NBZ [2017] NSWCATGD 35

Background - Facts

1. The applications and documentary evidence before us outlined Ms NBZ's life circumstances and the matters which had led to the applications before the Tribunal. We understood the following factual circumstances to be uncontested: 1. Ms NBZ was born in Sierra Leone. She was separated from her mother at the age of seven. It is understood that Ms NBZ witnessed and experienced significant trauma due to the civil war in Sierra Leone, including her father and brother being killed in front of her. 2. Ms NBZ's mother, Mrs OZG, arrived in Australia in 2005 and pursued numerous avenues to be reconnected with her daughter. 3. With the assistance of the Red Cross and others, Mrs OZG located her daughter and she moved to Australia to be with her mother in 2009. 4. Ms NBZ was first admitted to a public hospital in June 2010 due to experiencing an episode of psychosis. Around this time she was diagnosed as having schizophrenia and an extremely low range of intellectual functioning. Her condition has caused her to have several admissions to hospital since 2010. 5. In late 2017, tests indicated that Ms NBZ was pregnant with twins. Reports from both Ms NBZ and her mother to those who provide support to the family suggest that the pregnancy may have been the result of a sexual assault upon Ms NBZ, however, no report has yet been made to NSW Police.

The hearing

1. At the end of these Reasons for Decision are lists of the parties to the application and the witnesses who attended the hearing. [Appendix removed for publication.]
2. The application was listed for hearing at the Parramatta Justice Precinct to foster and facilitate the participation of Ms NBZ and her mother. Pleasingly, both mother and daughter were able to attend and participate in the hearing in person.
3. Ms Jill Hill of Counsel performed the role as Ms NBZ's separate representative in the proceedings.
4. An interpreter in the Krio language was available throughout the course of the hearing by way of telephone. Neither Ms NBZ nor her mother sought to utilise the services of the interpreter to any significant extent during the course of the hearing.

What did the Tribunal have to decide?

