TOB [2017] NSWCATGD 22

Standing

1. The applications for guardianship and financial management were made by the WSLHD under 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 (LHD) or Specialty Network, rather than the name of an individual health professional.
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". "Person" is defined in s 21 of the Interpretation Act 1987 (NSW) as including "an individual, a corporation and a body corporate or politic".
3. The Tribunal is satisfied that WSLHD is a 'person' for the purposes of s 9(1)(d) of the Act. The Tribunal is satisfied that statutory functions and purpose of a LHD provide a basis for the conclusion that the WSLHD is able to have a genuine concern for Mr TOB. The Tribunal, therefore, is satisfied that WSLHD has standing to make a guardianship and financial management applications for Mr TOB in this matter (see NEJ [2017] NSWCATGD 1).

Evidence

1. The evidence before the Tribunal included the following: 1. The WSLHD's application for guardianship. The application referred to the neuropsychologist's report and her recommendation that a formal substitute decision-maker will be necessary if informal arrangements cannot be achieved. It was stated in the application that, throughout his admission, Mr TOB's sister, Ms PPB, has been Mr TOB's informal decision-maker for decisions pertaining to his lifestyle matters. However, Mr TOB has 'strongly verbalised' his wishes to remain in Western Sydney and to continue to see his friend, Mr HAI. Mr TOB's position has caused great disagreement between Mr TOB and his sister. It was stated that, whilst Mr TOB has been noted by staff to be pleasant and cooperative, it has been observed that Mr TOB displays behavioural changes, including 'verbal aggression and unsettledness' when he has had interactions with his sister. This behaviour is caused by differences in their opinions in relation to where Mr TOB should live and who he should spend time with following his discharge. It was stated that Mr TOB has been noted to become unsettled and upset when his sister asks that Mr HAI not to be involved with Mr TOB's 'hospitalisation', despite Mr TOB's frequent requests for this to occur. The application proposed the Public Guardian as guardian. 2. Mr DPB's application for guardianship. Mr DPB stated that he was making the application because his brother has a brain injury and requires assistance with decision making. He proposed himself as guardian. 3. Health Professional Report Form completed by Dr X, stating that Mr TOB has been suffering from a severe but improving brain injury since 5 January 2017, and that his disability affects his capacity to make informed decisions about lifestyle and financial matters. 4. Neuropsychological Report by Ms Z, Clinical Neuropsychologist, at a Western Sydney Public Hospital. Ms Z conducted an assessment in May 2017 and concluded that Mr TOB's results indicated marked and widespread reductions in his cognitive functioning relative to pre-injury expectations and normal levels for his age, most prominently in executive functions and information processing. She also noted marked reductions in new learning and accuracy of memory recall, whereby learning is slow and restricted to a small amount, and memory recall is limited with reduced reliability. Mr TOB also presented with involuntary movements of his left hand, consistent with the frontal variant of alien hand syndrome. Ms Z also referred to Mr TOB's limited understanding of his injury. It was noted that, whilst fatigue and Mr TOB's culturally and linguistically diverse background may have influenced his performance at times, further control of these factors were not expected to produce marked changes in outcome. 5. Ms Z stated that Mr TOB will have difficulty understanding and appreciating important information relevant to discharge decision-making. He will also find it difficult to consider and hold multiple ideas at once, appreciate complex details and situations, plan a series of steps, as well as compare and contrast different options. His learning and memory impairments will make it more difficult for him to acquire a lot of new information and accurately recall important information as required. 6. Social Work Report by Ms Y, Social Worker, BIRU, of the Western Sydney Public Hospital. Ms Y stated that, whilst Mr TOB has made improvements in areas of his care since his injury, he continues to display cognitive, communicative, and physical impairments. Ms Y stated that Mr TOB will require long-term high-level care. If he were to return to community living, he would need a modified home environment, appropriate equipment, and formal care supports to supplement his family's care of him. Mr TOB's sister had been identified as his informal decision-maker for decisions pertaining to Mr TOB's lifestyle matters. Nevertheless, there have been disagreements between Mr TOB and his sister in relation to his post-discharge accommodation. Mr TOB's sister has strongly expressed her desire to have Mr TOB live with her in Brisbane upon being discharged. Mr TOB, however, has 'predominantly' expressed his wishes of continuing to live in Western Sydney and to continue to have the opportunity to see Mr HAI. Mr TOB's position has, at times, caused great disagreement between Mr TOB and his sister. These interactions have caused Mr TOB to demonstrate unsettled behaviour, aggression, agitation, and impulsiveness. It was reported that Mr TOB has been observed to be 'upset and angry with sister asking her to leave', to be 'distracted' in his sister's presence and to attempt to 'physically strike' her. 7. Ms Y concluded that, due to his cognitive and communicative deficits, Mr TOB is unable to make informed decisions and choices. She noted that it was important that Mr TOB's wishes to continue to live in Western Sydney to be closer to Mr HAI are considered and 'not overridden provided it is safe to do so'. 8. Letter from Ms Y, dated 26 June 2017. In her letter, Ms Y stated that Mr TOB's medical treating team and clinical psychologist have recommended that his participation in the hearing to be limited to 30 minutes. She stated that the rationale behind this recommendation is that it has been observed during his admission that Mr TOB has displayed 'behaviour changes such as unsettledness, agitation, impulsiveness, and [expressions of] suicidal ideations at times'. Ms Y stated that these behaviours have been noted to have been triggered by Mr TOB's interactions with his family and their views as to whom he should spend time with, in particular, Mr HAI. She stated that Mr TOB's clinical psychologist has reported that these discussions during the hearing may trigger Mr TOB to have behavioural changes.

