NSW Civil and Administrative Tribunal New South Wales Medium Neutral Citation: KTT [2014] NSWCATGD 6 Hearing dates: 19 February 2014 Decision date: 19 February 2014 Jurisdiction: Guardianship Division Before: Simpson J, Senior Member (Legal) West C, Senior Member (Professional) Fraser J, General Member (Community) Decision: Application for guardianship order dismissed. Catchwords: GUARDIANSHIP - application for guardianship order - young person aged under 18 years - need for an order - person responsible available and willing to act - National Disability Insurance Scheme nominee provisions - principle of least restriction. Legislation Cited: Guardianship Act 1987 (NSW) Category: Principal judgment Parties: Mr KTT Mrs LBU (Applicant) The Public Guardian File Number(s): 55190 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 (s 65, Civil and Administrative Tribunal Act 2013 (NSW)). reasons for decision Background 1Mr KTT lives in a group home at the North Coast run by Service Provider A. He turned 18 on 23 December 2013. Mr KTT has autism spectrum disorder and an intellectual disability. Until mid-2013, Mr KTT was living with his mother Mrs LBU. However, his behaviour had become extremely challenging and Mr KTT then spent a period with Service Provider B before moving into the current service later in the year. This was with funding under the National Disability Insurance Scheme (NDIS). Mrs LBU had a range of concerns about decisions that had occurred and the process for them in the later part of 2013 and applied for a guardianship order. She was keen to be appointed as her son's guardian. What did Tribunal have to decide? 2The questions which had to be decided by the Tribunal were: (1)Is Mr KTT 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? 3In deciding under (2) above whether to make a guardianship order, the Tribunal needs to take account of all relevant factors, including those listed in s 14(2) of the Guardianship Act 1987 (NSW) ('the Guardianship Act'). These relate to the views of Mr KTT and any carer, preserving family relationships, preserving cultural and linguistic environments and the practicability of services being provided instead of making a guardianship order. The Tribunal can be guided by the principles in s 4 of the Act, in particular regarding Mr KTT's interests as its paramount consideration. Does Mr KTT have a disability that prevents him from being able to make important life decisions? 4In her application, Mrs LBU said that her son was incapable of making decisions on his own. Dr Z, senior staff specialist in neuropsychiatry, reported in November 2013 that Mr KTT has autism spectrum disorder and a moderate intellectual disability with impaired expressive communication, behavioural rigidity and inability to tolerate change. In the hearing, the Tribunal found it very difficult to communicate verbally with Mr KTT. 5The Tribunal was clear that Mr KTT has an intellectual disability and autism spectrum disorder leading to high support needs and his being unable to make important life decisions about issues such as where he should live, health care and what support services he needs. Should the Tribunal make a guardianship order? 6In her application, Mrs LBU said that her son was about to turn 18. Through his childhood, she had managed all of his care needs and it was in his interests for this to continue. In her statement of 16 November 2013, Mrs LBU spelt out wide ranging concerns in relation to the decision-making process that occurred in the latter part of 2013 when her son was coming under the NDIS and in the early part of his time in supported accommodation with the Service Provider A. The National Disability Insurance Agency (NDIA) processes had been confusing and she had had no real choice. An unduly quick transition had occurred from the Service Provider B to the Service Provider A group home and this had a negative impact on her son's behaviour. Service Provider A did not adequately consult with her and her access to her son was inappropriately restricted. She wanted to be guardian so that she could keep her son safe and happy. 7In the hearing, Mrs LBU indicated that her relationship with Service Provider A has become much more positive. She spoke positively about her son's placement and she now supported it being an ongoing one. She is invited to meetings in relation to her son and can speak up at those meetings. She deals with Service Provider A casework manager Mr LLR in relation to visits with her son and finds this a satisfactory way to make decisions about this issue. 8Ms NET from Service Provider A said that plans in relation to Mr KTT attending the day program are happening. Service Provider A had been using a behaviour support plan developed by ADHC and a revised plan is being finalised. Mr KTT was reviewed the week before the hearing by Dr Z leading to a change of medication. 9Mrs LBU said she could have attended the appointment with Dr Z. She had attended the previous appointment and given consent to the medication regime that was then introduced. She had not yet been approached for consent in relation to the recent change. 10Mrs LBU expressed concern that she had was not told for two days about her son being taken to hospital. Mr PYT, Service Provider A manager, said that this was a failing by Service Provider A. 11The Tribunal noted that now that Mr KTT is 18, the NDIA will presumably appoint a plan nominee to represent Mr KTT in dealings about his NDIS participant's plan. Mrs LBU was clear that she should have this role and Mr PYT strongly supported this. 12Mrs LBU was concerned what might happen if, in the future, she wanted to move her son and was not guardian. Mr PYT said that Service Provider A would not resist such a move. 13Mr PYT said that Service Provider A now had a good relationship with Mrs LBU. He said the service did get things wrong at the start. Ms NET acknowledged that Mrs LBU's initial experience with the NDIA had made her anxious. 14Mrs LBU told the Tribunal about difficulties with the police when her son was living with her when not being guardian was a problem. Mr PYT said that the police in the area where Mrs LBU lives are difficult to deal with but the police where Mr KTT is now living are different. 