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

• Is Ms NBZ 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?
• 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 Ms NBZ 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), 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; 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), the Act).
2. In his application, Mr TMG states that Ms NBZ has an intellectual disability and goes on to state [Ms NBZ] has limited & low score in IQ testing, it is doubtful that she understands complex information presented to her.
3. The applicant placed before us a number of reports from health professionals which addressed Ms NBZ's decision-making capacity. The majority of these were from some time ago, but still provided to us a useful background as to the assessments that have been conducted upon Ms NBZ since she had been in Australia. We note that all assessments noted to some degree that conclusions needed to be viewed with some caution due to cultural and language barriers.
4. One such assessment report was a neuropsychological report dated 10 December 2014 authored by Mr Z, registered psychologist, which stated, in part, the following: [Ms NBZ] is a 24-year-old, right-handed female who was seen for inpatient neuropsychological assessment [at a public hospital]. I understand from the referral that she presents with a recent history of disorganised behaviour and aggression within the context of poor medication compliance against a background of schizophrenia and possible developmental delay. I also note a history of traumatic events during her childhood. … For the current assessment, [Ms NBZ] presented as a polite and cooperative woman, who appeared childlike in demeanour but nevertheless very friendly and willing to engage. Her mood appeared to be within the normal range, but she was somewhat immature in her presentation in that she smiled and giggled frequently to questions. The interview and cognitive assessment were conducted with the assistance of a Krio interpreter, meaning only a selective battery of brief neuropsychological tests could be administered, … Given the nature of [Ms NBZ]'s presentation, as well as her cultural background and relatively low level of education, the results of this neuropsychological assessment need to be interpreted with a considerable degree of caution. … … While [Ms NBZ]'s non-English speaking background and limited battery of tasks complicates the interpretation of the assessment results, the predominant impression is one of poor functioning across a range of cognitive domains, including processing speed, working memory, higher-level attentional skills, learning and memory for verbal material, complex visuospatial abilities, and most aspects of executive functioning. … [Ms NBZ]'s cognitive difficulties will likely have some effect on her day-to-day functioning. … In terms of her memory, [Ms NBZ] may have some difficulties learning and retaining new information. … [Ms NBZ] may also have difficulties in terms of complex decision-making such that she may not be able to generate alternative solutions to problems, and may require some assistance.
5. We were also provided with a capacity assessment report authored by Dr Y, staff specialist psychiatrist at public hospital. Whilst we note that the report was commissioned to specifically address the issue of whether Ms NBZ had the ability to consent to a medical termination of her pregnancy, the report does provide useful commentary as to Ms NBZ's cognitive abilities generally: I interviewed [Ms NBZ], a 27 year old woman of African background in the premises of [a public hospital] on 15.12.2017. Ms NBZ has a diagnosis of Chronic Schizophrenia and intellectual disability. She lives with her mother [Mrs OZG] in a rental unit in [Western Sydney] and is on disability support pension. She has had multiple admissions to mental health units and is currently being managed in the community by [a community mental health team]. [Ms NBZ] is currently 12 weeks pregnant with twins as a result of an alleged non-consensual sexual intercourse (sic). The reason for this assessment is to assess [Ms NBZ]'s ability to consent for medical termination of pregnancy. On assessment, [Ms NBZ] seems to be largely asymptomatic and there is no evidence of any delusions, hallucinations, formal thought disorder or sever mood disorder. She is euthymic and has reasonable insight into her illness. Her judgement seems to be reasonably intact. She is compliant with her medications. There is an obvious difficulty in understanding complex statements and a limited abstract ability secondary to intellectual disability While talking specifically about the current pregnancy and her future plans, [Ms NBZ] seems to have a very superficial understanding of the whole process of pregnancy, labour and post-partum period. [Ms NBZ] apparently has not been provided with detailed information about what a medical termination of pregnancy means and involves. She does not have the knowledge of the normal birth process. This seems to be secondary to her limited intellectual capacity rather than mental illness. She believes "the babies will be taken out by cutting her stomach anytime when she wants after 6 months of pregnancy and the process will be easy and painless. The babies will be kept in the tubes until they grown normal and then her mother will look after them till they start school." The lack of information is manifesting as ambivalence in her decision making. While [Ms NBZ] was confident about keeping the pregnancy initially during the interview, she gradually became more indecisive and agreed that she is still not sure of her plans with pregnancy. … In my opinion, [Ms NBZ]'s capacity to consent for medical termination of pregnancy should be co-assessed by a Psychiatrist and an obstetrician if [Ms NBZ] wishes to opt for it following the appointment with obstetrician.
6. The applicant, Mr TMG, explained to us that he had known Ms NBZ for nearly two years. His background is that of a registered mental health nurse now engaging in case management in the community. He was of the view that the condition of schizophrenia combined with an intellectual disability meant that Ms NBZ has great difficulty processing information. He described how matters of substance needed to be explained to Ms NBZ many times, and even then, it is often clear that she has not understood what has been explained to her.
7. When we enquired of Ms NBZ herself as to whether she believed she could make her own decisions, she told us that she wanted to make her own decisions and that she felt she once had problems but was getting better as she got older.
8. Ms NBZ's mother, Mrs OZG, described her daughter as confused. Mrs OZG's engagement with us throughout the hearing led us to form the view that she only had a limited understanding of the purpose of the proceedings.
9. Ms X, Nurse Unit Manger with a community mental health team, has known Ms NBZ since 2009 and was her direct case manager from 2009 until 2015 and still has regular contact with her. She described Ms NBZ as having a clear decision-making disability, describing her as "waxing and waning" in many areas of decision making such as where to live. She described her as having an inability to stick with a decision or understand the ramifications of decision making.
10. We were satisfied that Ms NBZ has a disability which prevents her from making important life decisions.
11. The uncontested evidence before us is that since the time of her moving to Australia, Ms NBZ has been diagnosed and treated for schizophrenia and that she has intellectual functioning in the low range. We placed significant weight on those who have been engaged with Ms NBZ for some years, such as Ms X, who provided us with evidence as to how Ms NBZ's disabilities impact upon her ability to make decisions and otherwise understand the ramifications of decision making.
