NEJ [2017] NSWCATGD 1

The hearing

1. The hearing was conducted in Sydney by videoconference from the public hospital. It was attended by Ms NEJ, Mr KAJ, Ms SBJ, Mr TCJ, Ms SML, social worker, Ms KMH, RN, Ms Lina Versace, social work manager, and Dr Z, medical registrar. Ms Pamela Hall from the NSW Public Guardian participated by telephone.
2. At the end of these Reasons for Decision are lists of the parties to the application. [Appendix removed for publication]

Does SWSLHD have standing to bring the application?

1. The application for guardianship was made by the SWSLHD in accordance with a guideline issued by the Ministry of Health [1] , which recommends that applications to this Tribunal for guardianship orders be made in the name of the Local Health District or Specialty Network, rather than the name of an individual health professional. This is a departure from the usual practice of individual practitioners such as social workers making applications for guardianship orders.
2. Section 9(1)(d) of the Guardianship Act 1987 (NSW) (the Act) provides that an application for a guardianship order can be made by the person who is the subject of the application, the Public Guardian or "any other person who, in the opinion of the Tribunal, has a genuine concern for the welfare of the person".
3. On 13 January 2017, the Tribunal conducted an interlocutory hearing for the purpose of seeking submissions on the question of the standing of the SWSLHD to make an application. Shortly before the interlocutory hearing, the Tribunal received a written submission from the NSW Crown Solicitor, acting on behalf of the SWSLHD, addressing this question. The Tribunal granted leave to the Crown Solicitor to represent the SWSLHD in relation to this issue. This matter was determined by the Tribunal at the commencement of the substantive hearing.
4. In relation to the question of whether the SWSLHD is a "person", the submission notes that "Person" is defined in s 21 of the Interpretation Act 1987 (NSW) as including "an individual, a corporation and a body corporate or politic".
5. The submission continues that the Local Health District (LHD) is constituted under s 17 of the Health Services Act 1997 (NSW) and is a body corporate and is therefore a person for the purposes of s 9(d) (sic) [2] of the Act, "except in so far as the contrary intention appears" in the Interpretation Act or in the "instrument concerned" (s 5(2), Interpretation Act). There is no contrary intention expressed in either the Interpretation Act or the Act that would suggest that "person" in s 9(2) (sic) [3] of the Act does not extend to a body corporate, including the LHD.
6. Section 22 of the Health Services Act provides that the LHD may take proceedings, and be proceeded against, in its corporate name, and may do all other things that a body corporate may, by law, do and that are necessary for or incidental to the purposes for which the Local Health District is constituted.
7. No other submissions were made in relation to this issue by the other parties. Noting the legal definitions referred to, the Tribunal was satisfied that the SWSLHD is a "person" and as such can make an application under the Act provided the other criterion is satisfied.
8. Further, the Crown Solicitor submitted that the LHD has a "genuine concern for the welfare" of Ms NEJ, noting s 8(2) of the Health Services Act, which provides that: The principal reason for constituting local health districts is to facilitate the conduct of public hospitals and health institutions and the provision of health services for residents of the areas of the State in respect of which the districts are constituted.
9. Section 9 of the Health Services Act states that the primary purpose of a LHD is to provide relief to sick and injured persons through the provision of care and treatment and to promote, protect, and maintain the health of the community.
10. Section 10 of the Health Services Act states that the primary functions of the LHD relevantly include: 10 Functions of local health districts … (a) generally to promote, protect and maintain the health of the residents of its area, (b) to conduct and manage public hospitals, health institutions, health services and health support services under its control, … (f) generally to consult and co-operate (as it considers appropriate) with any one or more of the following: … (ii) health professionals practising in its area, (iii) other individuals and organisations (including voluntary agencies, private agencies and public or local authorities) concerned with the promotion, protection and maintenance of health, …
11. The Crown Solicitor submitted that the purpose and role of the LHD demonstrate that the LHD is able to have " a genuine concern for the welfare " of persons being provided with health care in its area such that it may apply under s 9(d) (sic) [4] of the Act in respect of Ms NEJ. While the provision of health services in accordance with the LHD's role and purposes is achieved through, for example, health care professionals such as doctors, nurses, and so on, the Health Services Act refers to these functions being performed by the LHD.
12. The Crown Solicitor referred to the decision of the former Administrative Decisions Tribunal (ADT) Appeal Panel in Minister for Disability Services v People with Disability Australia Inc. (CSD) [2010] NSWADTAP 44, in which the ADT considered the standing of "People with Disability Australia Inc." (PWD) to apply as an interested person under the Administrative Decisions Review Act 1997 (NSW). Applications could be made to the ADT under s 29 of the Community Services (Complaints, Reviews and Monitoring) Act 1993 (NSW) (CRM Act) "by any person who demonstrates to the satisfaction of the Tribunal that he or she has a genuine concern in the subject­ matter of the decision concerned...". One of the issues on appeal was the Tribunal's finding at first instance that PWD held a "genuine concern". The Appeal Panel referred to the use of the term "genuine concern", stating that these words are not precise or narrow and should be understood in the context of the statutory scheme in which they are used. The Appeal Panel considered that the protective nature of the jurisdiction informs the decision about whether there is a "genuine concern".
13. The Appeal Panel stated (at [79]): Where the applicant is an organisation, the genuineness of the applicant's concern would, we consider, be likely assessed in a way that has regard to the issues raised by the proceedings; the content of its constitution especially the objects clause; the organisation's aims as generally described by it; and the level of the organisation's practical activity in pursuit of its objects and aims. These are simply examples of ways in which the judgement as to 'genuineness' might be informed.
14. Whilst that decision was set aside by the Court of Appeal, the issue of the standing of the PWD to bring the application was not at issue in the appeal.
15. The Crown Solicitor also referred to the decision of CJH v Department of Family and Community Services [2016] NSWCATAD 162, in which Principal Member Higgins considered that the words "genuine concern" are uncontroversial and should be given their ordinary meaning (at [56]). In that decision, Principal Member Higgins refers to the decision in TC v Public Guardian & Ors [2006] NSWADTAP 15, where the Appeal Panel of the ADT commented on s 9 of the Act as follows: While most standing requirements in legislation prevent a person from litigating about the violation of another person's rights or interests, applicants for guardianship and financial management orders (other than the subject person) are doing just that. Because the subject person is unable to manage his or her personal and/or financial affairs, there is a public interest in someone else who "has a genuine concern" for their welfare, making an application. Consequently, in many cases, the applicant will have no separate interest from the interests of the subject person. The nephew himself does not have a relevant interest, right or legitimate expectation that stood to be affected by the Tribunal's decision. But he was concerned about TD's welfare and said he had her interests in mind when making the application....
16. The Crown Solicitor's submission concludes: Having regard to the LHD's functions and role as set out in the Health Services Act, and noting that the Appeal Panel had no difficulty in finding that an incorporated body was able to have a "genuine concern" under the CRM Act, where the LHD makes an application under s. 9(d) (sic) [5] in relation to a patient, it makes that application having a genuine concern for that person's welfare. An interpretation of s. 9(d) (sic) [6] that would deny the LHD standing to make such an application would be unduly restrictive, and would fail to recognise the protective character of the legislation.
17. There was no submission on this point from any other party.
18. The Tribunal carefully considered the Crown Solicitor's submissions, and was satisfied that the protective nature of the guardianship jurisdiction and the statutory functions and purpose of a LHD provide a basis to conclude that the SWSLHD is able to have a genuine interest in Ms NEJ's welfare. In coming to this view, the Tribunal particularly noted the Health Services Act provisions which refer to the LHD's role to provide relief to sick and injured persons through the provision of care, and generally to promote, protect, and maintain the health of the residents of its area.
19. As set out below, Ms NEJ is a woman with complex health issues who has been in hospital for some time. Occupational therapist assessment is that Ms NEJ is unsafe and unable to care for herself at home. The purpose of the application is to determine whether a guardian is required to assist in the process of planning for her discharge from hospital. In the Tribunal's view, whilst the SWSLHD has an interest in not keeping people in hospital if they do not need hospital-level care, this interest is not in conflict with the genuine concern regarding Ms NEJ's welfare on discharge from hospital.
20. On this basis, the Tribunal found that SWSLHD has standing to make the application for a guardianship order for Ms NEJ.

