TZM [2019] NSWCATGD 6

What did the Tribunal have to decide?

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

• Is TZM someone for whom the Tribunal could make an order because she has a disability which renders her totally or partially incapable of managing her person?
• 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 TZM someone for whom the Tribunal could make an order because she has a disability which renders her totally or partially incapable of managing her person?

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/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. Accompanying the guardianship application were: 1. A brief report dated 5 October 2018 by TZM's usual doctor, Dr Z of a medical centre in regional NSW; this states that TZM has Down's syndrome and a moderate intellectual disability, and lacks the decision-making capacity for medical decisions of a major nature; 2. A hospital discharge referral for TZM dated on or about 8 January 2019, issued by Hospital A and addressed to Dr Z; this records TZM's diagnosis of Down's Syndrome with severe cognitive disability; and 3. A copy of a document concerning TZM which appears to have been prepared by the disability service provider in late-2017 and is entitled "My Health and Wellbeing Plan"; this records a longstanding diagnosis of Down's syndrome and "mental development delay", and notes that TZM requires support in attending medical appointments, explaining symptoms, going to hospital and undertaking medical tests.
3. This evidence was: 1. Corroborated anecdotally by oral evidence from the Applicant, Mr Y (TZM's brother), Ms X (Team Leader at the group home where TZM usually lives) and Ms W (key worker at the group home); and 2. Consistent with the Tribunal's own independent conclusion, drawn from conversations with (and observations of) TZM during the hearing.
4. The Tribunal is satisfied that TZM has a disability which renders her totally or partially incapable of managing her person. Accordingly, she 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) 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. There was no suggestion that any special linguistic or cultural factors were of relevance in considering the application.
4. The Applicant and Mr Y indicated that TZM's oldest sister, Mrs V, had acted for many years as the informal decision maker for TZM but that with Mrs V's advancing age, her continuation in this role was no longer appropriate. The Applicant frankly disclosed that this proposition was not one with which Mrs V necessarily agreed, and that whilst it (and its primary consequence, namely the present application) may lead to tensions in relationships between the Applicant and Mr Y, on the one hand, and Mrs V, on the other, this was a matter between them which was unlikely to affect personal relations between TZM and Mrs V. Mr Y agreed with this assessment.
5. The Tribunal asked the Applicant to explain why it was, some 49 years after TZM reached the then age of legal majority, that the formal appointment of a guardian was now desirable. The Tribunal suggested that: 1. During that time, all relevant decisions for TZM appear to have been made satisfactorily on an informal basis, including accommodation, health care and treatment decisions, whether by TZM herself or by one or more family members, and 2. at least so far as treatment decisions are concerned, her brother and sisters are each clearly "persons responsible" under s 33A(4)(d) of the Act, and accordingly authorised by statute to provide consent on her behalf to medical or dental treatment for which she is unable to give informed consent. Considering this background, the Tribunal asked, what relevantly had occurred to recommend the making of a guardianship application?
6. Ms X, with the Applicant's concurrence, gave the following explanation: 1. TZM participated in mid-2018 in the National Bowel Cancer Screening Program, and the results of her screening test indicated concerns sufficient for the pathologist who reviewed the results to suggest that she consult her doctor about further investigation; this is set out in a letter of 3 August 2018 sent to TZM by the National Bowel Cancer Screening Program; 2. On 14 August 2018 TZM's doctor, Dr Z, made an application to Hospital A on TZM's behalf for her to have a colonoscopy, and she was placed on the relevant waiting list; 3. Towards the end of August 2018 Hospital A informed TZM that it was unwilling to proceed further with the application