NSW Civil and Administrative Tribunal New South Wales Medium Neutral Citation: KND [2015] NSWCATGD 64 Hearing dates: 8 October 2015 Date of orders: 8 October 2015 Decision date: 08 October 2015 Jurisdiction: Guardianship Division Before: R H Booby, Senior Member (Legal) C M Kennedy, Senior Member (Professional) D R Sword, General Member (Community) Decision: The Tribunal appointed the Public Guardian as KND's guardian for a period of three months to make decisions about her accommodation, services, health care and medical and dental treatment as set out in the Tribunal's order. Catchwords: GUARDIANSHIP – application for a guardianship order – whether subject person is a person in need of a guardian – application of section 14 of the Guardianship Act 1987 – subject person dependent on others to make lifestyle decisions – subject person requires high level care – opposition to the provision of services or placement in an aged care facility – subject person did not attend the hearing – adequate notice of hearing – balance between procedural fairness and duty to protect the welfare and the interests of the subject person – urgent decisions to be made about accommodation, services, health care and medical treatment – Public Guardian appointed – order made – order to be reviewed in three months. Legislation Cited: Guardianship Act 1987 (NSW), ss 3(1)-(2), 4, 14, 15(3) Cases Cited: IF v IG [2004] NSWADTAP 3 Texts Cited: None cited. Category: Principal judgment Parties: KND (the subject person) LZH (applicant) DAH (carer) The Public Guardian Representation: Nil. File Number(s): NCAT 2015/00384942 (C/60421) 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 Guardianship Application What the Tribunal decided 1. The Tribunal appointed the Public Guardian as KND's guardian for a period of three months to make decisions about her accommodation, services, health care and medical and dental treatment as set out in the Tribunal's order. Background 1. KND is 73 years old and resides in regional NSW with her son, DAH, who is also said to be her carer. 2. On 27 August 2015 the Tribunal received an application seeking the appointment of a guardian for KND. The applicant was LZH, who is the Manager of Community Nursing Services at a not-for-profit hospital in regional NSW. 3. On 10 August 2015 the Tribunal adjourned the proceedings for approximately four weeks. 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.] 2. A person who provides care for a person who is the subject of an application for guardianship is a party to the hearing of that application. The Guardianship Act 1987 (NSW) ("the Act") defines a person who provides care as including a person who, other than for remuneration and on a regular basis, provides domestic support and services for a person or arranges for the person to be provided with domestic services and support. Documents from a public hospital in regional NSW provided for the hearing indicate that DAH is KND's carer. However those documents indicate that when she was attended by ambulance officers, KND was lying in her bed in her own faeces. Hospital documents also indicate that KND was malnourished. In her application LZH states that when asked what she had been eating, KND replied that she sometimes is given a toasted sandwich if he (DAH) does not forget. An undated note from Ms Z, RN, Community, indicates that home visits by the community nurse commenced on 24 July 2015 and that from the time of KND's discharge from hospital in June 2015 she had not been showered and her bed linen had not been changed. She was deconditioned and said that her son makes sandwiches for all meals and she was sick of eating sandwiches. 3. In the absence of further evidence the Tribunal accepted that DAH is KND's carer. However the Tribunal was of the view that whether or not he provides regular domestic support and services could be the subject of further investigation in the future in light of any additional evidence about that matter. 4. Neither KND nor DAH participated in the hearing. The Tribunal attempted a number of times to contact KND and DAH by telephone but the calls were not answered. 1. LZH advised that KND and DAH have cut off all contact with her service. She said that she posted the Notice of Hearing to their address on 16 September 2015. 2. The Tribunal noted that on 30 September 2015 a letter was sent to KND's address advising of the hearing. 1. The Tribunal must ensure that it conducts its hearings in such a way as to extend procedural fairness to the parties. This includes a requirement that the parties must be given a reasonable opportunity to be heard, and to present their case. 2. The Tribunal is also required to follow principles set out in s 4 of the Act. These principles include that paramount importance should be given to the welfare and interests of a person with disabilities. 1. The Tribunal was satisfied that notice of the hearing had been served on the parties by post and that they had been provided with an adequate opportunity to participate and present their views. 2. The Tribunal was of the view that the issues raised in the documents before the Tribunal indicated that KND's well-being could be at risk. 1. Taking into account the conclusions noted above, the Tribunal was satisfied that it should proceed with the hearing despite the absence of KND and DAH. What did the Tribunal have to decide? 1. The questions which had to be decided by the Tribunal were: * Is KND 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? * 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 KND 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 Act provides that the Tribunal may make a guardianship order for a person if it is satisfied that 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": the Act, s 3(1). 