NSW Civil and Administrative Tribunal New South Wales Medium Neutral Citation: OKM [2023] NSWCATGD 2 Hearing dates: 10 February 2023 Date of orders: 10 February 2023 Decision date: 10 February 2023 Jurisdiction: Guardianship Division Before: S Roushan, Senior Member (Legal) Dr J Law, Senior Member (Professional) D R Sword, General Member (Community) Decision: Guardianship 1. A guardianship order is made for OKM. 2. The Public Guardian is appointed as the guardian. 3. This is a continuing guardianship order for a period of six weeks from 10 February 2023. 4. This is a limited guardianship order giving the guardian(s) custody of OKM to the extent necessary to carry out the functions below. FUNCTIONS: 5. The guardian has the following functions: a) Access To decide what access OKM has to others and the conditions of access. b) Accommodation To decide where OKM may reside. c) The guardian may authorise others including members of NSW Police and the Ambulance Service of NSW to: i) take OKM to a place approved by the guardian. ii) keep her at that place. iii) return her to that place should she leave it. d) Health care To decide what health care OKM may receive. e) Medical/Dental consent To make substitute decisions about proposed minor or major medical or dental treatment, where OKM is not capable of giving a valid consent. f) Services To make decisions about services to be provided to OKM. CONDITIONS: 6. The condition of this order is: a) Standard Condition In exercising this role the guardian shall take all reasonable steps to bring OKM to an understanding of the issues and to obtain and consider her views before making significant decisions. Financial Management Today's hearing is adjourned to a day to be confirmed by the registry. Catchwords: GUARDIANSHIP – application for a guardianship order – whether a guardianship order should be made – subject person with intellectual disability – subject person resides with spouse – evidence of coercive control in the relationship – decisions not currently made in the subject person's best interests – need for decisions to be made about access, health care, medical and dental consent, and services – accommodation function with power to authorise others – no private person suitable to be appointed – Public Guardian appointed – six week reviewable order made Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), ss 36(1), 45(1)(a), 45(1)(b)(i)-(ii), cl 5(1) of Sch 6 Guardianship Act 1987 (NSW), ss 3(1)-(2), 4,14, 14(2), 15(3) Cases Cited: C S and M Y v the Guardianship Tribunal and the Public Guardian (Supreme Court (NSW), Windeyer J, 29 November 1999, unrep) IF v IG [2004] NSWADTAP 3 P v NSW Trustee and Guardian [2015] NSWSC 579 Re B [2011] NSWSC 1075 ZBC v ZBD [2016] NSWCATAP 264 Texts Cited: None cited. Category: Principal judgment Parties: 003: Guardianship Application OKM (the person) EZC (applicant) FBN (carer, spouse) Public Guardian (proposed guardian) 004: Financial Management Application OKM (the person) EZC (applicant) FBN (carer, spouse) NSW Trustee and Guardian (proposed financial manager) Representation: J Kambas, separate representative for OKM File Number(s): NCAT 1999/00067021 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. OKM is 54 years old and is reported to have an intellectual disability. OKM is of Greek background, and she is proficient in both Greek and English. She currently resides in a Housing NSW unit in Inner West Sydney (the Inner West Sydney unit) with her partner and carer, FBN. OKM has limited contact with her mother and three older brothers who also reside in Sydney. OKM's daughter from a previous relationship, Ms Z, currently resides with OKM's mother. 2. In early January 2023, the Tribunal received applications for guardianship and financial management in relation to OKM from EZC, Support Coordinator from a disability service provider. In her applications, EZC raised serious concerns in relation to OKM's welfare and stated that she is at risk of neglect and exploitation. EZC proposed the appointment of the Public Guardian as OKM's guardian and the NSW Trustee and Guardian as her financial manager. 3. On 25 January 2023, the Tribunal ordered OKM to be separately represented. Mr John Kambas was subsequently appointed as OKM's separate representative. 4. On 4 February 2023, the Tribunal received an email from EZC, stating that she wished to withdraw her applications 'at this time' as 'the [disability service provider] witnesses who were to testify no longer can attend nor wish to be involved in the hearing as they are going through other pending personal issues'. 5. On 1 February 2023, the Tribunal received an email notification from Mr Y, of a law firm, that he had received instructions from OKM in relation to the applications lodged by EZC and that his client 'has specifically requested that she be granted leave for [him] to appear on her behalf at any upcoming Hearing'. Mr Y stated that he has been informed that the disability service provider ceased providing services to OKM on 23 December 2022, EZC is no longer employed by the disability service provider and that a new service provider, service provider XYZ, is currently providing all the necessary services for OKM. Mr Y expressed uncertainly as to 'what further standing' the applicant would have in relation to the applications. He also stated that he would be unable to attend the scheduled hearing due to prior travel arrangements and that his client 'should be given a proper opportunity to assemble her evidence and material that she wishes to put before the Tribunal to oppose the current Orders being sought', including further assessment by another health professional. On these bases, Mr Y requested that the proceedings be adjourned. 6. In a follow up email, dated 7 February 2023, Mr Y again stated that he is unavailable to attend the scheduled hearing by video or telephone and requested an adjournment. He submitted that his 'client' should be given leave to be legally represented and that appropriate time be provided to her to provide evidence 'to oppose the Application'. 