What did the Tribunal have to decide?

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

• Is Ms NEJ 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 NEJ 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 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) of 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 (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 (s 3(2) of the Act).
2. The Tribunal considered reports from Dr Y, neuropsychologist (19 December 2016), Dr X (21 December 2016), and from Ms W, occupational therapist (undated). Taken together these provide a detailed picture that Ms NEJ has longstanding schizophrenia, alcohol abuse, and cognitive decline, which has worsened markedly in the previous 12 months.
3. Ms W conducted a home visit and observed Ms NEJ to be living in squalid conditions, sleeping on a cigarette-burned mattress with no bedding, with no evidence of recent cleaning of the house or herself. There is a reported history of refusing assistance in the home.
4. Dr X reports that Ms NEJ neglects her health and does not attend her appointments with community mental health. Dr Y notes that Ms NEJ has significant impairment primarily affecting her frontal and temporal regions, with new learning and memory a significant concern. Whilst she notes that continued abstinence from alcohol may lead to some improvement, at present, in her view, Ms NEJ's executive dysfunction, including impaired reasoning, awareness, and insight into the relevant issues confronting her lifestyle would make it very difficult for her to weigh up her options and their consequences. Dr Y recommends that an alternate decision-maker should be appointed to make decisions regarding Ms NEJ's accommodation, lifestyle, and medical care.
5. At the hearing, the Tribunal heard evidence from Dr Z and Ms SML which was consistent with the reports referred to above. Ms NEJ was not willing to comment on this question except to say that she could make her own decisions. However, her presentation at the hearing was consistent with the assessments. Her children did not think that she could make decisions for herself.
6. On balance, the Tribunal was satisfied from the available evidence that Ms NEJ has a disability and is not capable of making important decisions on her own behalf. She is a person for whom the Tribunal could make a guardianship order if necessary.