15Mrs LBU raised two financial issues that she felt were relevant to the need for guardianship - the difficulty that she had had opening a bank account for her son and confirming her role as Centrelink nominee now that her son is an adult. The Tribunal noted that these issues could hopefully be resolved without an order from it but in any case they were financial management issues rather than guardianship issues. 16The Tribunal read Mr KTT's NDIS plan which started in December 2013. The plan was based on objectives for Mr KTT to transition from Service Provider B to long-term accommodation, to continue transition from school to the day program, to continue to have social outings with his family and to be able to manage his emotions. The funding allocation was included in the plan. The plan will be reviewed in May 2014. Legislative provisions in relation to decision making for Mr KTT 17Some laws provide for a person such as a family carer to make decisions on behalf of a person with disability without being appointed as guardian. The Guardianship Act provides that the consent of a "person responsible" is required for most medical or dental treatments that a person with disability does not understand. In Mr KTT case, his mother is person responsible due to his being in her care prior to going into supported accommodation. 18Under the National Disability Insurance Scheme Act Part 4, Mrs LBU as mother had authority to deal with the NDIA on behalf of Mr KTT while he was a child - until December 2013. 19In relation to adults, the NDIA can appoint a "plan nominee" for an adult participant in the NDIS. Unless the appointment says otherwise, the plan nominee can fully represent Mr KTT in all dealings about the participant's plan and the management of funding (NDIS Act, Part 5). 20The NDIS (Nominees) Rules emphasise that a nominee should only be appointed where it is not possible for a participant to be assisted to make decisions for themselves - this would appear to be the situation of Mr KTT. The rules acknowledge that the initiative for the agency to appoint a nominee may come from a carer who offers to be the nominee. In deciding whom to appoint as nominee, the agency has regard to factors including: * the views of any guardian and a presumption that that person should be nominee, * the degree to which the proposed nominee knows and is in a relationship of trust with the participant, * the degree to which the proposed nominee is willing and able to fulfil the role, * the desirability of preserving family relationships. 21The NDIS Operational Guideline - Nominees - Overview says at paragraph 16: Most participants who need a nominee already have some kind of formal or informal arrangement in place to help them live their lives. NDIA officers should be sensitive to and respectful of these pre-existing support networks. There is no intention for the NDIS to override these support networks, the focus should be on strengthening and, where necessary, formalising the support networks of the participant. 22The NDIS Operational Guideline - Nominees - Whether a Nominee is Necessary says at paragraph 8: In some instances, the decision to appoint a nominee may be straightforward due to the participant having a pre-existing guardianship arrangement or a supportive carer who undertakes this role informally. 23A person directly affected by a decision to appoint a plan nominee may seek review of that decision by the NDIA, and if that does not resolve the matter, the person may seek a further review by the Administrative Appeals Tribunal. There is also a review right if a person is not happy with the participant's plan approved by the NDIA (Part 6, National Disability Insurance Scheme Act 2013 (Cth)). Decision 24Mrs LBU was very keen to be appointed guardian. The Tribunal was unable to obtain meaningful evidence from Mr KTT. 25Mr KTT's relationship with his mother is extremely important and if there was any ongoing issue in relation to their contact, this would have been very important in deciding whether a guardian should be appointed. However, issues around family contact are now working well between Mrs LBU and Service Provider A. 26Mrs LBU is clearly a strong and dedicated advocate for her son. 27After a rocky start, there is now a positive collaborative relationship between Mrs LBU and Service Provider A in relation to Mr KTT's accommodation and support. 28Mrs LBU had a negative first experience with the NDIA in late 2013 notwithstanding that she was her son's decision maker under the NDIS Act at the time - he was a child and Mrs LBU is parent. This was very early in the operation of the NDIS which commenced in trial sites in July 2013. 29Now that Mr KTT is an adult, the NDIA will need to consider appointing a nominee to act for him in relation to his participant's plan. Service Provider A supports Mrs LBU being given that role and there is no other apparent candidate. The Tribunal was cautious about pre-empting the NDIA processes by making a guardianship order so that Mrs LBU was all the more likely to be appointed nominee by the NDIA. In the event that the NDIA appoints a different person as nominee, a seemingly very unlikely prospect, Mrs LBU could seek a review of that decision by the NDIA and, if necessary, by the Administrative Appeals Tribunal. 30Assuming Mrs LBU becomes her son's plan nominee, it will be this role and not that of guardian that allows her to act on her son's behalf in dealings with the NDIA. If she was unhappy with a participant's plan approved by the NDIA, she could seek review of the plan. 31The Tribunal saw it as practicable for services to be provided to Mr KTT without the need for a guardianship order. In Mr KTT's context, the Tribunal saw this finding as very significant to whether to make an order. 32A guardianship order is inherently restrictive on Mr KTT's freedom and the Tribunal could not see any specific gain to him from this restriction. 33Weighing these factors, the Tribunal was not satisfied that it should make a guardianship order. 34The Tribunal can certainly understand Mrs LBU making her application in the circumstances that applied in December. However, in the current circumstances, the Tribunal was not satisfied that it should make a guardianship order. 35If circumstances change, Mrs LBU could consider making a further application to the Tribunal. ********** 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: 15 April 2014