7. In a further email, dated 9 February 2023, Mr Y stated that he has instructed his 'client' to attend the hearing and to formally request an adjournment for the reasons previously provided. 8. On 10 February 2023, the Tribunal received correspondence from Mr X, of another law firm, stating that his firm had received instructions on the previous day to act for OKM in relation to EZC's applications. He noted that OKM had provided him with 'scant documents' in relation to the applications and 'some instructions' to the effect that she was seeking to oppose both applications. Mr X stated that he was not in possession of any supporting documents, including medical evidence. He requested that the hearing be adjourned to enable OKM 'to be properly legally represented' as the applications 'will have significant bearing on her life'. Evidence in support of the applications The applications 1. In her application forms, EZC stated that OKM is a vulnerable person with an intellectual disability that affects her cognitive functioning and her ability to make lifestyle decisions and manage her own finances. 2. EZC stated that OKM is at risk of 'undernourishment', 'deprivation', 'neglect in receiving proper medical intervention' and 'financial exploitation'. After a period of residing in respite, OKM returned to the unit she shares with FBN, who is 75 years old and unable to care for himself or OKM appropriately. Their relationship is marked by a 'pattern' of domestic violence. FBN is 'intimidating and verbally aggressive' towards the disability service provider and medical staff, intervening to prevent appropriate care being provided for OKM. He has also arranged for a new support coordinator to provide care for OKM. The disability service provider and OKM's family fear for her ongoing safety against a background of 'sexual exploitation' and domestic violence. OKM has a 'low capacity' to make decisions and FBN is not 'capable' of being OKM's carer or to make decisions on her behalf. 3. EZC further stated OKM has been observed to give her ATM card to FBN, which remains in his possession for 'days'. He has also been observed to return the card to OKM with a $50 note on a fortnightly basis to spend on food and other necessities. EZC expressed concern that OKM is at risk of financial exploitation, affecting her nutrition and her ability to fund appropriate medical care. EZC's email of 1 January 2023 1. In an email accompanying her applications, EZC provided the following additional information. 2. OKM resides with FBN in a unit in Inner West Sydney. Whilst OKM has indicated that they are married, this claim has not been established and OKM still uses her maiden name 'for all formal appointments and NDIS plan'. 3. On 28 June 2022, FBN was admitted to a public hospital for surgery and two days later, the disability service provider moved OKM to an emergency short stay accommodation in Southwest Sydney after the Inner West Sydney unit was found to be in 'a complete squalor'. The disability service provider staff found the unit to be covered in urine and faeces to the point that the furniture had to be removed and disposed of. Subsequently, whilst FBN was still in hospital, the disability service provider, arranged for the Inner West Sydney unit to be forensically cleaned 'three times over to make it fit to live in'. 4. On 27 July 2022, FBN discharged himself from the public hospital against medical advice and moved back into the Inner West Sydney unit. Ageing and Disability Commission of NSW (ADC) attempted to arrange an aged care package to support FBN at home as they had concerns about his ability to care for himself after two toes were surgically removed, 'secondary to poorly managed diabetes'. However, he 'avoided engagement' on a number of occasions. Subsequently, the disability service provider facilitated a request by OKM to visit FBN at the Inner West Sydney unit. On that occasion, FBN was found by OKM and her support worker to be resting on a mattress 'covered with faeces from head to toe, looking very excoriated on his buttocks and surgical sites' (sic). FBN was taken by ambulance to another public hospital, but he discharged himself again against medical advice on 15 August 2022. 5. Following this early discharge, FBN tried to move into the Southwest Sydney premises without consulting the disability service provider staff or formal agreements being in place. OKM, who is visually impaired, was expected and made to wash FBN's 'faecal covered laundry post his early discharges from hospital'. During the most recent OT assessment at the Inner West Sydney unit, the place was observed to be malodorous with plastic bags filled with used incontinent pads 'left lying around'. FBN continues to have incontinence issues. 6. Whilst FBN presents 'well in speech', it is apparent that he is not making 'good rational choices', concerning his own, as well as OKM's healthcare. FBN became increasingly interfering in OKM's medical appointments and urgent surgical procedures, and on numerous occasions, he was verbally aggressive and threatening towards reception staff at medical centres and specialists' offices as witnessed by the disability service provider support workers. There have also been instances of threatening and intimidating behaviour and verbal aggression towards the disability service provider support workers, and office staff, with threats of legal action if the disability service provider did not meet FBN's demands. 7. Upon her arrival at the Southwest Sydney accommodation, OKM was identified as having various health issues, including vitamin deficiency and low Iron level, requiring regular Iron injections and infusion prior to surgery. Attempts to discuss OKM's needs with FBN was met with 'resistance and verbal aggression'. 