NVQ [2016] NSWCATGD 38

NCAT Guardianship|2016-10-21

REASONS FOR DECISION

Fifty-four year-old Mr NVQ lives independently in a Housing NSW unit in Inner-City Sydney. Since 1989, he has been the subject of successive guardianship orders made by the NSW Civil and Administrative Tribunal (NCAT) and its predecessor tribunals. Made in December 2015, the most recent order appointed the Public Guardian to act as Mr NVQ's guardian and conferred an advocacy, "legal services and advocacy" and services function for a term of 12 months (the 2015 Order).
These reasons address four interrelated matters: 1. an end-of-term review conducted as required by s 25(2) of the Guardianship Act 1987 (NSW) (the Act); 2. an application made by Mr NVQ requesting review and revocation of the 2015 Orders; 3. an application made by the Public Guardian requesting review and variation of the 2015 Orders to include a "legal instruction" function; 4. an application made by the Public Guardian for the making of a financial management order in respect of Mr NVQ.
At the hearing conducted on 21 October 2016, the Public Guardian advised that it no longer sought the variation of the 2015 Order to include a legal services function and submitted that that order should be revoked as it was "unworkable".
Mr NVQ was separately represented in these proceedings by Mr Mark Norman.
For the reasons that follow we decided to renew and vary the 2015 Order and to make a financial management order in respect of Mr NVQ.

Review of the 2015 Orders

The end-of-term review of the 2015 Order and the reviews requested by Mr NVQ and the Public Guardian raise similar considertions and will be dealt with together.
On review, we may renew, or renew and vary, the 2015 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 Mr NVQ remains "a person in need of a guardian" must be addressed.

Is Mr NVQ a person in need of a guardian?

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 the 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.
The term "social habilitation" is not defined by the Act. In P v NSW Trustee and Guardian [2015] NSWSC 579, Lindsay J considered its meaning in the context of s 3(2) of the Act, at [300]: The expression "social habilitation" (in the context of references to "disability", "restricted", "major life activities" and the word "requires") may be taken to refer to a need for services to help a person to be, or become, able to function normally in community with others.
Successive tribunals have found that Mr NVQ is a person in need of a guardian. In its reasons for making the 2015 Order, the Tribunal (differently constituted) found that Mr NVQ had an intellectual disability and "a major result of that disability was a significant deficit in emotional regulation": at [16]. The Tribunal concluded that Mr NVQ had a disability which prevents him from making important lifestyle decisions: at [17].
Tendered in these proceedings was a comprehensive report prepared by psychologist, Dr Z, dated 9 September 2015. Dr Z has assessed Mr NVQ on four occasions: February 1998, December 1989, March 1992, and most recently in August 2015.
On testing, Dr Z found that Mr NVQ functions in the range of moderate intellectual disability for cognitive reasoning and severe intellectual disability for adaptive behaviour skills. In her opinion, Mr NVQ's cognitive function has decreased over the past 25 years, possibly because of lack of stimulation, possible ongoing epileptic seizures, and the aging process.
In addition, in her opinion, Mr NVQ has symptoms consistent with severe Post-traumatic stress disorder (PTSD) and fits the criteria for Borderline Personality disorder.
Dr Z's opinion apparently was not available to the Tribunal on its review of the 2014 Order. Nonetheless, it is consistent with the finding made by the Tribunal that Mr NVQ suffers from a disability that impedes his ability to manage his person. There is no evidence to contradict that finding.
We find that because of a disability, Mr NVQ is at least partially incapable of managing his person. It follows that Mr NVQ is a person in need of a guardian and the 2015 Order may be renewed.

Compensation claim made against the NSW Department of Education and Communities

It is necessary to sketch in some facts about the claim made on behalf of Mr NVQ against the NSW Department of Education and Communities (the Department). That claim related to alleged traumatic treatment experienced by Mr NVQ while a school student. This claim was the trigger for the applications made by the Public Guardian seeking the variation of the 2015 Order to include a "legal instruction" function and the making of a financial management order.
In an email to the Public Guardian, solicitors acting on behalf of Mr NVQ in respect of the compensation claim, requested the Public Guardian to consent to act as Tutor for Mr NVQ in the proceedings involving the compensation claim. In addition, the solicitors sought instructions to release to Mr NVQ $2000 being "advance monies" received from the Department.
In the application for review of the 2015 Order, the Public Guardian wrote that a legal instruction function was sought so that if agreement with the Department was reached, approval could be given to a settlement figure on behalf of Mr NVQ. As noted above, the Public Guardian no longer seeks this function and urges the Tribunal to allow the 2015 Order to lapse.
Given the limited material before us about the compensation claim, in the course of the hearing, we contacted the solicitor with carriage of the matter, Mario Piperides of Shad Partners Compensation lawyers, to seek further information.
According to Mr Piperides, the claim is listed for mediation in the District Court in March 2017. He stated that, as Mr NVQ lacks capacity to give instructions, there is a need for a Tutor to be appointed. He stated, absent instructions from a Tutor, the claim could not progress. Mr Piperides stated a relative of Mr NVQ had been approached to act as Tutor, but they had declined. Mr Piperides also stated he was unaware of any other person who might be prepared to act as Tutor and for that reason made the approach to the Public Guardian.
Mr Piperides was unable to shed light on who initially gave instructions for the claim to be made against the Department on behalf of Mr NVQ.

