NSW Civil and Administrative Tribunal New South Wales Medium Neutral Citation: JZK [2020] NSWCATGD 42 Hearing dates: 24 April 2020 Date of orders: 24 April 2020 Decision date: 24 April 2020 Jurisdiction: Guardianship Division Before: S Roushan, Senior Member (Legal) L Houlahan, Senior Member (Professional) J Koussa, General Member (Community) Decision: 1. A guardianship order is made for JZK. 2. The Public Guardian is appointed as the guardian. 3. This is a continuing guardianship order for a period of 12 months from 24 April 2020. 4. This is a limited guardianship order giving the guardian(s) custody of JZK to the extent necessary to carry out the functions below. FUNCTIONS: 5. The guardian has the following functions: a) Accommodation To decide where JZK may reside. b) Health care To decide what health care JZK may receive. c) Medical/Dental consent To make substitute decisions about proposed minor or major medical or dental treatment, where JZK is not capable of giving a valid consent. d) Services To make decisions about services to be provided to JZK. e) Other Function a) To make decisions as to JZK's accommodation, freedom of movement, and access to the community to protect and promote JZK's health, welfare and interests specifically as a result of the COVID-19 pandemic; and b) To ensure that JZK complies with any decision made by the guardian under this function, the guardian may authorise others, including members of NSW Police and the Ambulance Service of NSW, or their delegates, to do any of the following: (i) return JZK to a place approved by the guardian should they leave it. c) This function of guardianship can only be exercised by the guardian: (i) as a last resort; (ii) whilst a Public Health order is in force under s 7 of the Public Health Act 2010 (NSW) in relation to COVID-19 which places restrictions on JZK's freedom of movement (such as, but not limited to, Public Health (COVID-19 Restrictions on Gathering and Movement) Order 2020 (NSW) made on 30 March 2020); and (iii) to ensure that JZK complies with such Public Health order. CONDITION: 6. The condition of this order is: a) Standard Condition In exercising this role the guardian shall take all reasonable steps to bring JZK to an understanding of the issues and to obtain and consider their views before making significant decisions. Catchwords: GUARDIANSHIP – application for a guardianship order – COVID-19 pandemic – subject person with cognitive deficits due to traumatic brain injury – subject person not complying with self-isolation requirements – subject person at risk of self-harm and homelessness - whether a guardianship order should be made – subject person supports the making of a guardianship order – need for decisions to be made about NDIS planning and services – COVID-19 function – need for medical treatment decisions to be made – accommodation function with power to authorise others – Public Guardian appointed – order made. Legislation Cited: Guardianship Act 1987 (NSW), ss 3(1)-(2), 4, 14,14(2), 15(3) Public Health Act 2010 (NSW), s 7 Cases Cited: C S and M Y v the Guardianship Tribunal and the Public Guardian (Supreme Court (NSW), Windeyer J, 29 November 1999, unrep) GZK [2020] NSWCATGD 5 IF v IG [2004] NSWADTAP 3 Re B (No. 1) [2011] NSWSC 1075 Category: Principal judgment Parties: 001: Guardianship Application JZK (the person) NEK (applicant) NSW Public Guardian Representation: Counsel: Solicitors: File Number(s): NCAT 2020/00073350 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 Background 1. JZK, who is 25 years old, lives independently in west Sydney with support provided through National Disability Insurance Scheme (NDIS) services. JZK was born in Iran to Afghan parents and migrated to Australia in 2010. He is reported to have cognitive impairment associated with an acquired brain injury, childhood trauma and mental illness. 2. JZK has a history of relocating, including interstate. He was previously residing with his mother and siblings in Brisbane before relocating to South Australia and subsequently to Victoria and then NSW. He is now estranged from his immediate family. 3. On 26 August 2019, the South Australian Civil and Administrative Tribunal (SACAT) made an order appointing the Public Trustee of South Australia as full administrator of JZK's estate. SACAT also made orders appointing the Public Advocate as JZK's guardian for a period of two years with the function of accommodation and the authority to compel JZK to reside at a place and detain him at that place. 4. On 10 February 2020, SACAT revoked the guardianship order made on 26 August 2019 after being satisfied that JZK had left South Australia to take up residence in Victoria. 5. On 6 March 2020, the Tribunal received an application for guardianship from NEK, NDIS Support Coordinator, in relation to JZK. NEK referred to the transient nature of JZK's life and expressed concern that he may be at risk of homelessness. 6. In an email accompanying his application, NEK stated that JZK has a history of reporting to medical institutions, such as hospitals to gain support with access to funding from the NDIS. JZK requires support in relation to his mental health needs, obtaining stable accommodation and putting in place care plans that will assist him to address his mental health support requirements. NEK also communicated concerns that JZK is ignoring self-isolation requirements in the context of the COVID-19 pandemic and that a guardianship order with restrictive practices functions may be required. 7. On 10 April 2020, NEK wrote to the Tribunal advising that whilst 'restrictive practices would be strongly advisable and necessary to protect JZK and the community, under the current circumstances it would be extremely unlikely that we could provide a properly considered Behaviour Intervention and Support Plan'. Accordingly, he would not be seeking an order with a restrictive practices function and 'will rely on formal systems to respond to non-compliance with social distancing and travel legislation' and his team 'will do everything in their capacity to support JZK to remain at home during this period'. He stated that he would be seeking a guardianship order specifically for 'acceptance of service provider agreements and for the purpose or accepting suitable providers that will provide him with the least restrictive support that meets his personal support needs'. He also noted that a comprehensive functional assessment will be completed by the health care service provider clinicians to determine exactly what supports JZK requires and how his ability to make informed decisions are impacted by his disability. 