8. Support workers have witnessed and reported overhearing 'verbal coaching' by FBN over the phone, instructing OKM what to say to staff and support coordination. He has asked OKM to 'call him "Daddy"', to 'keep secrets from staff, and insisting on her telling him that she loves him. As a result, OKM at times behaves in a way that is against her own interests in order to comply with FBN's 'ideas and plans'. On many occasions, OKM 'was caught lying to staff, to protect FBN', including stating that she was going to stay with FBN's sister until 1 January 2023. OKM requested all her services be cancelled for this period, which the disability service provider accommodated. Due to concerns for OKM's safety, EZC formulated a plan over this period to remain in regular communication with her to ensure her welfare. EZC also reported her concerns to the ADC. 9. Support staff have also frequently observed OKM 'handing over' her ATM card to FBN at his request. On many occasions, OKM did not have the card in her possession when she wanted to make a purchase, resulting in support workers buying food and other supplies for her. FBN reportedly gave OKM $50.00 as an allowance on a fortnightly basis and with this money OKM purchased frozen meals to last for the next fourteen days. The disability service provider staff have purchased food items with their own money to assist OKM. On other occasions, FBN was seen purchasing sausage rolls or pies for OKM to eat, when they met at Southwest Sydney shops. 10. OKM's family have reported 'a history of domestic violence, with an AVO in the past filed with [Inner West Sydney] police station against [FBN]'. There was also a mention of a 'history of sexual exploitation' in Inner West Sydney 'involving [FBN] treating [OKM] as an escort, to the local men'. This was reported to OKM's family by one of the men involved, who was also a neighbour. 11. FBN has more recently arranged for a new support coordinator to take over OKM's services. Previous support coordinators from support service provider ABC have reported that FBN has a history of moving OKM 'from one support coordinator to another, when his controlling behaviours are revealed'. 12. Due to her intellectual disability, OKM finds it difficult to discern the circumstances she is living under and cannot perceive the dangers facing her. Ms W's letter 1. In a letter, dated 9 February 2023, Ms W, CEO of the disability service provider, supported the guardianship application and provided a detailed account of incidents she had witnessed while providing services to OKM. Ms W's account of these incidents are consistent with EZC's evidence as detailed in her email of 1 January 2023. In particular, Ms W confirmed that in July 2022 she had received evidence showing, and she had personally witnessed, the Inner West Sydney unit to be in an unliveable condition with faeces, urine and rubbish covering the house and 'the kitchen bench, floor and electricals such as kettle and toaster were smudged with faeces'. At this time, FBN was residing in the unit after having discharged himself from hospital. FBN's poor state of self-care and incontinence was also apparent when he had 'showed up to the [Southwest Sydney] house unannounced' late at night and eventually approval was given for him to stay overnight. 2. Ms W also reported having witnessed FBN asking OKM to do his laundry, being verbally aggressive towards her, using her money and coaching her 'on everything that she is to do and disconnect [her] not only from important services…, but also take control of [OKM]'s decision making'. She also reported witnessing that in FBN's absence, OKM would express her wishes and complain about his 'controlling behaviour'. In FBN's presence, however, OKM 'would speak prompted by FBN, FBN would speak to OKM with phrases such as "[OKM] you want to live with me and no one else, isn't it [OKM]". [OKM] would respond "yes" and would repeat sentences that would re-affirm what [FBN] just said.' 3. Ms W stated that she observed OKM to be 'in a very vulnerable situation, financially, emotionally and physically' and that she 'does not have a say or is able to exercise her freedom of choice and control or able to do so as she is very influenced by what [FBN] wants to do'. FBN has a tendency to change OKM's service providers when risks are recognised, and concerns are raised. Ageing and Disability Commission NSW 1. On 6 February 2023, the Tribunal received a letter from Ms U, Case Coordinator at the ADC, in connection with EZC's guardianship application. In her letter, Ms U provided detailed background information, noting that ADC had received two reports of concern relating to OKM in January 2022 and November 2022, raising allegations of abuse and exploitation. Ms U noted that the reports alleged that the Inner West Sydney unit was in poor condition 'with cockroaches, mould, squalor and generally unsanitary conditions with used continence products not regularly removed and mouldy food stuffs'. The reports also raised concerns that OKM's services and supports were being 'controlled and cancelled' by FBN. She further noted that progress notes received 'provided evidence that service providers were cancelled, reduced by [FBN] and [OKM] was not always consulted regarding these changes'. Since 2019, OKM has had five changed Coordination of Supports (COS). She is currently accessing supports morning and evening three days per week but no supports across the weekend, which was previously available to her. 2. Ms U stated that attempts to have OKM's unit fumigated and properly cleaned had initially failed as FBN had 'reportedly declined access to the unit'. During an initial meeting with ADC in February 2022, OKM indicated that her unit was unsafe, and she preferred the short-term accommodation. Following a review of her National Disability Insurance Scheme (NDIS) plan, funding was provided for additional in-home supports, but further assessments were required to consider alternative accommodation such as Supported independent Living (SIL). OKM had reportedly indicated to the NDIS planner that she would prefer to be in SIL. Housing NSW had noted a strong smell of urine outside the door and landing of the unit in June 2022 and subsequent photographs provided to ADC depicted 'the level of squalor present in the unit at this time'. 