The Guardianship Application

1. The questions which had to be decided by the Tribunal were: 1. Is Mr TOB 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 Mr TOB 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 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. The Tribunal accepts that Mr TOB suffered a severe traumatic brain injury on 5 January 2017. The Tribunal accepts the medical evidence before it, indicating that Mr TOB's injury has resulted in marked and widespread reductions in his cognitive, communicative, and physical functioning.
3. Mr TOB was able to participate in the hearing and give evidence through video conference facilities. He was well-presented, pleasant, and settled. The Tribunal did not form any concerns in relation to his ability, capacity, and willingness to participate in, and remain at, the hearing. Despite some limitations precipitated by his brain injury, Mr TOB appeared to understand the nature of the proceedings and was able to present his views on the determinative issues before the Tribunal clearly.
4. On the basis of the evidence before it, the Tribunal is satisfied that Mr TOB has a disability which prevents him making important lifestyle decisions in an informed manner. He 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). 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. The evidence before the Tribunal indicates that there are currently no decisions that are required to be made with respect to Mr TOB's medical and dental treatment. Should a need arise, Mr TOB's siblings, as persons responsible, are both available and able to make decisions about their brother's medical and dental treatment. They are in frequent communication with Mr TOB's medical team and there is no conflict amongst them in this regard. Indeed, the Tribunal has little doubt that both Ms PPB and Mr DPB, generally, enjoy a close and loving relationship with their brother. Therefore, they do not need the authority of guardianship to make these decisions for their brother on medical and dental treatment and there is no need for a guardianship order in this regard. The Tribunal is also of the view that Mr TOB's siblings would be able to make decisions with respect to their brother's health care informally without a need for the Tribunal to make a guardianship order with respect to this function.
4. Based on the evidence before the Tribunal and the submissions made, it appears that the main area of dispute in respect of decision making is about Mr TOB's access to Mr HAI and Mr TOB's siblings' desire to limit this access. The issue of access, in turn, appears to be intertwined with and determinative of Mr TOB's accommodation and the services he would require. If an order is to be made, the questions that arise are what decision-making functions should be given and who should be appointed as guardian.
5. At the hearing, Mr TOB told the Tribunal that he supported the application for guardianship as he needed someone to make decisions for him in relation to his accommodation and 'work'. He was firm in his view that he wanted to live in the home he shared with his brother in Western Sydney before his hospital admission. He also stated that Mr HAI has been helping him 'a lot'. They have known each other for 15 years and they spent most weekends together. Mr TOB envisaged Mr HAI being involved with his care if he were to return to his home in Western Sydney.
6. In her report, Ms Y stated that Mr TOB has expressed his wishes to continue to live in Western Sydney and to see Mr HAI. She stated that it has been observed by the BIRU staff that Mr TOB interacts well with Mr HAI, without conflict or displaying any behavioural changes. The report also referred to Ms PPB strongly expressing her desire to have Mr TOB live with her in Brisbane upon discharge and requesting that Mr HAI not be involved in her brother's hospitalisation, 'such as not wanting Mr TOB to go on leave from the BIRU with [Mr HAI] despite Mr TOB frequently voicing his wishes for this to occur'. In her oral evidence to the Tribunal Ms Y stated that Ms PPB had previously conveyed the view that the family did not want Mr TOB to spend time with Mr HAI and that they wished to limit how much time they spent together. Ms Y said Mr TOB is ready for discharge pending arrangements for suitable accommodation and that he has expressed the view that he is worried that his right to see Mr HAI would be taken away from him. Ms Y informed the Tribunal that a National Disability Insurance Scheme (NDIS) application has been lodged on behalf of Mr TOB and that he is awaiting the outcome.
7. At the hearing, Ms PPB stated that it was up to her brother to decide where he would like to reside. However, she appeared to be somewhat equivocal in her views. Ms PPB's expressed concern in relation to her brother's safety should he remain in Western Sydney, stating that she had wanted him to move to Brisbane because the Western Sydney unit has 13 stairs. When specifically asked by the Tribunal about the reported conflict between her and Mr TOB, she also expressed concern in relation to her brother's friendship with Mr HAI. She said she did not know if her brother had a fall or if someone had hit him on the head. She said, on the day Mr TOB sustained his injury, she talked to him on the telephone. He then left his apartment and three and half hours later the accident occurred in the absence of any witnesses. She said the last person who contacted Mr TOB was Mr HAI. She was never previously introduced to Mr HAI and did not know him. She said she felt it was unsafe for her brother to live in his own unit and that, if Mr TOB were to move to Brisbane, she would be able to take good care of him. Ms PPB proposed herself as guardian together with Mr DPB, because the latter would be able to give her an idea of what was occurring with Mr TOB and, together, they would be able to help him.
