NSW Civil and Administrative Tribunal New South Wales Medium Neutral Citation: UZX (No 2) [2020] NSWCATGD 33 Hearing dates: 14 October 2020 Date of orders: 14 October 2020 Decision date: 14 October 2020 Jurisdiction: Guardianship Division Before: L Organ, Senior Member (Legal) Dr I L Beale, Senior Member (Professional) J L Newman, General Member (Community) Decision: The guardianship order for UZX made on 2 August 2019 has been reviewed. The order now is as follows: 1. The Public Guardian is appointed as the guardian. 2. This is a continuing guardianship order for a period of 12 months from 14 October 2020. 3. This is a limited guardianship order giving the guardian(s) custody of UZX to the extent necessary to carry out the functions below. FUNCTIONS: 4. The guardian has the following functions: a) Access To decide what access UZX has to others and the conditions of access. b) Accommodation To decide where UZX may reside. c) The guardian may authorise others including members of NSW Police and the Ambulance Service of NSW to: i) take UZX to a place approved by the guardian; ii) keep them at that place; iii) return them to that place should they leave it. d) Services To make decisions about services to be provided to UZX. CONDITION: 5. The condition of this order is: a) Standard Condition In exercising this role the guardian shall take all reasonable steps to bring UZX to an understanding of the issues and to obtain and consider their views before making significant decisions. Catchwords: GUARDIANSHIP – end-of-term review of guardianship order – whether a guardianship order should be made – service providers withdrawing services – need for services and accommodation functions – potential need for respite care – need for authorise others function - unwanted guests at subject person's accommodation – need for access function – no private guardian available – Public Guardian appointed – order made. Legislation Cited: Guardianship Act 1987 (NSW), ss 4, 14 Public Health Act 2010 (NSW), s 7 Cases Cited: Nil Texts Cited: Nil Category: Principal judgment Parties: 002: Review of Guardianship Order UZX (the person) Public Guardian (appointed guardian) Representation: Separate Representative for UZX: J Quiohilag File Number(s): NCAT 2019/00182057 Publication restriction: Decisions of the Guardianship Division of the Civil and Administrative Tribunal have been anonymised to remove any information that may identify any person involved in the Tribunal's proceedings: Civil and Administrative Tribunal Act 2013 (NSW), s 65. REASONS FOR DECISION STATUTORY REVIEW OF GUARDIANSHIP ORDER Background 1. UZX is a 69-year-old Aboriginal woman who lives in a Housing NSW unit in regional NSW. 2. UZX lives with a diagnosis of schizophrenia. 3. On 2 August 2019 the Tribunal appointed the Public Guardian as UZX's guardian for 12 months to make decisions about her accommodation and services. 4. On 3 April 2020 the guardianship order made on 2 August 2019 was reviewed and varied with an additional function being added giving the guardian authority to authorise others including NSW Police and Ambulance to take UZX to a place approved by the guardian, keep her at that place and return her to that place if she should leave it. This additional function was conferred in the context of concerns about UZX's ability to understand the need to self-isolate as a result of COVID-19 measures introduced, specifically the Restrictions on Gathering and Movement orders made pursuant to s 7 of the Public Health Act 2010 (NSW). 5. This hearing was to consider the statutory end-of-term review of the guardianship order, as varied, made on 2 August 2019. The hearing 1. At the end of these Reasons for Decision are lists of the parties to the application and the witnesses who attended the hearing. [Appendix removed for publication.] What did the Tribunal have to decide? 1. The questions to be considered by the Tribunal are: * Is UZX someone for whom the Tribunal could make a further order because she continues to have a disability which prevents her from being able to make important life decisions? * Should the Tribunal make a further guardianship order and if so, what order should be made? * Who should be the guardian? * How long should the order last? Is UZX someone for whom the Tribunal could make a further order because she continues to have a disability which prevents her from being able to make important life decisions? 1. The Tribunal has previously accepted evidence that UZX has a chronic but stable mental illness which has resulted in significant decline in her ability to attend to her own basic care needs. Further there was evidence that UZX had significant cognitive impairment on formal assessment. 2. There was no new evidence available to us on the issue of UZX's capacity to make informed life decisions and this was not a contentious issue at the hearing. 3. We were satisfied that UZX continues to have a disability which prevents her making important life decisions. She is therefore a person for whom we could make a further guardianship order. Should the Tribunal make a further guardianship order and if so, what order should be made? 1. In deciding whether the 2019 order should be renewed, renewed and varied, or allowed to lapse, we adopt the approach that in conducting an end-of-term review of a guardianship order the Tribunal must have regard to the matters listed in s 14 of the Guardianship Act 1987 (NSW). In addition, in conducting this review we must observe the "general principles" listed in s 4 of that Act. At all times the paramount consideration must be UZX's welfare and interests. 