12. We were satisfied that Ms NBZ 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. In his application, Mr TMG provides as follows as follows as to why he believes a guardian needs to be appointed for Ms NBZ: [Ms NBZ] has an intellectual disability. She was involved in an incident whereby she was given a table by a male person in a car recently. Later, [Ms NBZ] & [Mrs OZG] (her mother) found out from results of blood test that [Ms NBZ] was pregnant with twins. [Ms NBZ] was talking about termination of her pregnancy whereas [Mrs OZG] was not in support of this decision due to cultural & religious reasons. The relationship between [Ms NBZ] & [Mrs OZG] can be volatile, [Ms NBZ] had been physically aggressive to her mother in the past. [Mrs OZG] has often declined offer of services specifically to address [Ms NBZ]'s needs. [Ms NBZ] reported that this pregnancy was due to nonconsenual (sic) sex or sexual assault but refused to report to Police. [Ms NBZ] has a current court case for common assault but she refused legal representation. [Ms NBZ] finds it difficult to comprehend the problem & understand the support needed to deal with this problem. Due to pregnancy, all her psychiatric medications have been ceased. She often does not co-operate with clinicians regarding her care. During her pregnancy she will need medical care & is unlikely to co-operate receiving appropriate care.
4. Mr TMG also goes on to state in his application that he believes determination of his application is required as a matter of urgency because: Since [Ms NBZ] is pregnant at this time & cannot manage this pregnancy & her mental illness by herself. She needs many support services, therefore she needs to make decision regarding her care, the care of her unborn child, accommodation etc which are urgent so that risks to [Ms NBZ] & her unborn child are addressed appropriately.
5. It was abundantly clear to us that the primary driver for the application before us was Ms NBZ's pregnancy and the decisions to be made in relation to her pregnancy. Secondary issues related to her potential access to the National Disability Insurance Scheme (NDIS) and associated matters.
6. We had the benefit of taking evidence from Ms W, Coordinator for Western Sydney Local Health District (WSLHD). She has known both Ms NBZ and her mother for over seven years. She was of the view that so many more services could be provided to assist Ms NBZ and that sadly not much had changed in her circumstances since she had first met her. She agreed with evidence from others that Ms NBZ found decision making difficult and would often change her mind. She gave examples relating to Ms NBZ wanting to attend TAFE and possibly change her accommodation, both matters on which she had changed her mind once steps had been taking to implement an earlier decision.
7. Ms W was of the view that a guardian was needed to be appointed not only to assist with decisions stemming from her pregnancy, but also to ensure that she receives all the services she needs and is entitled to, and perhaps also to examine her long-term accommodation needs. She described how both Ms NBZ and her mother had had varying and changing views on whether Ms NBZ should continue to live full-time with her mother or whether she should have periods of respite in supported accommodation
8. The applicant, as outlined in his application, primarily believed a guardian was needed to ensure Ms NBZ dealt with her pregnancy in the best way possible for her. He expressed concern that Ms NBZ had changed her mind several times in recent weeks as to whether she would or would not proceed with the pregnancy.
9. Aside from the pregnancy, the applicant believed a guardian was necessary to assist Ms NBZ with the services she needs. He said that Mrs OZG had refused to sign documents as to her daughter's NDIS package and that there was indecision as to her future accommodation needs.
10. Ms NBZ's separate representative, Ms Jill Hill, advised us that she had had two lengthy face-to-face meetings with Ms NBZ in the lead up to the hearing. From those meetings Ms Hill concluded that Ms NBZ found it difficult to take in and retain information and had limited ability to weigh things up, describing her as having fixed views.
11. Ms Hill described Ms NBZ's pregnancy as "high risk". Whilst being cautious to in no way question the love and devotion of Ms NBZ's mother, she viewed Mrs OZG as having her own limitations and difficulties in assisting her daughter. She expressed the view that it could be possible in the months ahead that neither Ms NBZ nor her mother may be assessed as having the requisite capacity to make the medical decisions needed. Ms Hill's position was that when considering in combination Ms NBZ's diagnosis and the impact it has on decision making, her current pregnancy with twins, difficulties associated with language and cultural barriers, we should be satisfied there is a current need for a guardian to be appointed for Ms NBZ.
12. Ms Hill also urged us to consider whether any guardian appointed for Ms NBZ required authority to make decisions as to her accommodation and to provide legal advocacy.
13. In terms of accommodation, Ms Hill understood that Mrs OZG was in favour of her daughter engaging in a trial of living in supported accommodation. However, Ms NBZ was generally opposed to this idea and as a result her mother experienced great anxiety. In relation to legal advocacy, Ms Hill informed us that Ms NBZ was the subject of legal proceedings as it is alleged that she assaulted a shop keeper. There was a lack of clarity as to how Ms NBZ's interests are being advanced in these proceedings.
14. Having reviewed the evidence before the Tribunal, Mr Tyrell of the Public Guardian acknowledged that this was a challenging matter and there were arguments both for and against the making of an order. However, overall, he was supportive of an order being made for at least the next year given the transitional events occurring in Ms NBZ's life. Whilst adding the disclaimer that implementation of decisions would be a matter for those on the ground assisting Ms NBZ on a day-to-day basis, it was possible that the appointment of an independent decision-maker for Ms NBZ may allow to bring into effect change and services which have not happened over many years.
15. We decided on the basis of all of this evidence that a guardianship order was currently needed.
16. We are of the view that Ms NBZ's decision-making capacity is impacted to the extent that during her pregnancy there will be many decisions regarding her treatment that she will be unable to make alone. Her main source of support in this regard, her mother, whilst clearly wanting the best for her daughter, is unable to provide sufficient support in the current circumstances due to her own limited understanding, and the impact of language and cultural barriers. Ms NBZ needs a guardian appointed with the authority to make health care decisions for her and to provide or withhold consent to medical and dental treatment as required.
17. We are also of the view that there is a current need for the appointment of a guardian with the authority to make decisions as to Ms NBZ's accommodation and provision of services. There is a clear divergence of views as to Ms NBZ's future long-term accommodation. Her accommodation is also likely to be an issue for determination in the short-term due to the care needs associated with pregnancy. As to the matter of the services that Ms NBZ needs, we placed significant weight upon the evidence of the applicant and Ms W. Both indicated that much more could be done in terms of service provision for Ms NBZ if an independent decision-maker could be involved. In particular, it is imperative that Ms NBZ receive her full entitlements under the NDIS and that her package be implemented in her best interests. A guardian is needed at this time.
18. Finally, whilst we only had limited details before us, we are concerned that Ms NBZ is the subject of proceedings stemming from an alleged assault without any clarity as to whether she is being represented in those proceedings. There is a current need for a guardian to be appointed to ensure Ms NBZ is in receipt of legal advocacy to attend to this matter.