3. Whilst residing in interim accommodation located at Southwest Sydney, OKM indicated that she wanted to return home but with increased supports. The ADC subsequently met with FBN in the public hospital to ensure that services would be allowed in for OKM if she returned home. According to Ms U, it was noted that FBN was 'adamant that he needed to be with OKM despite the fact that she was in interim accommodation with her own supports'. As FBN had his own health needs, an aged care assessment was arranged for him as part of his own discharge planning. FBN, however, discharged himself from the public hospital against medical advice and was not assessed for his own supports. He reportedly returned home but required further hospitalisations at two different hospitals. 4. Ms U stated that whilst OKM was residing at Southwest Sydney, FBN continued to stay at the Inner West Sydney unit 'to ensure [OKM] was safe and it was arranged that [FBN] would visit her at [Southwest Sydney], rather than have her return to the Housing NSW property'. FBN, however, had attempted to reside with OKM at Southwest Sydney. Additionally, OKM was assessed by a Behaviour Support Practitioner and Occupational Therapist to facilitate a review of her supports. On 22 November 2022, ADC was informed that OKM had requested to stay at the Inner West Sydney unit with FBN. A plan was formulated for her to remain in regular contact with her provider and to return to interim accommodation on 1 January 2023. This agreed plan was changed, and OKM's Support Coordination service was subsequently cancelled. 5. Ms U provided the following concluding observations and recommendation: "It has been documented that the Housing NSW unit has been poorly maintained requiring forensic cleaning. [FBN] has reportedly blocked supports to enter the home which may have contributed to the living conditions deteriorating. As [FBN] is [OKM] carer, the ADC is of the opinion that as there have been concerns raised about her living conditions, access to services and finances, an alternate decision maker should be considered… It is the ADC's view that the interests of [OKM] would be best served by a Public Guardian as we have not been in contact with any family members to establish any other options." Occupational Therapy Report 1. An Occupational Therapy Supported Independent Living (SIL) Assessment Report was completed by Mr V on 14 October 2022. In conducting his assessment, Mr V relied on an occupational therapy functional capacity report dated 13 March 2022, a SIL assessment, a Care and Needs Scale (CANS) and a Rowland Universal Dementia Scale (RUDAS). Mr V stated that OKM has a primary diagnosis of visual impairment, optic myopia, tunnel vision and depth perception issues, intellectual disability and cognitive deficiency. She presents as a vulnerable person due to her 'cognitive and intellectual deficits' and disability, requiring support to understand complex information and make important decisions. Mr V noted that, during the assessment, OKM was observed to have 'difficulty understanding some instructions and social cues'. OKM has expressive and receptive communication deficits which impair her ability to communicate effectively to others. 2. Mr V also observed that FBN was present during a second assessment, and he would often answer questions on OKM's behalf 'unprompted', restricting her from sharing information that she would have otherwise shared. Mr V referred to the March 2022 report, noting that FBN had refused to sign OKM's medical assessments which would have assisted with her housing transfer, resulting in him being removed as her nominee. 3. With regard to OKM's cognition, Mr V noted that she has 'difficulty comprehending complex information and requires help with decision making'. She also has difficulty interpreting social cues and social etiquette. OKM had scored 19/30 in a RUDAS, suggesting moderate cognitive impairment and difficulties with executive decision making, functioning skills, problem solving and planning. Mr V stated that OKM's 'impaired cognition along with her inability to interpret social cues results in her being vulnerable to external exploitation from those who want to take advantage of her situation'. In relation to her psychological state, Mr V reported that OKM's relationship with FBN has been observed to be 'a stressful point of discussion for her, with numerous support workers, and service providers reporting that the relationship involves FBN's abuse of power and exploitation of OKM's cognitive deficits. This exploitation involves taking away OKM's executive decision-making responsibilities, as well as suspected domestic abuse and sexual exploitation.' Neuropsychological Report 1. In a neuropsychological report, dated 19 October 2022, Dr T, Clinical Neuropsychologist and forensic Psychologist, provided the following information and assessment. In forming her opinion, Dr T relied on information provided by service providers, the Occupational Therapy Report, and interviews conducted with OKM and her brother, Mr S. Dr T made the following observations in relation OKM's presentation at the interview: "On interview, her responses were often vague and required clarification and prompting to elicit further information. Responses were at times contradictory once farther clarification or prompting was provided. At times, she also seemed to agree with information put to her until further questioning indicated a different response. A lack of insight and awareness or denial of her personal circumstances and family relations was apparent…." 1. Dr T assessed OKM's premorbid functioning as Extremely Low to Borderline and her cognitive functioning to be 'in the impaired range'. She stated: "At current assessment, difficulties with receptive and expressive communication were evident on interview. She was quietly spoken and provided vague and simplistic information, containing grammatical errors, which was often seemingly contradictory. She was also overly agreeable excluding issues pertaining to others' concerns about her safety in her current relationship. Performance on measures of cognitive functioning were consistent with existing diagnosis of intellectual disability, displaying a flat cognitive profile, with skills across the board (intellectual skills, processing speed, attention, aspects of new learning and memory, and executive functioning) in the Extremely Low range. She did display relative strength in recall for simple repeated information. Informant rated measure of adaptive skills indicated Extremely Low adaptive skills. Taken together, information available indicates she would meet DSM-5-TR2 criteria for an Intellectual Disability of Severe severity level." 