Should the 2015 Order be renewed, renewed and varied or allowed to lapse?

In deciding whether the 2015 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 Guardianship Tribunal of NSW, that in conducting an end-of-term review of a guardianship order 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, in conducting this review 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. See also cl 5 of sch 6 to the Civil and Administrative Tribunal Act 2013 (NSW).

Views of Mr NVQ

As noted, Mr NVQ seeks an order that the 2015 Order be allowed to lapse. In the course of the hearing he made conflicting submissions about the orders sought.
Mr NVQ stated that the Public Guardian had "too much power" and he should not be forced to stay with the Public Guardian.
Mr NVQ was highly critical of the staff of Public Guardian. He said that in contrast to Graeme Smith (the director of the Public Guardian), who had previously acted as his guardian, staff of the Public Guardian now responsible for him "did nothing" and no longer contacted him or visited him. He described Mr Smith as "OK".
He said that he would like to move to regional NSW and maybe the Public Guardian could help with that. He said that having discussed the matter with Mr Norman he might stay with the Public Guardian for "health and dental".

Views of the Public Guardian

Ms Graham, for the Public Guardian, did not dispute that Mr NVQ was a person in need of a guardian and was unable to make rational and informed decisions about his person. However, she stated that the 2015 Order should be allowed to lapse as it had become unworkable.
Ms Graham stated that there was a long history of the Public Guardian securing services at the request of Mr NVQ only to find that Mr NVQ refused to accept them. In addition, she claimed that Mr NVQ had a history of threatening staff of the Public Guardian and service providers. She claimed a number of service providers were no longer prepared to provide services to Mr NVQ on account of the risk he posed to staff.
Ms Graham stated that Mr NVQ had unrealistic expectations of the Public Guardian and, in effect, demanded that the Public Guardian act as his "case manager" which she asserted was outside its role. She claimed that Mr NVQ is well aware of the available services in his local area and capable of approaching them. She stated that the relationship with Mr NVQ had become unworkable because of his history of refusing to co-operate with the Public Guardian.

Views of the separate representative

Mr Norman urged the Tribunal to retain a guardianship order. He conceded that Mr NVQ had a history of being unco-operative and aggressive but contended that this was a symptom of his disability and should be considered in that context.
He said that Mr NVQ continued to require assistance with making key decisions and would be vulnerable and at risk if the 2015 Order was not renewed.

The practicality of services being provided to Mr NVQ without the need for making an order

Mr NVQ does not enjoy the support of family and friends. While, as Ms Graham contends, he may have knowledge of available services, we think it unlikely that he has the necessary skills to obtain services and deal with service providers, without a guardianship order.

Findings and conclusions

In deciding whether to renew, renew and vary, or to allow the 2015 Order to lapse, the statement of principles contained in s 4 of the Act requires us to balance a number of competing considerations. On the one hand, i we must observe the principle that Mr NVQ must be protected from neglect, abuse, and exploitation. On the other hand, we must restrict his freedom of decision making and action as little as possible and encourage him as far as possible to live a normal life in the community. The paramount consideration at all times is Mr NVQ's welfare and interests.
We accept that it has been difficult for the Public Guardian to discharge its responsibilities acting in its role as guardian for Mr NVQ. However, if the 2015 Order is not renewed, the result will be that a person with extremely impaired decision-making capacity, who does not enjoy the advantage of a support network, will be left without a substitute decision-maker. In our opinion, it would not be in Mr NVQ's interests for this to occur. While it may be that any guardian appointed will be restricted in the class of decisions it can make on behalf of Mr NVQ, of itself, this does not provide a proper basis for not renewing the 2015 Order.
For these reasons we have decided to renew the 2015 Order.

Who should be appointed guardian?

There is no individual willing to act as Mr NVQ's guardian. Accordingly, we have no option but to reappoint the Public Guardian.

What functions should be conferred?