Who should be the guardian?

1. 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 (s 15(3), the Act).
2. 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]).
3. Ms NBZ's mother, Mrs OZG, did not explicitly put to us that she wished to be appointed as her daughter's guardian.
4. Ms Jill Hill, separate representative, endeavoured to assist Mrs OZG on the aspect of whether she sought to be appointed and discussed this with her. Ms Hill then put to us that she believed it was very hard for Mrs OZG to take on board the concept of a substitute decision-maker for her daughter and expressed it was her view that Ms NBZ, her daughter, should be the one to make her own decisions, making clear that she did not want to make decisions that her daughter was not happy with.
5. The representative of the Public Guardian, Mr Michael Tyrrell, expressed the view that some of the evidence before the Tribunal in the proceedings suggested that the Tribunal could conclude that in the current circumstances, Mrs OZG's personality may not be compatible with that of her daughter to fulfil the role of guardian pursuant to s 17 of the Act.
6. Whilst we acknowledge that it was not clear to us that Mrs OZG fully understood the nature of the proceedings involving her daughter, we were satisfied that she was not actively seeking to be appointed as her daughter's guardian. As such, we are not required to make an assessment of her suitability for appointment.
7. In those circumstances, having concluded that there is a need for the appointment of a guardian for Ms NBZ, we appointed the Public Guardian of NSW as Ms NBZ's guardian.

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 unless there are exceptional circumstances justifying a longer order.
2. We decided to make an order for one year following which a review will be conducted. This will be a sufficient period of time for Ms NBZ's pregnancy to have been concluded and hopefully sufficient time for decisions to have been made as to need for long term accommodation and services.

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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: 24 April 2018