TZS [2018] NSWCATGD 27

The Hearing

1. The matter was listed for hearing on Friday, 2 February 2018. The parties and witnesses gave evidence to the Tribunal via 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. The evidence before the Tribunal included the following: 1. Application for guardianship. Ms Caldwell stated that, since her move to regional NSW, TZS has had multiple presentations to a mental health service in regional NSW, as well as the local hospital. TZS has also been charged with offences requiring court attendance. She is at risk of harm, abuse, exploitation and neglect. She is in contact with multiple service providers within the regional NSW area and there are decisions required regarding her access to appropriate support and services, such as the National Disability Insurance Scheme (NDIS), and rehabilitation. 2. Report by Medical and Related Health Professionals, completed by Dr Y, Psychiatrist. Dr Y stated that TZS has an 'itinerant lifestyle'. She has been diagnosed with borderline personality disorder and substance abuse. She is non-compliant with medication, she lacks family support and she is vulnerable. She is easily influenced by friends and family and has indicated that she requires help to have a more stable life. 3. Queensland Government, Mental Health Services, Consumer Care Review Summary and Plan, dated 4 May 2016. The Summary stated that TZS is the mother of three daughters, all of whom are currently in the care of Department of Community Services. She has a long-standing history of involvement with mental health, often in times of crisis. She has been diagnosed with borderline personality disorder, post-traumatic stress disorder, poly-substance abuse and schizophrenia. She has reported being abused as a child and she is fearful of, and easily manipulated by, her step-father. She has a very low tolerance for distress and frustration, as well as poor impulse control. She lacks the ability to manage her 'dysregulated emotions' and lacks the skills required to navigate interpersonal relationships. The report stated that TZS is at a 'chronic moderate risk' of suicide due to 'misadventure and impulsivity'. 4. Queensland Government, Mental Health Services, Progress notes, dated 23 March 2017. The document stated that, over the years, TZS has been a frequent presenter to emergency services with some 50 presentations over a period of nine years, often presenting with psychotic symptoms and after using Illicit drugs, in crisis after domestic disturbances, having been assaulted, having been non-compliant with medications or following intentional overdoses.

Jurisdiction

1. The Tribunal can recognise appointments of guardians made by other courts or tribunals under corresponding law in another Australian state or territory. However, if the subject person has moved to NSW, an application to NCAT for guardianship orders would be appropriate.
2. On the evidence, the Tribunal was satisfied that TZS has moved to NSW and it should proceed to consider the guardianship application. The Tribunal finds that it has jurisdiction to consider the application for a guardianship in relation to TZS.

The Guardianship Application

1. The questions which had to be decided by the Tribunal were: 1. Is TZS someone for whom the Tribunal could make an order because she has a disability which prevents her 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 TZS someone for whom the Tribunal could make an order because she has a disability which prevents her 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/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, 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. The Tribunal found the information contained in Dr Y's report and the reports from the Queensland Mental Health Services to be consistent and persuasive. TZS acknowledged at the hearing that she has post-traumatic stress disorder, borderline personality disorder and a past history of self-harm. None of the other participants at the hearing disputed the nature and extent of TZS's disabilities as reflected in the written reports considered by the Tribunal.
3. On the basis of the above evidence, the Tribunal was satisfied that TZS has a disability, being a combination of borderline personality disorder, post-traumatic stress disorder, polysubstance abuse and schizophrenia, which prevents her making important life decisions in an informed manner. 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).

