or mental disorder should be provided with timely and high quality treatment and care in accordance with professionally accepted standards.
It was submitted by the Crown Solicitor that the statutory functions of JHN under the HSA and the Mental Health Act and the principles of care and treatment that apply by reason of the Mental Health (Forensic Provisions) Act set out above, are consistent with JHN being a person with a genuine concern in relation to the applications it makes concerning patients at the Forensic Hospital.
We accept those submissions and find that the purpose of the applications made by JHN indicates JHN has a genuine concern for the welfare of Mr MZT. Therefore, we find that JHN has standing under s 9(1)(d) of the Act to make the applications for the appointment of a guardian and financial manager for Mr MZT.

Decision to appoint a separate representative for Mr MZT

In this matter the Tribunal considered that it was appropriate for a separate representative to be appointed for Mr MZT. There is a serious doubt about his capacity to give legal instructions but there is a clear need for his interests to be represented at the hearing. Mr MZT is currently a forensic patient at the Forensic Hospital. A separate representative will be able to seek the views and opinions of Mr MZT and other significant people involved in his life and make submissions to the Tribunal about the best interests of Mr MZT as they arise in the matter before the Tribunal. The Tribunal explained to Mr MZT and the parties that the separate representative will seek and inform the Tribunal of Mr MZT's wishes but that ultimately the separate representative represents his best interests rather than acts on his instructions.
Mr MZT supported the appointment of a separate representative as did Ms BYN, Social Worker at JHN.
Ms BYN said there were no pressing concerns that would require the Tribunal, in the best interests of Mr MZT, to hear the applications and consider making orders. Ms BYN thought it would be several months before any change to Mr MZT's current situation occurred. In all the circumstances the Tribunal considered it was appropriate to adjourn the proceedings for a short period of time for the separate representative to be appointed and to provide adequate opportunity for the separate representative to confer with the relevant people.
The Tribunal adjourned the hearing of the applications by JHN for guardianship and financial management orders to 4 April 2018 at 9:30am.

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

Mental Health (Forensic Provisions) Act 1990(NSW)ss 39, 42, 76B

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