SDL [2020] NSWCATGD 50

Is SDL 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 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. 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: the Act, s 3(2).
2. The term "social habilitation" is not defined in 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 [303] 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.
3. We were provided with a number of health and medical reports regarding SDL that dated back to 2012.
4. A letter dated 10 May 2012 from Dr Y, a Paediatric Neurologist, indicates that SDL had been diagnosed with a chromosomal abnormality that is associated with learning and behavioural issues, and that SDL had been diagnosed with attention deficit hyperactivity disorder.
5. A report by a school counsellor compiled in 2015 when SDL was fifteen years old indicates that at that time he was performing at the equivalent of a year 1 or 2 student.
6. A Speech Pathology assessment dated 29 March 2018 compiled by Ms X indicates that SDL had severely delayed language skills including delayed reading accuracy and vocabulary,
7. A Positive Behaviour Support Plan dated 1 December 2019 compiled by Ms W indicates that SDL has been diagnosed with a mild intellectual disability, attention deficit hyperactivity disorder and oppositional defiant disorder.
8. NAE said that she believes that SDL is not able to make major decisions because he does not understand options and finds it hard to express himself and his emotions.
9. LZE said that she believes that SDL tries hard to make good decisions but is easily influenced by others whom he seeks to please. He has difficulty expressing his emotions and becomes very angry when attacked.
10. SDL agrees that he needs assistance for complex matters such as understanding doctors' comments.
11. We were satisfied on the basis of the current and historical health and medical reports as well as the oral evidence provided during the hearing, that SDL has a condition that restricts his ability to manage his lifestyle including making major decisions. He is, therefore, 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. (i) the person; 2. (ii) the person's spouse; 3. (iii) 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) 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).

Accommodation and services

1. We were advised that when he was two years old SDL commenced a foster placement with NAE and that the placement continued until recently when it broke down suddenly. SDL then resided temporarily with LZE before securing his current supported independent living placement in a group home managed by an aged care service provider.
2. There has been confusion and some discord regarding SDL's NDIS arrangements. LZE has been able to access his NDIS Plan and she believed that she was his NDIS nominee. However when SDL left his foster placement with NAE, QYS had sought an NDIS nominee and SDL's birth mother, Ms Z had been nominated. There are now some differences of opinion as to where SDL should live.
3. Ms Z said that she had thought that the group home placement would be good for SDL and that she had consented to the placement. There have since been some issues with the manager and staff and she only speaks to them when she wants to see SDL. She said that apart from those contacts she wants nothing to do with the staff at the group home. When asked for further details about the issues of concern, Ms Z said that whilst she believes that the staff have assisted SDL regarding his activities of daily living she believes that some other needs have been neglected,
4. LZE said that she is in regular contact with the service providers at the group home and is happy with the care and services provided. She said that she has discussed a plan to proceed with budgeting training for SDL.
5. QYS said that: 1. SDL's NDIS package largely comprises funding related to his accommodation with less than $2000 remaining for additional services. 2. SDL receives additional funding under a Victims compensation payment to provide for access to a psychologist. 3. She is working with the aged care service provider to seek increased NDIS funding at SDL's NDIS review next year. 4. She usually seeks the views of both LZE and Ms Z regarding any issues but sometimes Ms Z has left messages saying that she intends to remove SDL from his current accommodation and that QYS will need to find him alternative accommodation.
6. NAE said that she approves of SDL's current accommodation and that she visits him there regularly. He also stays at her home sometimes.
7. SDL said that he likes his current accommodation and wants to stay there.
8. Mr V, who is the Manager at the group home, said, in effect, that delivering support and services to SDL at his accommodation is a long-term prospect and a number of supports put in place will bear fruit in years to come. By way of example he mentioned training in using public transport and some supported employment.
9. We were satisfied on the evidence that there are some current issues regarding SDL's accommodation and services and that there is a need to clearly identify formal decision-making responsibility about those matters.

Health Care and Medical/dental treatment

1. As noted in the section of these Reasons dealing with SDL's ability to manage his lifestyle, he said that he has difficulty in understanding comments made by doctors.
2. NAE said that she has been attending to SDL's medical and dental needs since he came to live with her when he was two years old. She said that he currently needs dental work which he had refused. However she believes that that he needs support and that he would have the dental work done if she accompanied him to the dentist. She was concerned that she had not been advised about the dental appointment as Ms Z had given her name as the contact person. We were unable to discuss the matter with Ms Z because the telephone connection to her appeared terminated at this point.
3. We were satisfied that there is a need to appoint a guardian to make decisions for SDL about his health care to authorise access to information about his health and medical treatment and to authorise transmission of that information to other treating personnel.
4. SDL indicated that he has difficulty understanding doctors' comments and we were of the view that there is a need for a substitute decision maker to make decisions about his medical treatment. The provisions of the Act are such that a person who had the care of SDL prior to his moving into the group home could be considered a 'person responsible' to consent to medical treatment where he is unable to do so. We were of the view that as there has been an issue about notification of proposed dental treatment it is in SDL's best interests to clearly identify who has responsibility for his health and medical decisions. Accordingly in our view there is a need to appoint a guardian to make those decisions.
5. SDL continues to receive support from his former foster carer and her sister and is in contact with his birth mother. We note that there is some evidence of lack of congruence between the views of NAE and LZE on the one part and Ms Z on the other part, about some aspects of SDL's life, however in our view the appointment of a guardian to make the decisions referred to above would not adversely affect his family relationships. There was no evidence that making an order would adversely affect any cultural or linguistic affiliations of SDL.
6. Taking into account the evidence reviewed above and our conclusions as set out in the preceding paragraphs we decided to make an order appointing a guardian to make decisions for SDL about his accommodation, services, health care and medical/dental treatment.

Who should be the guardian?

1. 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. He or she 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, [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. 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: the Act, s 15(3).
5. 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]).
6. NAE and LZE proposed that they be appointed separately to make decisions, respectively, about SDL's health and medical treatment on the one part, and his services and accommodation on the other part. SDL agreed to this proposal.
7. On the basis of their evidence during the hearing and SDL acceptance of their proposal, we were satisfied that NAE and LZE has personalities that are compatible with that of SDL.
8. On the basis of their evidence we were satisfied that that NAE and LZE have an understanding of SDL's needs and are willing to carry out the functions of the order. Accordingly we appointed them separately as guardians with the functions indicated.

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. We made the order for 12 months because we are of the view that it will take some time consolidate decisions for SDL prior to reviewing the ongoing need for an 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: 04 May 2021