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: the Act, s 3(2). 1. The Tribunal had regard to assessments conducted when KND was admitted to a public hospital in regional NSW. 1. An assessment on 23 June 2015 KND indicated: * She weighed 40kgs and had a lower-than-average BMI, had pressure areas and had previously had pressure areas; * KND scored of 3/10 on an Abbreviated Mental Health Test and returned positive scores on a delirium assessment and a confusion assessment. 1. On 29 June 2015 KND was assessed as having a very high risk of malnutrition. 2. A Discharge Summary from the public hospital indicates that: * KND was admitted on 19 June 2015 after being unable to rise from bed. She had been found by ambulance in a pool of her own faeces. * The admission was on a background of a recent one-week admission for generalised weakness and acopia. * KND evidenced chronic alcohol abuse having consumed a bottle of sherry every two days and recently drinking four standard drinks per day. * KND was described as "very cachetic" and as being unkempt. * KND was assessed by the Aged Care Assessment Team as needing high level care in the form of placement in residential care. Due to the level of care required services at home were not appropriate. KND and her son repeatedly stated that they did not want to place KND in a residential facility. * A "mental health review" was sought to assess KND's capacity and it was found that she had sufficient capacity to understand the risks and potential adverse consequences of not undertaking a care placement. 1. On an Abbreviated Mental Health Assessment conducted on 29 June 2015 KND scored 10/10. 2. On 8 July 2015 KND self-discharged against medical advice. 1. During the hearing LZH said: 1. She has not seen the Mental Health Assessment referred to in the hospital notes and does not know what assessment was conducted or any details about KND's performance on the assessment. 2. The cause of KND's physical disabilities is not known because when she was last hospitalised, she refused to undergo a recommended CAT scan. 3. When the community nurse has visited KND has always been intoxicated. 4. Whilst she thought that KND understood the choice she was making when refusing admission to a residential facility, she is of the view that KND's decision making was impaired as a result of her addiction to alcohol because she feared that relocating would prevent her accessing alcohol. 5. On the most recent occasion that community nurses visited KND, DAH answered the front door and told them that they were no longer needed. They were unable to speak to KND. 1. The Tribunal was of the opinion that overall, the medical evidence regarding KND's cognitive capacity was inconclusive. Her results on the abbreviated mental state examination were widely disparate and it is possible that the first assessment could have been influenced by delirium. Whilst a mental health review concluded that she was able to make her own decisions about returning home the Tribunal was provided with no information regarding the nature of the assessment and whether it was in fact an assessment of her mental health or cognitive capacity or both. There was also no indication that her general decision-making capacity was assessed during that assessment. 2. Due to the inconclusiveness of the medical evidence the Tribunal place limited weight on it. 3. During the hearing LZH said that whilst she was in hospital KND was advised that upon discharge she should undergo a medical assessment by a general practitioner to investigate reasons for her being unable to rise from bed. However she rejected that advice. She also refused to undergo a scan to assess the reasons for her immobility. 4. Whilst the evidence regarding KND's state when ambulance officers attended her home and when she was visited by community nurses has been provided second hand to the Tribunal, the Tribunal is satisfied that it is based on contemporaneous notes and that some weight can be placed on it. On the basis of that information the Tribunal is satisfied that due to a number of conditions, KND is not able to care for herself in the sense of attending to her personal, hygiene and nutrition needs. 5. The Tribunal was also satisfied that KND has a condition, most likely to be physical condition, that prevents her from getting out of bed. The Tribunal is satisfied that KND's physical condition renders her dependent on others for her interface with the outside world, including receiving information from and communicating with others. In this respect the Tribunal notes that when the community nurse visited KND it was DAH and not KND, who advised that the community nurse was not wanted. 6. The Tribunal was satisfied that as a result of her dependency on others to provide her with information about lifestyle options, and her inability to actively seek advice and counsel, she is restricted in her ability to make lifestyle decisions and requires others to equip her to do so. 7. The Tribunal also noted that according to hospital records the ambulance service advised that when visited at home KND was lying in her own faeces and reports of health professionals include that she is incontinent and was malnourished. The Tribunal is satisfied that due to her impairments KND is dependent on others for meeting her food and hygiene needs. 