NQK [2020] NSWCATGD 39

The hearing

1. The hearing before us was held on 28 October 2020. Given the effect of COVID-19, the hearing was conducted entirely by video and telephone.
2. At the end of these Reasons for Decision is a list of the witnesses who attended the hearing. [Appendix removed for publication.]

Evidence

1. We had before us various hospital discharge summaries and clinical records issued over the past 12 months relating to NQK.
2. In a letter, dated 9 September 2020, Dr Z provided a detailed account of NQK's mental health history. According to Dr Z, in April 2017, NQK was observed to have lost 11 kg, corresponding to his reduced food intake. In 2018, NQK 'largely' declined to attend the service provider's mental health appointments, perceiving them to be 'a waste of time'. In May 2019, he was observed to have lost more weight and has had decreasing food intake and further weight loss since then, 'consuming a restricted diet consisting of mainly fruit and coffee with milk and sugar'. As he has become malnourished, NQK has disengaged from activities and has reported suffering physical health symptoms affecting his sleep and functioning. He has also declined to take the medications prescribed for his mental health and has refused to engage in physical health checks due to his belief that the results may be used to deem him fit to travel for the purpose of repatriation.
3. Dr Z reported that NQK was initially provided with medication treatment for Major Depression whilst in immigration detention. He was also provided with intensive inpatient treatment for Major Depression during two private hospital admissions to the mental health facility where he was prescribed medication, engaged in supportive psychotherapy and given TMS. During the initial three-month admission, whilst NQK's depressive symptoms improved, his weight decreased during the latter half of the admission. Dr Z stated: "[T]here is clinical consensus that, whilst [NQK] denies engaging in food and health care refusal as a form of protest, his motivations are complex, and his behaviour appears to represent an expression of his anger regarding his immigration situation and the attempt to repatriate him. He retains the capacity to change. this behaviour. His symptoms of Major Depression do not fully explain his pattern of food and health care refusal… Numerous psychiatrist and medical assessments have concluded that [NQK] does not suffer Major Depression of such severity that he is deprived of the capacity to understand that he should take medication treatment as prescribed, increase his oral intake under supervision, and accept admission to hospital for physical and mental health treatment. Because [NQK] has been repeatedly assessed to not meet the threshold for involuntary mental health treatment, -the-highest level of care that can possibly be provided is to repeatedly offer and encourage him to accept voluntary medical and mental health care."
4. On 26 October 2020, Dr Z forwarded to the Tribunal a copy of an Expert Report authored by Dr Y in relation to NQK's capacity. In his detailed report, Dr Y, having interviewed NQK and surveyed the medical records provided to him, concluded: "In my opinion, it is more likely than not that [NQK] suffers from a severe major depressive illness and a mild neurocognitive disorder, the latter being due to severe malnutrition. In my opinion, on the balance of probabilities, as a result of either his severe major depression or his mild neurocognitive impairment or both, [NQK] lacks decision-making capacity with respect to healthcare decisions that involve the comprehension and retention of complex or novel information or the ability to use and weigh such information. In addition, in my opinion, on the balance of probabilities, as a result of his severe major depression, [NQK] lacks decision-making capacity with respect to healthcare decisions that involve using and weighing information in a context where his self-worth or his future prospects are a relevant consideration."
5. On 27 October 2020, the Tribunal received a discharge summary issued by a public hospital. According to these records, NQK was admitted to the public hospital under schedule for treatment of a cystic lesion on his neck. NQK was started on Mirtazapine and discharged on 26 October 2020 after his schedule was overturned.

The Guardianship Application

1. The questions which had to be decided by the Tribunal were: 1. Is NQK someone for whom the Tribunal could make an order because he has a disability which prevents him from being able to make important life decisions? 2. Should the Tribunal make a guardianship order and if so, what order should be made? 3. Who should be the guardian? 4. How long should the order last?