8. The Tribunal understands that the Public Trustee of South Australia continue to manage JZK's finances and are now only releasing small amounts at a time, which has curtailed his ability to travel interstate, improving stability in his accommodation and service provision. Evidence submitted in support of the application 1. In an Occupational Therapy Report, dated November 2014, Ms Z, Clinician and Occupational Therapist with a customer service centre in Queensland, noted that JZK experienced an acquired brain injury when he was 10 months old, which has 'resulted in an intellectual impairment, a visual impairment and a nerve palsy affecting the left hand side of his body, most significantly in his upper limb.' 2. We also had before us a Neuropsychologist Report, dated July 2019, authored by Ms Y, Clinical Neuropsychologist at Public Hospital A in South Australia. At the time of Ms Y's assessment, JZK was an inpatient at the Public Hospital B. Ms Y stated in her report that JZK presents with global difficulties in cognition, likely due to a childhood traumatic brain injury, subsequent head injuries and a complex history of emotional trauma. During his admission at Public Hospital A, he had presented with challenging behaviours and demonstrated an impaired performance on the Montreal Cognitive Assessment, with a score of 11/30. Ms Y stated: [JZK]'s overall cognitive profile is significantly depressed when compared to peers his age. He demonstrated impaired performances across all domains, including attention, visuoperception, working memory, speed, visual and verbal memory and executive function (problem solving, reasoning, planning, idea generation, and rule attainment). With repetition. [JZK] is able to learn new information however he requires prompts and cues to facilitate his recall… [JZK] lacked a more in-depth understanding into his cognitive difficulties and behaviour, and the risks that might be associated with this. 1. Ms Y noted that JZK's whereabouts has been transient over the last few years, and he has sporadically relocated himself interstate. She stated: This history of fleeing is longstanding, and his records indicate this has occurred since he was five years old and has continued into his twenties—with [JZK] sleeping on the streets or traveling interstate without appropriate clothes or food. 1. She further noted that, due to misadventure, JZK sleeps on the streets, does not prepare appropriate food or clothing for his travels, and has a history of non-compliance with medication. 2. In a Social Work Report, dated June 2019, Ms Z, Senior Social Worker at Public Hospital B stated: [JZK] has had 31 presentations to hospital emergency departments between [Public Hospital C], [Public Hospital D] and [Public Hospital B] since March 2019. His presentations are in the context of suicidal ideation and self-reported auditory hallucinations due to psychosocial stressors of homelessness and social isolation. Of the presentations that progressed to an admission he has been observed by medical staff to remain disinhibited on the wards, consistently asking for cigarette breaks and pleading to be discharged. During his recent admission to [Public Hospital B] on 05/06/2019 he absconded from the hospital. Prior to this, during his admission on 28/5/19 he requested leave to attend a Centrelink appointment and self-discharged without any notice. The Hearing 1. The hearing was held on 24 April 2020. Given the effect of COVID-19, the hearing was conducted entirely by telephone. 2. At the end of these Reasons for Decision is a list of the witnesses who attended the hearing. [Appendix removed for publication.] The Guardianship Application 1. The questions which had to be decided by the Tribunal were: 1. Is JZK 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 JZK 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 Guardianship Act 1987 (NSW) ("the Act") provides that the Tribunal may make a guardianship order for a person if it is satisfied that he or 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. (a) intellectually, physically, psychologically or sensorily disabled; 2. (b) of advanced age; 3. (c) a mentally ill person within the meaning of the Mental Health Act 2007 (NSW); or 4. (d) 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. 1. We accepted the evidence before us that JZK has an acquired brain injury and an intellectual impairment. At the hearing, JZK was engaged, highly amicable and eager to communicate. However, he told us that he cannot make decisions on his own and that he is reliant on NEK to provide him with information. The content of JZK's evidence to us and the manner of his presentation appeared consistent with Ms Y's assessment of his cognition. 2. We were satisfied that JZK's disability results in him being restricted in one or more major life activities to such an extent that he requires supervision and assistance and is thereby incapable of managing his own person. We were satisfied that a guardianship order could be made for JZK. 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; 2. the person's spouse; 3. the person's carer; and 1. The importance of preserving the person's existing family relationships; 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. 1. 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). 2. JZK told us at the hearing that he currently resides on his own in supported accommodation and receives services through NDIS from Monday to Saturday. NEK explained that JZK is able to reside in his current medium-term accommodation until the completion of further assessments to determine the best type of support and the appropriate level of NDIS funding needed. This would then enable his service providers to locate and present suitable long-term accommodation options for him. NEK further stated that a request for an early review of JZK's NDIS plan has been made and there are decisions that are required to be made in relation to the structure of the plan and the services to be included. Members of JZK's family in Queensland are not willing to be his nominee for NDIS purposes. 