1. Dr T was of the opinion that OKM does not have capacity to manage her finances, despite evidence of some basic understanding of her expenses, and some very basic ability to solve some common problems. OKM is extremely vulnerable due to needing to be reliant on others. Dr T expressed the view that it is not 'improbable' that, as reported and on the basis of 'her profile of widespread impairments and relative strength in role learning', she may be coached by her partner on what to say. Dr T was also of the view that appointment of a financial manager 'is highly recommended in order to safeguard [OKM]'s interests'. Dr T also recommended consideration of guardianship in 'all domains' relating to lifestyle decisions, as the present supported decision making through her partner does not appear to be adequate due to concerns regarding 'vested interests' and 'suspicions of exploitation'. 2. Dr T further concluded that the amount of care currently being received by OKM appears to be incompatible with the 'extensive supports required for her disability needs and physical and social vulnerabilities' and 'given her severe impairments in cognitive functioning and her visual impairments' she requires 24-hour care arrangements. The hearing 1. The matter was listed for hearing on Friday, 10 February 2023. The relevant parties have been listed on the front page of these Reasons for Decision and the witnesses who attended the hearing are listed at the end. [Appendix removed for publication.] Withdrawal, adjournment and representation 1. NCAT's Guardianship Division exercises a protective jurisdiction under the Guardianship Act 1987 (NSW) (the Act). In P v NSW Trustee and Guardian [2015] NSWSC 579, Lindsay J [at 52] described the purposive character of this protective jurisdiction as follows: "The purposive character of the protective jurisdiction (including that exercised by the Guardianship Division of NCAT, and the Mental Health Review Tribunal, by legislation) is governed by a central informing idea: that the jurisdiction exists for the care of those who are not able to take care of themselves (Secretary Department of Health and Community Services v JWB and SMB (Marion's Case) [1992] HCA 15; (1992) 175 CLR 218 at 258), and that an exercise of the jurisdiction affecting a person in need of protection must be for the benefit, and in the best interests, of that person as an individual, not for the benefit of the state, or others, or for the convenience of carers (Re Eve [1986] 2 SCR 388 at 409-411, 414, 425-428, 429-430, 431-432 and 434; 31 DLR (4th) 1 at 16-17, 19, 28-30, 31, 32 and 34). Implicit in the focus on a person in need of protection "as an individual" is respect for his or her autonomy. The jurisdiction's central, informing idea (sometimes described as the 'welfare principle' or the 'paramountcy principle') finds legislative expression, in similar terms, in both the Guardianship Act, section 4 and the NSW Trustee and Guardian Act, section 39: CJ v AKJ [2015] NSWSC 498 at [17]-[29]." 1. Under s 4 of the Act, it is the duty of everyone exercising functions under the Act with respect to persons who have disabilities to observe the following principles: 1. the welfare and interests of such persons should be given paramount consideration, 2. the freedom of decision and freedom of action of such persons should be restricted as little as possible, 3. such persons should be encouraged, as far as possible, to live a normal life in the community, 4. the views of such persons in relation to the exercise of those functions should be taken into consideration, 5. the importance of preserving the family relationships and the cultural and linguistic environments of such persons should be recognised, 6. such persons should be encouraged, as far as possible, to be self-reliant in matters relating to their personal, domestic and financial affairs, 7. such persons should be protected from neglect, abuse and exploitation, 8. the community should be encouraged to apply and promote these principles. 1. The words of s 4 of the Act make plain that it is mandatory, not merely exhortatory, for a person exercising functions under the Act, in this case the Tribunal, to take into account the principles listed in s 4 of that Act. As Lindsay J pointed out at P v NSW Trustee and Guardian at [53]-[58], the obligation to have regard to those principles is reinforced by cl 5(1) of Sch 6 to the Civil and Administrative Tribunal Act 2013 (NSW), which provides that when exercising its 'Division functions for the purposes of the Guardianship Act 1987', the Tribunal is under a duty to observe the principles set out in s 4 of the Act (see also, ZBC v ZBD [2016] NSWCATAP 264 at [101], [105]). Withdrawal request 1. In the Guardianship Division, applications can only be withdrawn with the permission of the Tribunal, which must be satisfied that there is no longer a need for an order to be made for the person who is the subject of the application. 2. EZC's stated reason for wishing to withdraw her applications was that 'the disability service provider witnesses who were to testify no longer can attend nor wish to be involved in the hearing as they are going through other pending personal issues'. Having considered the principles in s 4 of the Act and the written evidence submitted in support of the applications, we formed the view that that there was sufficient information before us to proceed without the need to rely on further evidence from 'the disability service provider witnesses'. We did not consider the reasons provided to form a reasonable basis for us to consent to the applications being withdrawn. We did not give consent to the applications being withdrawn. Adjournment request 1. In his emails to the Tribunal, Mr Y requested that the hearing in relation to the two applications be adjourned. This request was made on the basis that his client (OKM) 'should be given a proper opportunity to assemble her evidence and material that she wishes to put before the Tribunal to oppose the current Orders being sought', including further assessment by another health professional. He also stated that he could not make himself available for the scheduled hearing by any means due to previously scheduled travel and business arrangements. 