unless it was made with the consent of a formally appointed guardian; 4. Ms X, Mrs V, the Applicant and Dr Z all disputed this approach with Hospital A; in the course of doing so at least one of TZM's sisters (and thus a person responsible under Pt 5 of the Act), wrote to the Hospital requesting and expressly consenting on TZM's behalf to the proposed colonoscopy; 5. The Hospital remained adamant that it would neither accept nor further progress the application without the consent of a formally appointed guardian, and that it considered consent from a person responsible to the proposed procedure other than an appointed guardian or enduring guardian to be insufficient; without the consent of a guardian, it said, it would have no option but to remove TZM from the waiting list for a colonoscopy; 6. On 20 October 2018 the Hospital wrote to TZM, informing her that her "… booking for a procedure at this has [sic] been removed from our Waiting List ….. if you wish to re-book your procedure in the future you will be required to contact your doctor"; 7. In consequence, Ms X said, in order to ensure that the further investigations occur which are necessary to ascertain whether TZM is at risk of bowel cancer, a guardianship order should be made, covering both health care decisions (to allow for the making of appointments) and consent to medical and dental treatment (to allow for the actual performance of the colonoscopy and any associated or consequential treatment); 8. Finally, the success of her osteomyelitis treatment is still under assessment; depending on the outcome, there are several possibilities: 1. She returns safely to her present accommodation; 2. She has a knee replacement; for some time there have been concerns about her ability to cope with major surgery of this kind and accordingly there has been a preference not to subject TZM to a knee replacement, but if her osteomyelitis continues this view will need to be reconsidered; and 3. A change of accommodation may become necessary if the osteomyelitis treatment is not sufficient to correct her condition, a knee replacement remains excluded, and either her current accommodation is unable to address her care needs adequately on a medium to long term basis or, as may be the case, government funding for her is (because of her extended hospitalisation) redirected in such a way as to make her resumption of residence in the group home financially impossible; all interested parties are keen for her to return to the group home as soon as she can and to stay there for as long as practicable, but it must be recognised that there is a realistic medium term risk that this will not be possible, in which case accommodation (and, potentially, services) decisions will be required on her behalf.
7. The Applicant and Mr Y both agreed with this assessment and supported the making of a guardianship order which covered decisions concerning TZM's health care, medical and dental treatment, services and accommodation.
8. No representative of Hospital A participated in the hearing and so the Tribunal was unable to obtain directly the Hospital's views concerning its approach to consents under Pt 5 of the Act given by persons responsible who are neither formally appointed guardians nor enduring guardians. The absence of direct evidence from the Hospital does not, however, prevent the Tribunal from making the orders sought, since: 1. It is quite clear from the Hospital's letter of 20 October 2018 that TZM has been removed from the waiting list; 2. It is equally clear from the recommendation in the National Bowel Cancer Screening Program's letter of 3 August 2018 that it is desirable in TZM's interests for her to have further testing; 3. That Dr Z applied for the relevant investigations to be undertaken indicates that she shares the concerns which underlie that recommendation; 4. The Applicant, Ms X and TZM's keyworker, Ms W, are each of the view that; 1. the colonoscopy needs to be undertaken as soon as possible; 2. without it, the risk of unidentified and untreated bowel cancer remains; and 3. from their discussion with the Hospital, the only practical way to resolve promptly the current impasse will be through the appointment of a guardian to consent to (and to the application for) the colonoscopy.
9. The Tribunal decided on the basis of all of this evidence that a guardianship order should be made, covering decisions concerning TZM's accommodation, health care, service support and medical and dental treatment.