3. We accepted that JZK is currently on a range of medications, including mirtazapine, diazepam and valproate. The consent mechanism in relation to his medication was not clear to us. He told us that he takes his medication regularly, however NEK noted that JZK's intake of his medication is not consistent, which may entail adverse health consequences. JZK also told us that he has problems with his eyes which require treatment to prevent his eyesight deteriorating. 4. On the basis of this evidence, we were satisfied that there are important decisions that are required to be made regarding JZK's accommodation, services, health care and provision of consent to medical treatment. We formed the view that it was appropriate for a guardian to be appointed to carry out these functions. 5. As noted earlier, NEK's application was motivated, at least partly, by his concerns for JZK's safety and welfare as a result of COVID-19 and his inability to self-isolate in line with the Restrictions on Gathering and Movement Order made pursuant to s 7 of the Public Health Act 2010 (NSW). 6. JZK told us that he found it very difficult and stressful to be on his own and that he has been experiencing increasing levels of anxiety. He cannot sleep and at times he entertains thoughts of self-harm. He said he gets very bored, but he has been told to stay at home. At present, the only people he speaks to are NEK and his accommodation manager. JZK acknowledged that when he needs to shop for groceries, he leaves the house on his own. 7. NEK informed the Tribunal that JZK has not been compliant with self-isolation requirements. He has frequently ventured out into the community, placing himself and others at risk. He stated that JZK continues to present himself to hospitals in Sydney, which result in NEK receiving 'weekly' phone calls from hospitals, asking him whether JZK is homeless. Following discharge, he is either returned home by the police or makes his own way home. NEK noted that a coercive order keeping JZK at home would neither be effective nor in his best interests. However, JZK may benefit from an order authorising others to safely return him home. Ms F from the office of the Public Guardian was not persuaded and expressed the view that there is no utility to such an order as there would be no one to implement it. 8. Whilst NEK had initially raised the possibility of an appointed guardian being given a restrictive practices function, the evidence before us indicated that JZK is engaging in behaviour which is causing concern solely as a result of the COVID-19 pandemic. He is not engaging in 'behaviours of concern' that would normally be in the purview of a behaviour support specialist. We also accepted that, in view of the current restrictions, a behaviour support plan could not urgently be developed for JZK even if he had an entitlement to such services due to the proposed restrictions related to the COVID-19 pandemic. 9. Having carefully considered the evidence before us in relation to JZK's inability to comply with the requirements of the Restrictions on Gathering and Movement Order, we were satisfied that there was no current means of engaging any remedy that may be available under the Public Health Act. 10. In a recent similar matter, also motivated by the COVID-19 pandemic, the Tribunal granted additional authority to the appointed guardian in the form of a 'COVID-19 Function' designed to address behaviour which is causing concern solely as a result of the COVID-19 pandemic (see GZK [2020] NSWCATGD 5). In considering the particular circumstances of this case, we formed the view that granting a similar function to the appointed guardian is appropriate. In reaching this view, we carefully considered the principles in s 4 of the Act, particularly the need to promote and protect JZK's welfare and interests and for him to be protected from neglect. We also took into account the views JZK, who did not object to the proposed orders. We were satisfied that JZK's decision-making impairment is such that it may result in him making decisions and engaging in activity, during the period of the COVID-19 pandemic, which exposes him to self-neglect. 11. We were satisfied that JZK would require a guardian to make decisions on his behalf in relation to his accommodation, freedom of movement, and access to the community to protect and promote his health, welfare and interests specifically as a result of the COVID-19 pandemic. We decided that in order to ensure that JZK complies with any decision made by the guardian under this function, the guardian may authorise others, including members of NSW Police and the Ambulance Service of NSW, or their delegates, to return JZK to a place approved by the guardian should he leave it. As set out in in our orders at the outset, this function of guardianship can only be exercised by the guardian as a last resort and whilst a Public Health order is in force under s 7 of the Public Health Act in relation to COVID-19. Who should be the guardian? 1. 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 (No. 1) [2011] NSWSC 1075, [66]). 2. 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'. 3. NEK proposed the appointment of the Public Guardian as JZK's guardian. We accepted that JZK is estranged from his family and they do not wish to have any involvement with decisions concerning him. We were satisfied that there were no other private guardians available who are able to exercise the functions specified in this order. In the absence of any private guardians, we appointed the Public Guardian as JZK's 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. We decided to make an order for 12 months to ensure that the Public Guardian would be able to undertake important decisions on JZK'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: 17 March 2021