2. As noted above, on 10 February 2023, the Tribunal received correspondence from Mr X that he had received instructions to act for OKM in relation to EZC's applications and that he would be attending the scheduled hearing by video. In his letter, Mr X stated that he was not in possession of any supporting documents, including medical evidence. He requested that the hearing be adjourned to enable OKM 'to be properly legally represented'. 3. We carefully considered the requests for adjournment. As noted above, the express purpose of the Tribunal's protective jurisdiction is to protect and promote the rights and welfare of adults with impaired decision-making capacity. The evidence set out above clearly shows that OKM had been assessed by a neuropsychologist and an occupational therapist, both of whom produced detailed reports. The contents of these reports referred to the serious nature of the concerns raised in relation to OKM welfare and safety. In his correspondence, Mr Y did not identify the nature of evidence and material OKM intended to produce and their relevance in order to oppose the applications. Nor did he provide any persuasive reasons or details as to why further assessment by another health professional was necessary in relation to 'at least all of the issues' raised by Dr T in her report. 4. With regard to Mr X, who fortunately was able to attend the hearing, we took into consideration his submission that he was not in possession of any of the documents relating to the applications, including the medical evidence. However, we were not persuaded that it was in OKM's best interests to adjourn the hearing for Mr X's stated purpose of enabling proper legal representation. For reasons detailed further below, we were not satisfied that leave should be granted for OKM to be legally represented. We did not consider proper legal representation to form an appropriate basis for adjourning the hearing. As a separate representative had been appointed for OKM, we were not satisfied that proceeding with the hearing would disadvantage OKM. On the contrary, we formed the view that delaying the proceeding may pose a risk to her safety and welfare. For these reasons, having considered the section 4 principles together with the guiding principle in s 36(1) of the Civil and Administrative Tribunal Act, we decided to refuse the requests for adjournment. Representation 1. A party to proceedings in the Tribunal has the carriage of the party's own case and is not entitled to representation: Civil and Administrative Tribunal Act, s 45(1)(a). 2. A party may only be represented by another person if the Tribunal grants leave for the person to represent the party (s 45(1)(b)(i) of the Civil and Administrative Tribunal Act) or in the case of representation by an Australian legal practitioner – for a particular or any legal Australian legal practitioner to represent the party (s 45(1)(b)(ii) of the Civil and Administrative Tribunal Act). If the subject person is unable to give instructions to a legal practitioner the Tribunal may appoint a separate representative instead of granting leave for a particular legal practitioner or for any legal practitioner to represent the subject person (section 45(4)(c) of the Act). 3. The Tribunal has broad discretion to decide whether to grant an application for a person to represent a party or for legal representation generally and takes into account the principles in s 4 of the Act when making a decision about such an application. Some considerations that may be relevant to the Tribunal's determination to grant leave include whether representation will promote the principles in s 4 of the Act, in particular the paramount consideration, being the interests of the subject person; the guiding principle set out in s 36(1) of the Civil and Administrative Tribunal Act to facilitate the just, quick and cheap resolution of the real issues in the proceedings; and whether representation may assist a party to focus on the relevant issues and may promote a conciliatory approach in the proceedings. 4. Other than the stated reasons for their requests for an adjournment and the intention of their client to oppose the applications, neither Mr Y nor Mr X provided any persuasive reason as to why they were seeking leave to represent OKM. Mr Y did not attend the hearing and no further communication was received from him to clarify whether or not he continued to act on behalf of OKM. Mr X, however, was invited to make submissions in this regard. He stated that he had erroneously assumed that leave had already been granted. He added that this is an important application and based on his observations OKM is unable to articulate what she is thinking or what she wants, and legal representation would assist in presenting her interests. As we pointed out to Mr X, following orders previously made by the Tribunal, a separate representative, Mr Kambas, had been appointed to present OKM's views and represent her interests. 5. More importantly, we had serious concerns as to how OKM had been able to instruct Mr X, or Mr Y before him, in relation to the applications under consideration. Mr X stated that OKM had spoken to him on the phone and was able to articulate her instructions. We had difficulty reconciling this view with Mr X's own earlier observations that OKM is unable to articulate her thoughts or her wishes. Mr Kambas informed us at the hearing that when he had first attempted to speak to OKM, FBN was interfering and coaching her, resulting in Mr Kambas communicating with OKM in Greek in order to ascertain her views. He also expressed the view that it was 'clear' to him that OKM does not have the capacity to instruct, and that the lawyers involved have been instructed by FBN. We could not rule out the possibility of OKM having provided her instructions to the lawyers purportedly retained with FBN's prompting and under his influence. 