Some observations about Part 5 of the Guardianship Act 1987

1. Without hearing its account of events, the Tribunal considers it inappropriate to speculate concerning Hospital A's approach to consents given on behalf of patients under Pt 5 of the Act by persons who identify as a patient's person responsible (within the meaning of that Part) but are not formally appointed as the patient's guardian or enduring guardian.
2. That being said, however, some general observations concerning Pt 5 of the Act and its application may be useful: 1. Part 5 of the Act regulates the issue of patient consent to the administration of treatment by a medical or dental practitioner. 2. It starts in s 35 of that Act by prohibiting treatment without the informed consent of the patient and then through a series of exceptions provides a safe harbour to practitioners in which they can nonetheless still provide treatment to the patient in particular circumstances. 3. One set of exceptions is found in s 37 of that Act, which allows treatment without consent in emergencies, or where the treatment is minor in nature. 4. Relevant to this matter, however, are the second set of exceptions. These are set out in s 36 of that Act, and allow a practitioner to enter the safe harbour where either this Tribunal, or someone with a sufficient relationship with the patient - a "person responsible", as defined in s 33A of that Act, gives consent on the patient's behalf.
3. The list in s 33A of the Act, of persons responsible who may consent on the patient's behalf, practically divides into two categories: 1. On the one hand, there are those whose status as persons responsible can be shown using documentary evidence. An enduring guardian or a guardian appointed by this Tribunal [footnote omitted for publication] can do so by producing the relevant enduring guardianship appointment or guardianship order. Similarly, a spouse [footnote omitted for publication] to whom the patient is legally married can provide a marriage certificate in order to prove the relationship. 2. On the other hand, some kinds of person responsible cannot easily prove their status by producing a specific document. These are a de facto spouse [footnote omitted for publication], a carer [footnote omitted for publication] or a close friend or relative [footnote omitted for publication] of the patient.
4. In these cases, the treating practitioner should form a judgment in good faith, based on the evidence which is reasonably available, as to whether the relationship between the patient and the person who proposes to provide consent satisfies the requirements of s 33A of the Act.
5. The purpose of all these provisions is to ensure that persons who are unable to provide informed consent are not deprived of treatment simply because of that inability alone, even when there is no formally appointed guardian.
6. The Act clearly contemplates that persons other than formally appointed guardians may lawfully provide substitute consent to treatment, and it does so for a good reason: not all - or, for that matter, not even the majority - of people who may at some time in their lives benefit from the consent of a person responsible to medical treatment have guardians or enduring guardians.
7. A health practitioner who declines to treat a patient despite the consent of a person responsible, in the face of reasonable evidence as to the status of the person responsible to provide consent, both subverts the Act's objectives and probably incurs greater personal risk of breaching legal and professional duties to the patient than in properly assessing the authority of the person responsible to provide substitute consent and acting on that consent.

Who should be the guardian?

1. There is a proposal that NBI be appointed guardian for TZM. 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/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: s 15(3) of the Act.
5. The Supreme Court has held that: [T]he 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. The Applicant told the Tribunal that she had over recent months in consultation with other family members (including Mrs V) been acting as TZM's person responsible, and more generally making care decisions for her when required. In doing so she had sought at all times to seek and respect TZM's wishes, to inform TZM as to the issues relevant to proposed decisions, and to guide TZM in her understanding of those issues. She said that she had no financial or other interest, beyond that of being a caring and supportive sister, in acting as TZM's guardian.
7. Mr Y supported the Applicant's appointment and confirmed that their sister in Perth also did so.
8. Ms X and Ms W confirmed that the Applicant: 1. has been an active participant in discussions concerning TZM's health and welfare; and 2. appears from their observation to engage TZM actively in decision making.
9. TZM herself said that she was happy to have the Applicant helping her.
10. On the basis of this evidence, the Tribunal was satisfied that NBI meets the requirements to be appointed as the private guardian for TZM.

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 an order for 12 months. This was for two reasons: 1. The complexities of TZM's health needs - most relevantly, her knee problems and the unfortunate results of the bowel cancer screening - suggest that significant and complex decisions concerning TZM's health care, treatment and potential rehabilitation are likely to be required over the next year or so; and 2. Depending on the outcome of steps taken in implementation of those decisions, an accommodation decision (together with complementary decisions as to service support) may be required during that period.

Dissemination of these reasons

1. The Tribunal believes that it is desirable for the principles outlined in these reasons concerning the authority of persons responsible to provide informed consent to treatment on behalf of patients who are unable to do so to be better known amongst hospitals and health professionals. Accordingly, the Tribunal has decided that copies of these reasons should be provided promptly both to Hospital A and Hospital B, so as to assist them in ensuring that those principles become more widely known.

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 08 May 2019 - paragraphs [19] and [21], and heading preceding paragraph [21] amended to substitute "Pt 3" for "Pt 5" and "Part 3" for "Part 5". 04 June 2019 - paragraph [40] inserted. 04 June 2019 - paragraph [40] inserted. 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 June 2019