The 2015 Order conferred an advocacy, legal services and advocacy, and services function on the Public Guardian. We see no reason not to confer an advocacy and services function. In addition, we consider it appropriate to give the Public Guardian a health care function and the power to consent to medical and dental treatment on behalf of Mr NVQ. It is not clear why these functions, which had been conferred under the 2014 Order, were not continued under the 2015 Order.
The more difficult question is whether the Public Guardian can, and if so, should be given a "legal instruction function" in relation to the subject compensation proceedings. The answer to this question involves consideration of the type of functions that can be conferred under a guardianship order and the relationship between such order and a financial management order.
A guardianship order may be plenary or limited: s 16 of the Act. Under a plenary order, the guardian has "custody" of the person and all the functions that a guardian has at law or in equity: s 21(1) of the Act. Subject to any conditions specified in the order made by the Tribunal, a guardian has the power to make the decisions, take the actions, and give the consents (in relation to the functions specified in the order) that could be made, taken, or given by the person under guardianship if he or she had the requisite legal capacity: s 21(2A) of the Act. As noted by an Appeal Panel of the NSW Administrative Decision Tribunal in HH v HI and Protective Commissioner [2009] NSWADTAP 41, the areas in which such decisions, actions, and consents can be given have not been exhaustively defined: see also MN v AN (1989) 16 NSWLR 525.
Our preliminary view is that while the type of functions that may be conferred on a guardian are broad in scope, they do not extend to matters relating to the management of the subject person's estate. That view, in our opinion, is consistent with the scheme of the Act which distinguishes between guardianship orders (Part 3) and financial management orders (Part 3A). Under Part 3A of the Act, the Tribunal may order that the estate of a person be subject to management under the NSW Trustee and Guardian Act 2009 (NSW): s 25E. The "estate" of a person is defined to mean the property and affairs of the person: s 38 of the NSW Trustee and Guardian Act.
While not expressly stated in the Act, it is implicit that the class of functions that may be conferred on a guardian under s 21 of the Act does not include matters relating to the "estate" of the subject person.
The so-called "legal instruction function" initially sought by the Public Guardians is in essence, a power to maintain and settle the claim for compensation made on behalf of Mr NVQ. In our view, that function (or power) is best characterised as a function or power relating to Mr NVQ's estate. That view is consistent with s 16 of the NSW Trustee and Guardian Act which provides that the NSW Trustee and Guardian, when acting in a protective capacity, may, among other things, bring and defend actions, suits, and other proceedings.
It follows that we cannot confer on the Public Guardian the requested "legal instruction" in relation to the claim for compensation made on behalf of Mr NVQ.
But even if we are wrong about the proper characterisation of the requested "legal instruction" function, in our view, it would not be appropriate for the Public Guardian to be given this function. As explained by Ms Graham, the Public Guardian is not equipped to, and has no experience in, giving instructions in legal proceeding involving compensation claims. She asserted that in contrast, the NSW Trustee and Guardian has significant experience in this area.
In addition, it would appear from the Public Guardian's application for review of the 2015 Order, that it was only prepared to give instructions on an "unlitigated basis", which we understand to mean if agreement is reached with the Department. It is not the role of the Tribunal to determine whether, as Mr Piperides believes, the claim made against the Department has reasonable prospects of success and a reasonable offer of settlement is likely to be made. Nonetheless, in our view, it is in Mr NVQ's best interests that any Tutor appointed be able to continue to act if the matter cannot be settled on reasonable terms. It would be most unfortunate that the lack of a Tutor became a determining factor in evaluating whether an offer of settlement should be accepted.

Summary

We have decided to confer on the Public Guardian an advocacy, services, health care function, and the power to consent to medical and dental treatment on behalf of Mr NVQ.

Term of order

For the reasons given by the Tribunal for making the 2015 Order, we consider it appropriate that the guardianship order made in respect of Mr NVQ be the subject of regular review: see Reasons at [35]-[38]. We have decided to make the term of this guardianship order 12 months.

Application for a financial management order

As noted, the Public Guardian has also applied for a financial management order in respect of Mr NVQ. In its application to NCAT, the Public Guardian wrote that it had been advised that a condition of any settlement in relation to the compensation claim is likely to be that a financial management order is in place.
Mr NVQ vehemently opposes the making of a financial management order and does not want his affairs managed the NSW Trustee and Guardian.
Mr Norman supported the making of a financial management order as a "last resort" if, as we raised at the hearing, we determined that a legal instruction function could not be conferred on the Public Guardian. Mr Norman urged us not to include Mr NVQ's disability support pension (DSP) if we decided to make a financial management order, as did the Public Guardian.

Can a financial management order be made?

Section 25G of the Act provides that the Tribunal may make a financial management order in respect of Mr NVQ only if we have considered his capability to manage his own affairs and are satisfied, to the relevant civil standard, of three matters: 1. That Mr NVQ is not capable of managing his affairs; 2. That there is a need for a person to manage those affairs on behalf of Mr NVQ; 3. That it is in Mr NVQ's best interests that the order be made.

Is Mr NVQ not capable of managing his affairs and, if so, is there a need for a person to manage those affairs?