6. For all the above reasons, we decided that leave should not be granted. However, we made it clear to Mr X that he was free to remain throughout the hearing as a McKenzie friend if he wished to do so. The Guardianship Application 1. The questions which had to be decided by the Tribunal were: 1. Is OKM 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 OKM 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 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': 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, 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. As noted above, Dr T assessed OKM's 'skills across the board (intellectual skills, processing speed, attention, aspects of new learning and memory, and executive functioning)', as well as her adaptive skills to be in the 'extremely low' range. Dr T diagnosed her with an 'Intellectual Disability of Severe severity level'. 2. In his report, Mr V stated that OKM had scored 19/30 in a RUDAS, suggesting moderate cognitive impairment and difficulties with executive decision making, functioning skills, problem solving and planning. He noted that OKM presents as a vulnerable person due to her 'cognitive and intellectual deficits' and disability, requiring support to understand complex information and make important decisions. 3. At the hearing, OKM told us that she did not need help with decisions and that she can manage 'somethings'. When asked what things she can manage, she said she can speak for herself, and she can do public speaking 'like you do'. She said every day of the week she goes to 'meetings like this' and she makes her decisions. She added that she can decide 'where to go' and 'what I can do', and that she does not need any help with decisions. OKM manner of interaction with the Tribunal and the contents of her evidence was consistent with the medical evidence before us. 4. FBN expressed the view that OKM has full capacity to make decisions and he just provides her with 'options'. He added that OKM needs information and time to think before making her decisions. 5. As we noted at the hearing, FBN's view varied considerably from the views expressed in the medical evidence before us. Mr Kambas submitted that the medical evidence provided to the Tribunal should be accepted that OKM does not have the capacity to make lifestyle decisions. 6. We agreed with Ms Kambas' submissions. We were satisfied on the basis of the evidence before us that OKM's disability, being an intellectual disability results in her being restricted in her major life activities to such an extent that she requires supervision and assistance and is thereby incapable of managing her own person. We were, therefore, satisfied that a guardianship order could be made for OKM. 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). Coercive control 1. In his report, Mr V referred to FBN being present during a second assessment and often answering questions on OKM's behalf 'unprompted', restricting her from sharing information that she would have otherwise shared. Mr V also referred to reports of FBN's abuse of power and exploitation of OKM's cognitive deficits. He noted that FBN had previously refused to sign OKM's medical assessments which would have assisted with her housing transfer, resulting in him being removed as her nominee. 2. Dr T also referred to observations by Mr OKM's support coordinator that FBN controls most aspects of OKM's life, including coaching her on what to say to support workers and requesting OKM relay back to him every detail of meetings he was not privy to. These reports of control and manipulation were sighted in EZC's email provided in support of her applications, the letter from Ms W and Ms U's report to the Tribunal. Ms U had noted that, at the time of her report, OKM was accessing services, including weekend supports to take her out in the community. Although these weekend supports were for OKM, FBN would also attend at times. She further noted that whilst FBN was at the public hospital, he was adamant that he needed to be with OKM despite the fact that she was in interim accommodation with her own supports. 3. At the hearing, OKM's current support coordinator, Ms R from service provider XYZ, reported having observed FBN communicating on OKM's behalf to convey her needs and that he has asked OKM's support workers for assistance in relation to his own care needs, which had been denied. 4. Mr S told us that he believed FBN is very manipulative and does not act in his sister's best interests. Ms Z also stated that she did not believe FBN acts in her mother's best interests; and that he speaks on her behalf and puts words in her mouth. She had also observed FBN being very aggressive towards OKM over the phone when she visited her family. 5. In representing OKM's best interests, Mr Kambas stated that when he initially contacted OKM, he could hear FBN in the background. He was told by OKM that she was not interested and that she has a lawyer, before disconnecting the call. He was subsequently contacted by 'an aggressive' FBN, who wanted to know who Mr Kambas was and what was his role. Mr Kambas was told that a lawyer had been retained and they did not want the matter to proceed. FBN then passed the telephone to OKM, but this time Mr Kambas spoke to her in Greek and succeeded in obtaining her views. Ms Kambas reported that OKM was adamant that EZC and the Tribunal 'were going to get her money'. OKM had told Mr Kambas that FBN was a good man who protected her, that her mother and brother 'don't say much' about FBN and that her daughter loves him. Mr Kambas submitted that these assertions were manifestly untrue as OKM's mother, brother, and daughter dislike FBN and believe him to be manipulative and controlling. Mr Kambas was of the view that there is evidence of coercive control in the relationship. 