ZSW v Hunter New England Local Health District

NCAT Appeal Panel|2021-01-29

Overview

In August 2020, ZSW was in John Hunter Hospital awaiting discharge. The Hunter New England Local Health District, represented by Ms Owen, a social worker employed by that body, applied to the Tribunal for a guardianship order for ZSW. The treating team at the hospital had recommended that ZSW move to a Residential Aged Care Facility. The reasons for that recommendation included that ZSW is unable to effectively process and interpret information; he has a hoarding disorder and lives in domestic squalor, he is unable to use a walking frame in his cluttered apartment, he has very poor awareness of the risks in his home environment and is reluctant to engage with support service. ZSW refused to relocate to a Residential Aged Care Facility. He wanted to go back and live in the accommodation provided by Housing New South Wales.
After considering the guardianship application and taking into account evidence from ZSW, his daughter and carer ZSX, a psychiatrist, two doctors, two occupational therapists and others, the Tribunal made a 12-month guardianship order. As there was no other suitable person available, the Tribunal appointed the Public Guardian as ZSW's Guardian. The Tribunal gave the Public Guardian two functions: deciding where ZSW should live and making decisions about the services he should receive.
ZSW has appealed from the Tribunal's decision. Our job is to decide whether the Tribunal made a legal mistake of some kind. If not, we may still allow the appeal to go ahead if there is any other legitimate basis for changing the Tribunal's orders: Civil and Administrative Tribunal Act 2013 (NSW), s 80(2)(b). Mr Roger Wood, a friend of ZSW's who is not a lawyer, spoke on behalf of ZSW. We also invited ZSW to say anything he wanted to say about the appeal. ZSW made some comments but unfortunately he was unable to focus on the decision. We also heard from ZSW's daughter, ZSX, the social worker who made the initial application and a representative from the Public Guardian.

Statutory requirements for making a guardianship order

Before making a guardianship order, the Tribunal had to be satisfied that: 1. ZSW has a disability; (a person with a disability is a person who is intellectually, physically, psychologically or sensorily disabled, who is of advanced age, who is a mentally ill person within the meaning of the Mental Health Act 2007, or who is otherwise disabled) 2. that disability prevents ZSW from being able to make important decisions such as where he should live; and 3. taking into account several factors including the views of ZSW and his carer, a guardianship order should be made.
If the Tribunal decides to make a guardianship order, it must then decide who should be the guardian and how long the order should last: Guardianship Act 1987 (NSW), s 14 and s 3.