8. In his evidence to the Tribunal, Mr DPB stated that he would like his brother to continue to reside at their Western Sydney home. However, he also shared his sister's safety concerns for their brother, stating that he felt worried or anxious when Mr TOB was on outings in the company of Mr HAI.
9. The evidence before the Tribunal clearly indicates that the apparent difference of opinion between Mr TOB and his siblings, particularly Ms PPB, has given rise to disputes and conflicts. These disputes appear to be impacting on Mr TOB's welfare and interests. The Tribunal accepts Ms Y's written evidence that, in the past, the disagreements between Mr TOB and his sister in relation to his post-discharge accommodation and his desire to continue to see Mr HAI have caused Mr TOB to demonstrate unsettled behaviour, agitation, verbal and physical aggression, and impulsiveness. They have also caused Mr TOB to express suicidal ideations at times. Ms Y reiterated these views at the Tribunal hearing, stating that, whilst Mr TOB's family members have been 'extremely supportive', conflict of views over the past few months have resulted in Mr TOB becoming upset and unsettled.
10. The Tribunal has carefully considered the evidence of Ms PPB and Mr DPB at the hearing. The Tribunal appreciates that the incident in January 2017 and Mr TOB's severe injuries have had a traumatic effect on members of his family. It is understandable that they feel concerned for and protective of his safety. However, there is no evidence before the Tribunal to suggest that Mr HAI was somehow involved in Mr TOB's misfortune. Nor was there any persuasive evidence before the Tribunal to support the view that Mr TOB's safety would be at any risk if he were to continue to associate with and spend time with Mr HAI. It does not appear that, over the past few months, the hospital staff or Mr TOB's medical treating team have identified any concerns in relation to Mr TOB's behaviour in Mr HAI's presence or any other safety concerns. Ms Y has noted that Ms PPB has also been unable to identify any behaviour that could place Mr TOB at risk in Mr HAI's presence.
11. The Tribunal has also taken into account the views of Mr TOB, which he expressed clearly and firmly. Mr TOB's wishes are to remain in Western Sydney and to continue to spend time with Mr HAI. The evidence before the Tribunal indicates that, based on the treating team's recommendations, he would be able to do so, provided that his home environment is modified. Mr TOB's return to his home would also determine the type and level of services that are required to be delivered. Whilst Mr TOB's siblings have both stated that they support his choice of accommodation, it appears that if either or both were to assume the role of substitute decision-maker, their views in relation to access may result in making decisions with respect to Mr TOB's accommodation and, by extension, services that would not be in his best interest.
12. The evidence of Ms PPB and Mr DPB did not persuade the Tribunal that they would respect Mr TOB's wishes. Indeed, Ms PPB's evidence suggested that she may continue to seek to relocate Mr TOB to Brisbane and away from Mr HAI. Mr DPB's evidence also indicated that, if Mr TOB continued to reside in Western Sydney, he would seek to limit his access to Mr HAI due to his own concerns for his brother's safety. These scenarios will no doubt cause Mr TOB to become upset, unsettled, impulsive, and agitated over an unspecified period of time. This would not be in Mr TOB's best interest and would, in all likelihood, result in damaging his existing family relationships.
13. At the hearing, Mr TOB firmly expressed the view that he wanted 'someone who works in the government' to make decisions for him. When asked by the Tribunal why members of his family could not make the lifestyle decisions required to be made, he said 'sometimes if too close it's not good' and that a 'government' decision-maker will be 'fair' to everyone.
14. Taking into account Mr TOB's existing family relationships, his views about residing in Western Sydney and having access to Mr HAI, and giving his welfare and interests paramount consideration, the Tribunal decided to make a guardianship order with decision-making functions in relation to accommodation, access that Mr TOB should receive to others, particularly Mr HAI, and services.

Who should be the guardian?

1. 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'. For the reasons outlined earlier, the Tribunal is not satisfied that Ms PPB and Mr DPB would be able to make decisions in relation to accommodation, access, and services in a dispassionate manner for Mr TOB's benefit in the immediate future. Therefore, in the particular circumstances of this case, the Tribunal is of the view that an independent party should be appointed. There is no suitable and, importantly, independent private person who has been identified to make decisions on these matters and, in the absence of such a person, the Tribunal decided to appoint the Public 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. However, an order of up to three years can be made, if the person the subject of the order has permanent disabilities, is unlikely to become capable of managing his or her person and there is the need for an order longer than one year.
2. The Tribunal decided to make an order for 12 months to ensure that the Public Guardian would be able to undertake important decisions on Mr TOB's behalf with regard to the functions specified in the Tribunal's order.

Endnote

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). 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: 22 December 2017