6. We asked FBN if he wished to respond to the evidence in relation to his behaviour towards OKM. He stated that OKM's family and others have a personal dislike for him and that EZC and the disability service provider are motivated by financial gain. 7. Having considered the evidence before us, we had little doubt that OKM's relationship with FBN is marked by a pattern of controlling and manipulative behaviours by FBN aimed at making OKM dependent by regulating her everyday behaviour, isolating her from support, exploiting her and depriving her of independence. We were satisfied that this course of conduct continues to have serious adverse impact on OKM's capacity to engage in some or all of her ordinary day-to-day activities and that it may constitute coercive control. Need for guardianship 1. It was apparent to us that FBN's controlling behaviour has been a significant contributing factor to OKM living in squalor and insanitary environments. We accepted EZC's evidence that in 2022, the disability service provider had arranged for the Inner West Sydney unit to be forensically cleaned on three occasions and furniture removed at the cost of approximately $6000 to make the unit habitable again. This evidence was supported by Ms U's report. Whilst OKM had indicated to Dr T that she did not think there had been concerns regarding the physical environment or cleanliness of the unit, according to Mr V's report, she had previously expressed concerns over her previous living environment (the Inner West Sydney unit), stating that she preferred the Southwest Sydney accommodation due to it being clean and a space. We also accepted Ms Z's evidence that when her mother had previously visited her, she had expressed the wish not to return to the Inner West Sydney unit due to it being 'very messy'. In addition, according to Dr T, the Inner West Sydney unit has four flights of stairs, which is not appropriate given OKM vision impairment. Similarly, Mr V referred to OKM demonstrating some lower limb weakness, particularly when 'mobilising up stairs', increasing her risk of falls. 2. The evidence before us, which we accepted, also indicated that service providers were cancelled, or services were reduced by FBN without OKM always being consulted regarding these changes. According to Ms R, service provider XYZ had taken over from the disability service provider as OKM's service providers in November 2022. In her letter, Ms W stated that the disability service provider had replaced a previous service provider a few months earlier at FBN's request. FBN had claimed that OKM's previous support coordinator was abusing her funds and not working in her best interests. At the hearing, FBN repeated the same allegations against the disability service provider. There was no evidence before us to suggest that any of these allegations have been substantiated. Dr T stated in her report that the amount of care currently being received by OKM is not compatible with the 'extensive supports required for her disability needs and physical and social vulnerabilities' and 'given her severe impairments in cognitive functioning and her visual impairments' she requires 24-hour care arrangements. 3. With regard to health care and medical and dental treatment, OKM has a number of health-related issues that require regular assessment and review. We accepted EZC's evidence that FBN is increasingly interfering in OKM's medical appointments and urgent surgical procedures. We further accepted that support workers in the past have tried to discuss OKM's needs with FBN on numerous occasions, 'but this has been met with resistance and verbal aggression'. At the hearing Ms R stated that she had observed FBN objecting to the purchase of an ointment needed by OKM due to its cost, being $18. 4. We were satisfied on the basis of the evidence before us that decisions are not currently being made in the best interests of OKM. Having regard to the mandatory considerations set out in s 14(2) of the Act and after weighing the principles in s 4 of that Act, we were satisfied that a guardianship order should be made. We were of the view that the appointed guardian should have the functions of accommodation, health care, medical and dental treatment and services. In view of FBN's pattern of controlling behaviour and interference, we decided that the appointed guardian should also have an access function to ensure that OKM is able to have adequate, reasonable contact with her family and that her views can be obtained in relation to the range of matters concerning her welfare without interference or direction by FBN. We were further satisfied that the appointed guardian should have the additional authority to authorise others to take OKM to a particular place, to keep her there and return her to that place. We were satisfied, on the evidence, that these additional powers were necessary in all of the circumstances to ensure OKM's safety and welfare. 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 [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. In her application, EZC proposed the appointment of the Public Guardian as OKM's guardian. For the reasons already outlined, we did not consider FBN to be a suitable person to be appointed as OKM's guardian. OKM's daughter and her brother did not express a willingness to be appointed as guardian(s) and we were cognisant of the current fragile relationship between OKM and members of her immediate family, as well as the difficult decisions that the appointed guardian must make in relation to OKM. Therefore, in the absence of a suitable private person to make decisions in relation to OKM, having regard to the principles set out in s 4 of the Act we decided to appoint the Public Guardian as guardian. How long should the order last? 1. Initial guardianship orders are usually made for a maximum of one year from the date on which they were made. In view of the particular circumstances of this case and the nature of the functions conferred upon the Public Guardian, we considered a shorter reviewable order to be appropriate. We therefore decided to make an order for six weeks to be reviewed at the end of this period. Financial Management Application 1. Due to the insufficient remaining time available to us to consider the financial management application, we decided to adjourn the hearing to a day to be confirmed by the registry. ********** 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: 03 April 2023