Overview of the Evidence

1. At the hearing, TZS stated that she has made her own decisions in the past, but she required assistance with her accommodation. She has received assistance and support from Ms X, her case manager, in this regard. TZS also stated that she is currently residing with NZN and she would like to continue to reside there. NZN told the Tribunal that she was happy for TZS, who is a relative, to continue to stay with her. NZN explained that she resides in a four-bedroom house, which she rents from her parents, and her parents have no objections to TZS residing at the house.
2. TZS's solicitor, Mr W, attended the hearing as a McKenzie Friend. Whilst he acknowledged his role and the fact that he was not participating in the proceedings as an advocate, Mr W noted that the biggest challenge facing TZS is accommodation, as her lifestyle choices hinge on accommodation decisions. In relation to TZS's current accommodation arrangements, he noted that NZN is a 'sound' person and her family are highly respected members of the community.
3. With regard to health care and medical and dental treatment, TZS told the Tribunal that that NZN has been assisting her with attending medical appointments. Since moving to regional NSW, she has been seeing a general practitioner, Dr V, on a fortnightly basis. Dr V has assisted her with developing a mental health plan. She will also provide her with assistance in locating a psychiatrist and receiving anger management therapy. TZS stated that she is not currently in need of any form of dental treatment.
4. In relation to services, TZS stated that she requires an NDIS package to receive services in relation to accommodation, transport and living skills. She told the Tribunal that an NDIS application has been lodged on her behalf and Ms X would be able to follow up on the progress of the package. She also informed the Tribunal that, in order to progress the application, further medical evidence would be required in relation to the nature of her disabilities.
5. Mr Houghton submitted that TZS requires assistance with decisions regarding accommodation and services. Due to TZS's move to NSW, the Queensland Public Guardian considered it more appropriate to make the application before the Tribunal rather than to apply for a recognition of the QCAT order in NSW. During the period of time TZS has been residing in regional NSW, the Queensland Public Guardian have liaised with a number of services, including hospitals and a service provider, which initially provided TZS with some support. With regard to NDIS, he said, at the time when TZS resided in Queensland, the roll-out had not commenced in her area and, therefore, she was not eligible for access. Her NDIS eligibility in NSW has not yet been confirmed, pending presentation of further medical evidence in relation to her disabilities and how they impact on her capacity to perform daily tasks. This evidence is required by the National Disability Insurance Agency (NDIA) to determine whether she meets access requirements.
6. Citing his experience, Mr Houghton was of the view that, regarding decisions in relation to access to NDIS and services, the appointment of a guardian would be very beneficial to TZS. He noted that, if the Tribunal were to decide not to make an order, the QCAT order will remain valid until 12 May 2018. Under such circumstances, the Queensland Public Guardian may apply for a recognition of the QCAT order in NSW and will act to ensure progressing TZS's request to access NDIS. However, the Queensland Public Guardian may eventually seek leave to withdraw as guardian due to problems that may arise as a result of lack of familiarity with services in NSW and the community TZS is residing in.
7. Mr Houghton further submitted that there may be particular challenges underlying TZS's negotiations with NDIA regarding access. He said TZS is not a 'defined client' as she has not had access to disability services in the past. In Queensland, participants with a 'psycho-social' disability require greater advocacy to ensure proper documentation is provided to NDIA to determine eligibility, as well as participation in planning and pre-planning meetings to discuss how the disability impacts on the person's functional capacity. This may involve engaging with health care professionals to explain the requirements of NDIA, as the NDIA is not required to make a decision on the access request in the absence of such information. He submitted that for a person without support or existing access, advocacy is required. Whilst an advocacy service could assist in this process, the difficulty lies in requesting and collating information from health professionals to be presented to the NDIA.
8. Ms Carolina Gonzales from the NSW Office of the Public Guardian submitted that TZS has strong will and advocacy skills and would be able to arrange some support in relation to her accommodation. NZN would be able to assist her informally to make her own decisions. In relation to TZS's need for advocacy to ensure NDIS access, Ms Gonzales submitted that NZN can access community education regarding guidance on the advocacy required on behalf of TZS. She said whilst a guardian has an inherent advocacy role, she did not believe that in this case it justified making an order. Guardianship does not resolve the issue of timely access to NDIS and advocacy does not produce a better outcome. Whilst the NSW Public Guardian can make decisions around service agreements, it does not sign these agreements due their financial nature. She submitted that, in her view, there was no need for a guardian to be appointed as TZS is a strong advocate for herself.
9. Having carefully considered the evidence before it, for the following reasons and in the circumstances of this case, the Tribunal was persuaded that a guardianship order should be made.

Accommodation

1. The Tribunal accepted the evidence presented that TZS has had an itinerant lifestyle in the past and that she would benefit from stable, long-term accommodation. It was evident to the Tribunal that NZN has played a significant role in supporting TZS in regional NSW, particularly in relation to her accommodation by arranging for TZS to reside with her at her rented property. TZS told the Tribunal that she would like to continue to reside with NZN and NZN said she was happy for TZS to continue to reside with her. However, TZS also indicated that she was still searching for long-term accommodation with assistance rendered by her case manager. The Tribunal, therefore, formed the view that accommodation decisions remain critical and are likely to arise in the near future. In light of TZS's disabilities and needs, making suitable accommodation decisions would require weighing complex factors and entering into appropriate agreements with third parties. On the basis of the available evidence, the Tribunal was not persuaded that TZS would be able to navigate through this process by relying on informal support and assistance. The Tribunal was satisfied that it was appropriate for a guardian to have an accommodation function to make decisions on TZS's behalf.