2. UZX participated in the hearing briefly. UZX does not have a telephone at her home and her participation was facilitated by VAD, a Clinical Nurse Specialist at a Mental Health Service in regional NSW. We were not able to obtain a clear view from UZX about the review of the guardianship order and we could not be confident from her limited responses to our questions that she understood the purpose of the hearing and the implications of orders we could make. 3. VAD told us that there have been ongoing challenges in providing an appropriate level of support services to UZX. UZX was receiving the highest level of support services through an Aged Care Assessment Team (ACAT) package. Her service provider ceased providing services to her at the beginning of October 2020 due to concerns about the behaviour of other people who were either staying in UZX's unit or who frequented the unit. UZX's niece Ms Z is currently staying at the apartment. VAD said there are concerns about drug paraphernalia being present in the apartment and Ms Z has at times been noted to be affected by drugs. VAD's evidence was consistent with the reports received by the Public Guardian around concerns which led to service provider ceasing services to UZX and a letter available to us from the service provider which was sent to UZX outlining the reasons why their services to her were ceased. 4. VAD said that UZX has told her that she does not want Ms Z to be in the unit. Ms Z living in the unit is in breach of UZX's lease with Housing NSW. This puts her tenancy at risk according to VAD. VAD said it is difficult, however, for UZX to be assertive and ask Ms Z to leave. 5. A Senior Guardian at the Public Guardian said the Public Guardian supported a continuation of the guardianship order with the functions of accommodation including the authorise others function. The Senior Guardian noted that there may be a need to organise urgent respite care for UZX to ensure her safety. These functions had been included in the order under review due to concerns around UZX continuing to access the community even though COVID-19 restrictions under the Public Health Act were in place at the time of the order being made. The Senior Guardian said that a respite placement had been identified in April 2020 for UZX but that the facility concerned then withdrew the offer. 6. The Public Guardian supports a continuation of the services function in the order. The Senior Guardian said ongoing negotiation and advocacy will be required to ensure UZX receives services at a level appropriate to her needs while she remains living on the community. 7. The Senior Guardian also supported the inclusion of an access function in the order noting that UZX has said that she does not want her niece living in the unit and feels intimidated by her. 8. UZX's separate representative, Ms Jeremie Quiohilag, supported a continuation of the order. She considered both accommodation and services should be included as functions in the order but was not convinced of the need for inclusion of the authorise others function. If an access function was included in the order, she said this would be an important tool to support UZX to remain living in the community. 9. The evidence available to us indicated that it will be critical to the ongoing success of her accommodation arrangements that UZX receives an optimal level of support services. There is some complexity around the process of advocating and liaising with services providers for UZX. 10. In deciding that a further guardianship order should be made for UZX we have given particular weight to the principles in s 4 of the Guardianship Act that require us to observe the principle that UZX should be protected from neglect and that we should give her welfare and interests paramount consideration. VAD's evidence was that UZX is vulnerable by reason of her cognitive impairment and that without a high level of supports she is not able to function independently in the community. We have placed substantial weight on VAD's views as she has been involved in supporting UZX for some months now and UZX's attitudes and behaviour are well known to VAD. VAD presented as a credible and independent witness. 11. We were satisfied that the continuation of a guardianship order will ensure that UZX's welfare and interests are given paramount consideration by providing a way for decisions to be made on her behalf about her accommodation and services. We consider the authorise others function should be included to support UZX to be safely taken to or returned to respite accommodation if required. We acknowledge that this will represent a significant restriction on UZX's freedom of action and decision making, however, we consider that the inclusion of this function will promote her welfare and interests in circumstances where less restrictive measures have been attempted unsuccessfully. The guardian should also have authority to make decisions about the access UZX has to other people and the conditions if any of that access. This will support UZX in maintaining her tenancy and receiving an optimal level of support services in her home. Who should be appointed as the guardian and how long should the order last? 1. The Tribunal has previously appointed the Public Guardian as UZX's guardian. As there was no private individual available to appoint we again appointed the Public Guardian. 2. We decided to make an order for 12 months. At the end of the term of the order, it will be reviewed to determine if it should continue or should be varied in some way. ********** 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: 20 January 2021