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). 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. As stated above, Ms W's report provides a detailed picture of the unsafe and unsuitable circumstances in which Ms NEJ has been living. The recommendation is that she requires a move to a residential aged care where there is 24-hour supervision. Services at home alone are not sufficient.
4. At the hearing, Ms NEJ's children told the Tribunal that their mother was not safe living at home and described a number of incidents where she has been lucky not to be very badly injured. She was found one day lying face down on the road; she has been found collapsed at the shopping centre; she has walked through a glass pane. She also loses her house keys regularly and her phone so she can be uncontactable for extended periods. Ms NEJ's neighbours have talked with her children about their concerns about her behaviour and vulnerability. When they have tried to help her to remain safely at home, by offering to arrange and pay for home care services, she has refused this assistance.
5. Dr Z said that Ms NEJ has thrived whilst she has been in the hospital because of the care she has received. Her health has improved, she is engaging well, and she has put on some weight. This confirmed that a move to supported accommodation will be likely to suit her well.
6. Ms SML confirmed that Ms NEJ has not been agreeable to the proposal that she move to aged care. Ms SML said a guardian is needed to make an accommodation function, and a services function, but that her children can make decisions about her health care and consent to medical and dental treatment as persons responsible. No ACAT assessment has been possible because of Ms NEJ's unwillingness to consider a move to aged care.
7. Ms Hall submitted that a guardianship order is needed to make decisions about Ms NEJ's accommodation. She was of the view that there was no need for a services function because guardians can consent to an ACAT assessment as part of an accommodation decision.
8. The Tribunal carefully considered the evidence and decided that a guardianship order is necessary and the guardian should be given authority to make decisions on Ms NEJ's behalf regarding her accommodation and services. The Tribunal noted the Public Guardian's submission regarding the need for a services function, but considered that the more usual approach is that an ACAT assessment is a service and that on this basis a properly authorised guardian will require a services function.
9. The Tribunal decided on the basis of all of this evidence that a guardianship order should be made.

Who should be the guardian?

1. There is a proposal that Ms NEJ's children be appointed guardians for Ms NEJ. 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. They 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. Ms SML recommended that Mr KAJ, Ms SBJ, and Mr TCJ all be appointed jointly as guardians for their mother. They were all agreeable with this and confirmed that they have a good relationship with each other and a good relationship with their mother although she is not happy with them at the moment because of this application. They are able to discuss and reach mutual decisions about important matters and saw no difficulty cooperating with each other about the decision regarding their mother's accommodation.
5. Ms NEJ said she was not sure about her children being her guardians and that she might prefer a government Department. However, on further discussion, this did seem to be a feature of her current irritation with them because of her unease in the hearing. She demonstrated that she was generally on good terms with her children and close to them.
6. The Tribunal was satisfied that each of Ms NEJ's three children meets the requirements to be appointed as the private guardian for Ms NEJ. The Tribunal was satisfied that it was appropriate and in Ms NEJ's best interests to appoint Mr KAJ, Ms SBJ, and Mr TCJ jointly as her guardians to make decisions about her accommodation and services.

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.
2. The Tribunal decided to make the order for nine months, noting that there are likely to be only a few decisions to make, and that the need is unlikely to be ongoing. Ms SML said that it may take a little while for suitable accommodation to be located because there is high demand and low availability in the area and that Ms NEJ may take a while to settle in. However, the Tribunal was satisfied that nine months should provide sufficient time for the necessary decisions to be made and Ms NEJ to have the opportunity to settle in.

Should a non-reviewable order be made?

1. As the purpose of the order is essentially to enable a decision to be made about Ms NEJ's accommodation, the Tribunal considered it likely that no further order will be needed after this time. On this basis the Tribunal is satisfied that it is in Ms NEJ's best interests that the order not be reviewed when it expires unless a specific request is made for a review.

Endnotes

1. Ministry of Health - System Relationships and Frameworks, The Guardianship Application Process for Adult Inpatients of NSW Health Facilities, (Guideline No GL2016_026, NSW Ministry of Health, 4 November 2016).
2. Section 9(1)(d) of the Guardianship Act 1987 (NSW)
3. Section 9(1)(d) of the Guardianship Act 1987 (NSW)
4. Section 9(1)(d) of the Guardianship Act 1987 (NSW)
5. Section 9(1)(d) of the Guardianship Act 1987 (NSW)
6. Section 9(1)(d) of the Guardianship Act 1987 (NSW) 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

Amendments 21 November 2017 - Amended reference to case OH v Department of Family and Community Services [2016] NSWCATAD 162 to CJH v Department of Family and Community Services [2016] NSWCATAD 162. 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: 21 November 2017