Advocacy and Services

1. The evidence provided to the Tribunal at the hearing identified TZS's access to NDIS as a critical issue. TZS's access to NDIS would entail decisions that relate to her personal and lifestyle needs, including services. However, in order to access NDIS, an access request is required.
2. Section 18 of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act) provides that a person may make an 'access request' to the NDIA to become a participant in the NDIS launch. The National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth) (20 February 2017) state: 'A person, or someone who is able to act on their behalf, may make a request under the NDIS Act to become a participant in the NDIS (an access request)', (r 2.1).
3. Section 19(1) of the NDIS Act provides that an access request must be in the approved form, include the requisite information or attachments and be certified that it includes all the information, and is accompanied by all the documents, required.
4. The evidence provided to the Tribunal at the hearing did not clearly establish whether an access request has been made and by whom. TZS in her evidence referred to having made an 'application' to, or having been 'registered' with, the NDIA. Mr Houghton's evidence indicated that an access request had not been made by the Queensland Public Guardian when TZS was still residing in Queensland. If an access request has been made in relation to TZS in NSW, a guardian would not have been needed in order to make the request (see KCG [2014] NSWCATGD 7 and LBL [2016] NSWCATGD 22).
5. However, a valid access request must also include any additional information or documents required by the NDIA and be certified that it includes all the information (s 19(1) of the NDIS Act). This appeared to be the focus of Mr Houghton's submissions to the Tribunal. Mr Houghton stressed in his evidence that, in order to access NDIS, TZS would be required to obtain and present 'proper' documentation relating to her disability and its impact on her functional capacity. This would involve engaging with health care professionals to explain the requirements of the NDIA. He correctly noted that, in the absence of this information, the NDIA is not required to make a decision on the access request.
6. TZS's evidence appeared to suggest that, since moving to regional NSW, she has been seeing a GP on a fortnightly basis and that she was awaiting a referral to a psychiatrist and/or a psychologist. In the absence of a referral or any consultation having taken place, it is difficult to see how the appropriate documentation could have accompanied any access request. Neither Ms X nor NZN offered any other information to suggest otherwise.
7. In these circumstances, the Tribunal formed the view that it would be in TZS's best interests to appoint a substitute decision maker with an advocacy function. The Tribunal was satisfied that there was a need for a guardian to have a formal advocacy authority to liaise with health care professionals, to negotiate with the NDIA in relation to their consideration of the access request and to advocate on TZS's behalf in any future pre-planning or planning process.
8. The Tribunal agreed with Ms Gonzales that TZS is a strong advocate for herself. The Tribunal, however, did not agree that, in view of TZS's disabilities, she would be able to negotiate through the many challenges identified by relying on her own advocacy skills.
9. The Tribunal also considered it appropriate to appoint a guardian with the services function to make decisions about services to be provided to TZS, including any advocacy services required to facilitate her NDIS access.

Health Care and Medical and Dental Consent

1. There are no medical decisions that are currently required to be made in relation to TZS. The Tribunal accepted that NZN is providing TZS with support and assistance regarding keeping and attending medical appointments as required. The Tribunal was satisfied that there was no need for a substitute decision maker to be appointed with the functions of heath care and medical and dental consent.

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. As noted above, NZN has played a significant role in supporting TZS in regional NSW. She is trusted and relied upon by TZS, she is involved in the local community and she has access to community networks that could further embrace and support TZS in regional NSW. TZS eagerly expressed the view that she would accept NZN as guardian and NZN told the Tribunal that she was able and willing to be appointed as a guardian. For these reasons, the Tribunal considered it appropriate to appoint NZN as guardian with the functions of accommodation and advocacy.
4. For the reasons outlined above in relation to the complexity of the challenges underlying TZS's access to NDIS, the Tribunal considered it appropriate to appoint the Public Guardian, separately, as guardian with the function of services, to make decisions about, or consent to any services required by TZS, including any advocacy services needed to facilitate her NDIS access.

How long should the order last?

1. An initial guardianship order is usually made for a period of up to one year from the date on which it was made. The Tribunal decided to make an order for 12 months to ensure that the appointed guardians would be able to undertake important decisions on TZS'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: 01 February 2019