8. Taking all these matters into account the Tribunal was satisfied that due to her physical impairment, KND is restricted in important life activities requiring the assistance of others regarding her lifestyle matters and decision making and is at least partially unable to manage her person. 9. Having reached these conclusions the Tribunal is satisfied that KND 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. 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. As noted above KND did not participate in the hearing and the Tribunal was unable to ascertain her view. However taking into account her opposition to the provision of services or placement in an aged care facility the Tribunal was of the view that she would be most likely to oppose the making of an order appointing a decision maker with respect to these matters. 3. As will be apparent from the preceding section of these Reasons, the Tribunal considered some of the issues regarding KND's current lifestyle decisions in the section of these Reasons dealing with whether she was a "person in need of a guardian". 4. As noted in that section of these Reasons, public hospital documents provided to the Tribunal report that: 1. KND was admitted on 19 June 2015 after being unable to rise from bed. She had been found by ambulance in a pool of her own faeces. 2. The admission was on a background of a recent one-week admission for generalised weakness and acopia. 3. KND was described as "very cachetic" and as being unkempt. She weighed 40kgs and had a lower-than-average BMI and had pressure areas and had previously had pressure areas. 4. KND was assessed by the Aged Care Assessment Team as needing high level care in the form of placement in residential care. Due to the level of care required services at home were not appropriate. KND and her son repeatedly stated that they did not want to place KND in a residential facility. 5. KND rejected advice that she would benefit from seeing a general practitioner to investigate the reasons for her to be unable to get out of bed and rejected the offer of a scan to assess why she was immobile. 1. In her application LZH states that when visited by community nurses and asked what she is drinking KND always replied 'bourbon and coke' and that when asked what she eats she said she sometimes has a toasted sandwich if DAH remembers. 2. An undated note of Ms Z, a Community RN, states that home visits to KND commenced on 24 July 2015 and makes statements to the effect that: 1. KND is doubly incontinent and has always wearing wet and/or soiled incontinence pads which were changed only infrequently. 2. KND's bed linen was soiled and had not been changed until changed by staff on 25 August 2015. 3. At the time of visits no food was seen and KND said that she was sick of having sandwiches. 4. KND had not been showered since her discharge from hospital. The bathroom at the house was cluttered and the shower recess was used as a storage space for bags of clothing and bedding. 5. KND and DAH had refused offers of equipment from the occupational therapy department. 6. KND was at risk because she was unable to get out of bed, was smoking and drinking alcohol in bed and had no access to a telephone or Vitalcall facility, and there was no access to the home by others to assist if DAH was absent. 1. The Tribunal accepts that as they did not participate in the hearing KND and DAH have not responded to the evidence of the health and medical professionals. However as noted above the Tribunal is satisfied that they were provided with notice of the hearing by postal service. 2. Taking these matters into account, the Tribunal was satisfied that there are urgent decisions to be made about KND's accommodation, services and health care. The Tribunal thought it likely that DAH is currently treated as KND's 'person responsible' for making decisions about her medical treatment should she be unable to do so. However taking into account the evidence that both DAH and KND rejected offers of assistance that were made because of KND's medical condition, and also noting the evidence of LZH that KND declined to undergo a CAT scan to investigate why she could not leave her bed, the Tribunal was satisfied that there is a need to appoint a substitute decision maker regarding her medical treatment. 3. The Tribunal was of the view that the making of a guardianship order of itself would not necessarily affect KND's family relationships. However the Tribunal accepts that guardianship decisions could affect the lifestyle that KND and her son have established for themselves. 4. Despite the possible effects of guardianship decisions on KND's family life, the Tribunal was satisfied that given KND's circumstances as indicated in the public hospital documents, it is necessary out of concern for her welfare that a substitute guardian consider matters related to her accommodation, services, health care and medical treatment. 5. Taking all of these matters into account the Tribunal was satisfied that it should make a guardianship order allocating to a guardian to functions of making decisions about the issues noted in the preceding paragraph. Who should be the guardian? 1. 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: the Act, s 15(3). 2. As there is no private person available to be appointed as guardian, the Tribunal appointed the Public 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. 2. The Tribunal decided to make an order for a limited period of three months only because KND and DAH were not in attendance at the hearing. At the review hearing they will be provided with another opportunity to attend and put their views. ********** 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: 29 June 2022