Grounds of appeal, evidence and the Tribunal's conclusions

The Tribunal relied on the evidence of the Psychiatric Registrar, Dr Catherine Perrignon, community geriatrician Dr Penny Webster and Medical Registrar, Dr Laura Dryburgh.
Dr Perrignon's report provides the strongest and most recent evidence of ZSW's disabilities and decision-making capacity. She is a psychiatrist at John Hunter Hospital and, at the request of Dr Dryburgh, reviewed ZSW on two occasions. She prepared a report dated 1 September 2020, which the Tribunal referred to in its reasons. Dr Perrignon said that she understood that ZSW had been given a provisional diagnosis of hoarding disorder. As to his general health, Dr Perrignon noted that: He has a long-standing history of alcohol use disorder and reports that he still drinks around eight cans of beer daily. He also suffers from postural hypotension, chronic back pain, hearing impairment and is receiving monthly hormonal therapy for prostate cancer. During this admission ZSW was treated for community-acquired pneumonia and reviewed by members of the multidisciplinary health team. He was frail, underweight, and malnourished and was assessed as a high falls risk. I note that Doctor Penny Webster raised the possibility of an emerging neurogenerative illness in her review of ZSW in 2016. He scored 84/100 on the Addenbrooke's Cognitive Exam - III performed on 4 August. Scores below 82 usually indicate cognitive impairment. ZSW was a challenging historian and very often was unable to provide me with a direct answer to my questions, choosing to talk at length about previous life experiences. His conversation contained details and digressions which overwhelmed the direction of his thought process. At the time of my assessment ZSW was unable to communicate to me the risks involved if he was discharged into his current home environment. He did not display a factual understanding of his current situation and was unable to manipulate information to make a well informed decision about his discharge destination. In my opinion ZSW lacks dispositional capacity and will require a substitute decision maker to assist with further discharge planning.
Community geriatrician, Dr Penny Webster had reviewed ZSW in 2016. She expressed the view that on the environmental cleanliness and clutter scale, ZSW's apartment was consistent with hoarding disorder or domestic squalor. While neither Dr Perrignon nor Dr Webster diagnosed ZSW with a specific mental illness, their observations are consistent with declining cognition. His house is in a state of domestic squalor and he is unable to use his walker inside. ZSW is frail, underweight, and malnourished and was assessed as being at a high risk of falling.
Dr Dryburgh, the medical registrar at John Hunter Hospital, completed a form in which she expressed the view that ZSW had a mental illness, namely a hoarding disorder. That view was apparently based on the reports of Dr Perrignon and Dr Webster.
ZSW denied having a hoarding disorder. However, he told the Tribunal that his home was full of accumulated material. He described it as 'like a maze, as a path and if I get dizzy or trip I've only got to move 6 inches and I go can prop myself up on something else and make a three point anchor."
The Tribunal was satisfied that ZSW has a disability which prevents him from making important life decisions. Mr Wood, representing ZSW, challenged this finding on the basis that none of the medical practitioners had made a clinical diagnosis and Dr Dryburgh relied on "third hand anecdotal rumours that were mere speculation". He said that the conclusion that ZSW is a hoarder are anecdotal. As we have said, Dr Dryburgh's opinion was based on the reports of a psychiatrist and a geriatrician. The psychiatrist had reviewed ZSW twice before writing the reports. Some of the history was undoubtedly contained in hospital records and from relatives. That is unavoidable when the patient is unable to convey the history themselves.
The term "disability" is defined broadly in the Guardianship Act. A clinical diagnosis of a particular disability is not necessary. It is enough if the person is "of advanced years" or "otherwise disabled". ZSW is, at least, frail, underweight, malnourished and at risk of falls. He was at the time of the hearing aged 92, which can reasonably be considered as being "of advanced years". There was thus ample evidence for the Tribunal's finding that he has a disability within the statutory meaning.
Mr Wood also challenged the finding that ZSW's apartment was unsafe. He said there was no evidence of vermin, mould or risk of fire. ZSW was an electrician and is very aware of those risks and hazards. No-one has stated that ZSW may be a danger to himself or others.
The main safety risks were identified in the report by two occupational therapists dated 25 August 2020. Because of the clutter, ZSW is unable to use a 4 wheeled walker (4WW) inside his home. He was assessed as being "extremely tangential in his thinking and conversations with reduced attention." The occupational therapists concluded that: From an occupational therapy perspective, while ZSW's home environment remains such a significant risk from hoarding he is not deemed appropriate to return home. He is unable to use the recommended mobility aid due to clutter, he has very poor insight and awareness into his home environmental risks and care needs, he has reduced problem-solving abilities to assist in a time of potential danger within the home, and he is known to be reluctant to engage with the services required to support him in the home environment. ZSW's ability to process and interpret information is impaired and influence his ability to weigh up the consequences of the proposed recommendations and discussed risks.
Contrary to Mr Wood's submission, there was ample reliable evidence to support the Tribunal's conclusion that ZSW's disabilities prevent him from being able to make important decisions such as where he should live.
Mr Wood also criticised the evidence of the social worker who made the application on behalf of the Hunter New England Local Health District. In summary, those criticisms were that she: 1. has no clinical or advocacy experience; 2. obtained information largely through the Public Guardian and ZSW's daughter; (second hand information) 3. did not seek the advice or opinion from ZSW's colleagues including Mr Roger Wood; and 4. did not inquire into all the circumstances and is conspiratorial in nature.
While the Tribunal mentioned the evidence of the social worker, the conclusions were based on the evidence of the medical practitioners and the occupational therapists. Mr Wood is not a spouse or carer so the Tribunal is not obliged to take his views into account: Guardianship Act, s 14(2).

Remaining grounds of appeal

Mr Wood's remaining grounds of appeal are not relevant to the lawfulness or correctness of the Tribunal's decision. They include assertions that ZSW's hearing loss has not been accommodated in court hearings or medical consultations, that interviews with him were rushed, that ZSW has promised to accept supervised cleaning up and off-site storage of his collections, that ZSW's daughter has been intolerant of her father's collections, that he does not have a drinking problem and that his current accommodation arrangements are restrictive and not in his best interests. Mr Wood also attempted to ask ZSW various questions during the appeal hearing.
As we explained to Mr Wood at the hearing, there was no reason for us to hear the guardianship application again or to take into account fresh evidence on appeal. The Tribunal's reasons were based on a correct understanding of the legislative requirements and were supported by reliable evidence from expert witnesses and others. The order which it made - a 12 month order that will automatically lapse after that time - was a proportionate response to ZSW's circumstances. The Tribunal also took into account ZSW's views.

I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar 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: 10 February 2021

At a glance

Court

Decision date

Source

Judgment (5 paragraphs)

Parties

Legislation Cited (2)

Cited By (1)