Is NQK someone for whom the Tribunal could make an order because he has a disability which prevents him 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 or 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': the Act, s 3(1). A person with a disability is a person who is: 1. (a) intellectually, physically, psychologically or sensorily disabled; 2. (b) of advanced age, 3. (c) a mentally ill person within the meaning of the Mental Health Act 2007 (NSW); or 4. (d) 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: the Act, s 3(2).
2. The available medical records before the Tribunal indicates that, whilst different clinicians have come to different conclusions at different times regarding NQK's psychiatric condition, a majority formed the view that he has a major depression. In his detailed and nuanced report, based on the medical records available and his interviews with NQK, Dr Y concluded that NQK meets the diagnostic criteria for major depression and that he has likely suffered a severe major depression for over a year, which has not been adequately treated to date. Dr Y was of the view that, "it is more likely than not that [NQK]'s severe major depression colours his view of his future, so that his outlook, which he regards understandably as bleak, is viewed even more negatively than it would be if he were not affected by a major depression".
3. Dr Y also diagnosed NQK with mild neurocognitive disorder. In reaching his diagnosis, Dr Y relied on the clinical records before him, suggesting NQK's continued weight loss and other observations were indicative of severe malnutrition. He noted that, in his experience, "almost all psychiatrists would be confident that severe malnutrition may cause a syndrome manifest by modest cognitive impairment". Dr Y also relied on his interviews with NQK and his poor performance on simple cognitive testing during the course of the interviews. Whilst Dr Y qualified his observations by reference to the fact that English is NQK's second language and that the interviews were conducted over Zoom, he concluded that NQK has a modest cognitive impairment and "lacks decision making capacity with respect to health care decisions that involve the comprehension, retention or utilisation and weighing of complex or novel information".
4. With regard to previous medical assessments suggesting that NQK has decision-making capacity, Dr Y referred to the insufficient basis upon which previous opinions regarding NQK's decision-making capacity had been formed. He noted that on 'almost all' these previous occasions, "the documentation about [NQK]'s capacity is made as bald opinion without any supporting rationale". Dr Y stated: "In my opinion, none of the previously documented opinions on [NQK]'s decision-making capacity with respect to his refusals of healthcare were sufficiently detailed to justify a conclusion that [NQK] was able to comprehend, retain and use and weigh the information relevant to the particular healthcare decisions at issue. In my opinion, a detailed justification was called for given that genuine doubts ought to have been raised with regard to the usual presumption of decision-making capacity in [NQK]'s case because of his severe major depression and his mild neurocognitive disorder, because of the unusual nature of his decisions, and because of the grave consequences of adhering to his voiced objections."
5. Dr Y's report, being a response to specific questions asked by Dr Z, was focused on NQK's decision-making capacity with respect to healthcare decisions and consent to medical treatment. At the hearing, we asked Dr Y whether his opinion regarding NQK's lack of decision-making capacity extends to other lifestyle decisions. Dr Y was of the view that, whilst he had not turned his mind to those matters specifically, NQK's lack of decision-making capacity was likely to extend to any decision that would involve understanding, retaining, using and weighing complex information.
6. With Dr Y's assistance we explained the gist of his findings to NQK, who appeared to agree with Dr Y's assessment and did not express any other views. No one else present at the hearing expressed views contrary to Dr Y's findings.
7. Having carefully considered the medical evidence before us, we found Dr Y's evidence to be detailed, nuanced and persuasive. We accepted and placed weight on Dr Y's report. We were satisfied on the basis of this evidence that NQK has a severe major depression and mild neurocognitive disorder with modest cognitive impairment. We were satisfied that NQK's disability results in him being restricted, at least partially, in one or more major life activities to such an extent that he requires supervision and assistance and is thereby incapable of managing his own person. We were satisfied that a guardianship order could be made for NQK.