In P v NSW Trustee and Guardian [2015] NSWSC 579, Lindsay J commented at [308] and [309] on the meaning of the phrase "capable of managing those [the subject person's] affairs" in s 25G(a) of the Act: [A] focus for attention is whether the person is able to deal with (making and implementing decisions about) his or her own affairs (person and property, capital and income) in a reasonable, rational and orderly way, with due regard to his or her present and prospective wants and needs, and those of family and friends, without undue risk of neglect, abuse or exploitation. In considering whether the person is "able" in this sense, attention may be given to: (a) past and present experience as a predictor of the future course of events; (b) support systems available to the person; and (c) the extent to which the person, placed as he or she is, can be relied upon to make sound judgements about his or her welfare and interests: CJ v AKJ [2015] NSWSC 498 at [38].
As a first step in determining whether Mr NVQ is capable of managing his affairs, it is necessary to identify the nature of his "affairs". The available material indicates that Mr NVQ's receives the DSP, has no other source of income and no assets. In addition, in the future his affairs may include any compensation awarded in relation to his claim.
While there is some evidence to suggest that, from time to time, Mr NVQ has had difficulties managing his current financial affairs, there is insufficient evidence to make a positive finding that he lacks the capacity to manage those affairs. However, having regard to the extent of his impaired decision-making, we are satisfied that he probably lacks the capacity to undertake the more difficult task of managing that part of his affairs that relate to his claim for compensation.
There is plainly a need for a person to manage that part of Mr NVQ's affairs that relate to the claim for compensation.

Is it in Mr NVQ's best interests that a financial management order be made?

In the event that a financial management order is not made, the claim against the Department will be unable to proceed. As pointed out by Mr Piperides, he has been unable to find an individual willing to act as Tutor for Mr NVQ. None of the people present at the hearing, including Mr NVQ, were able to nominate a person who may be prepared to act as Tutor.
In our view, it would not be in Mr NVQ's interests to be denied the opportunity to pursue the claim against the Department merely because he lacks the capacity to give instructions.
If, as Mr NVQ urges, we decided not to make a financial management order, the likely result would be that the claim against the Department would be discontinued. We think Mr NVQ would feel most aggrieved by that outcome. In comments made in these proceedings he made it clear stated his support for the continuation of that claim.
The assessment of whether it is in Mr NVQ's best interests to make a financial management order also requires consideration to be given to Mr NVQ's strong opposition to the making of such order.
In August 2013, a differently constituted Tribunal decided to dismiss an application for a financial management order because of Mr NVQ's likely adverse reaction to the making of such order. The Tribunal referred in its Reasons (at 9) to the opinion expressed by Mr Graeme Smith (Office of the Public Guardian) that a financial management order is likely to be counter-productive and present a constant source of stress and agitation to Mr NVQ.
We accept as predicted by Mr Smith, that if a financial management order is made, Mr NVQ is likely to become distressed. While not in his interests that this occur especially given the nature of his disabilities, the Catch-22 is that absent a financial management order, his claim against the Department will be brought to a standstill. This is likely in our view to cause Mr NVQ b significant agitation. In our view, it is demonstrably in his interests that he has the opportunity to pursue that claim, given his sense of grievance against the Department and the opinion of the lawyers that the claim has reasonable prospects of success.
We are satisfied that it is in Mr NVQ's best interest that a financial management order be made.

Should a financial management order be made?

The pre-conditions to the making of a financial management order are satisfied. Notwithstanding Mr NVQ's strong opposition, we have decided to exercise the power to make a financial management order.

Who should be appointed to manage Mr NVQ's estate?

There being no person willing to undertake the role of manager of Mr NVQ's estate, we have no option but to commit the management of Mr NVQ's estate to the NSW Trustee and Guardian.

Should a specified part of Mr NVQ's estate of the plaintiff be excluded from any financial management order?

The exclusion of Mr NVQ's DSP from any financial management order is supported by Mr Norman and the Public Guardian.
In P v NSW Trustee and Guardian [2015] NSWSC 579 at [363], Lindsay J emphasised that while s 25E(2) of the Act permits a specified part of an estate of a protected person to be excluded from a financial management order, the power to make a partial management order needs to be exercised with caution, lest due management of a protected estate be prejudiced: Re Application for partial management orders [2014] NSWSC 1468.
We think it unlikely that due management of Mr NVQ's estate will be prejudiced if Mr NVQ's DSP is excluded from that part of his estate which is the subject of the financial management order. In our view, it is desirable that Mr NVQ retain the ability to manage his DSP. For that reason, we have decided to exclude the DSP from the estate of Mr NVQ under management.

Should the financial management order be reviewable?

We have decided that it is appropriate that the financial management order be reviewed in 12 months to determine whether at that time, there is a need for that order to continue.

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: 13 February 2017

Trustee and Guardian Act 2009(NSW)

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