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. On the basis of the evidence set out and considered above, we accepted that NQK is unable to make decisions pertaining to medical treatment or healthcare that involve the comprehension, retention or utilisation and weighing of complex or novel information. Specific examples of such decisions provided by Dr Y in his report included: an abdomen CT to assess NQK for superior mesenteric artery obstruction causing abdominal pain and decreased oral intake; taking supplements to manage any nutritional deficiencies, including thiamine; taking medication for the treatment of depression; increased intake of protein in his diet to prevent deterioration of pressure areas and improve his muscle strength; and transfer to hospital for refeeding, orally and by nasogastric tube if needed with regular blood tests to watch for re-feeding syndrome. In relation to the latter, Dr Y noted in his report that, whilst NQK was 'vehemently opposed' to nasogastric feeding, he was unable to weigh the relevant information or understand the possible objective benefits of nasogastric feeding. Dr Y stated that NQK's opposition will provide a 'significant challenge' to those charged with providing him with psychiatric and medical care going forward.
4. At the hearing, NQK did not explicitly express the objections he had relayed to Dr Y during their interview. However, we did not interpret this to mean that he no longer holds those views. Dr Y reiterated his opinion that any attempt to refeed NQK in light of opposition is likely to be challenging and must be handled delicately by the relevant treating team. Nevertheless, in response to our questions regarding the appropriateness of an order that may include the authority to override NQK's objections to medical treatment, including treatment of his depression, Dr Y stated that such authority should be given to an appointed guardian to be exercised only when necessary. NQK's Separate Representative, Mr Burwood, made submissions supporting this view.
5. Ms X from the Office of the Public Guardian was also of the view that a guardian is required to make decisions for NQK with respect to medical and dental treatment and healthcare. Ms X noted that the appointed guardian should be given the authority to override NQK's objections to medical treatment. Ms X further noted that, should it become necessary in the foreseeable future to consider restrictive practices in the course of any treatment given to NQK at a hospital, a services function would enable the appointed guardian to consent to the development of a Behaviour Support Plan.
6. We agreed with these submissions and formed the view that it was appropriate for a guardian to be appointed to make decisions with respect to medical and dental treatment, healthcare and services. We also decided to confer on the guardian the authority to override NQK's objections to the carrying out of major or minor treatment: the Act, s 46A. We were satisfied that NQK's objections to treatment are because of his lack of understanding of the nature of, or reason for, the treatment.
7. As already noted, NQK is currently detained at an immigration detention centre with no apparent prospects of being released into the community. NQK has in the past refused being transported to hospital from the immigration detention centre in order to receive treatment. The evidence before us indicated that a few days prior to the hearing, NQK was admitted to the public hospital to be treated for a cystic lesion on his neck. The admission had been under schedule due to NQK's refusal to receive treatment. We accepted that medical decisions made on behalf of NQK may involve his transfer to and temporary stay at hospital for refeeding. In this context, we deemed it necessary to confer upon the appointed guardian the function of accommodation with the additional power to authorise others to take NQK to a particular place, to keep him there and return him to that place.
8. Furthermore, BNC continues to represent NQK in connection with his outstanding immigration matters, as well as a complaint to the United Nations Human Rights Committee for consideration under the Optional Protocol to the International Covenant on the Civil and Political Rights. We were of the view that providing instructions in relation to these matters require comprehension and retention of complex information or the ability to use and weigh such information. BNC told the Tribunal that she was so concerned about NQK's condition that she was contemplating engaging appropriate psychological support services in connection with any consultation with NQK regarding legal instructions. We were persuaded that the appointed guardian should have a legal services function in order to seek advice from and instruct BNC on behalf of NQK.
9. In summary, having regard to the mandatory considerations set out in s 14(2) of the Act and after weighing the principles contained in s 4 of the Act, we were satisfied that a guardianship order should be made for NQK. We formed the view that there are decisions that are required to be made in relation to NQK's accommodation, health care, consent to medical and dental treatment, services and legal services. We were further satisfied that there are sufficient grounds upon which to base a view that it would be necessary for the substitute decision-maker to have additional authority to override NQK's objections to the carrying out of major or minor treatment, as well as powers to authorise others to take NQK to a particular place, to keep him there and return him to that place. Given the principles of s 4 of the Act, the Tribunal is generally loath to provide an appointed guardian with such authorities. However, we were satisfied, on the evidence, that these additional powers were necessary in all of the circumstances to ensure that NQK is adequately cared for.

Who should be the guardian?

1. 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, [66]).
2. Section 15(3) of the Act provides that the Public Guardian should not be appointed 'in circumstances in which such an order can be made appointing some other person as the guardian of the person'.
3. We were satisfied that there were no other private guardians available who are able to exercise the functions specified in this order. In the absence of any private guardians, we appointed the Public Guardian as NQK'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. In view of the restrictive nature of the orders we have made, we decided to make a shorter order for six (6) months to enable the Public Guardian to undertake important decisions on NQK's behalf with regard to the functions specified in the Tribunal's order.

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: 08 March 2021