NSW Civil and Administrative Tribunal New South Wales Medium Neutral Citation: BLX [2014] NSWCATGD 36 Hearing dates: 1 October 2014 Decision date: 01 October 2014 Jurisdiction: Guardianship Division Before: Connor E, Senior Member (Legal) Hollis J, Senior Member (Professional) Davidson P, General Member (Community) Decision: Limited guardianship order made for a period of six months; Public Guardian appointed with functions of travel and passport, and access. Catchwords: GUARDIANSHIP - application for guardianship order - stroke and physical disabilities - non-english speaking background - partially unable to manage person or to make and implement decisions about travel and access - family conflict. Legislation Cited: Guardianship Act 1987 (NSW) Mental Health Act 2007 (NSW) Category: Principal judgment Parties: Mrs BLX (subject person) Ms BJC (applicant) Mr IWL (spouse) Mr KML (carer and son) The Public Guardian File Number(s): 57203 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 What the Tribunal decided 1The Tribunal appointed the Public Guardian as Mrs BLX's guardian for a period of six months to make decisions on her behalf about her travel and passport, and her access to others. Background 2Mrs BLX is a 69-year old Indonesian woman who at the time of the application being made was residing with her son and carer, Mr KML, in Sydney. It is reported that Mrs BLX had a stroke in April 2013 in Indonesia. 3Mrs BLX and her husband, Mr IWL, were both previously living with Mr KML in his flat in Sydney but a breakdown in the relationship between Mr KML and Mr IWL led to conflict regarding Mrs BLX's living arrangements, care and Mr IWL access to his wife. 4An urgent application for the appointment of a guardian for Mrs BLX was lodged with the Tribunal on 22 August 2014 by Ms BJC, Manager of Service Provider A. 5At a hearing on 4 September 2014 the Tribunal adjourned the hearing of the application for a period of approximately four weeks and made directions. The Hearing 6At the end of these Reasons for Decision are lists of the parties to the application and witnesses who attended the hearing. [Details removed for publication] 7An interpreter in the Indonesian language assisted during the hearing as required. 8The Tribunal stood the matter down for approximately twenty minutes at an early stage of the hearing to enable the professional reports received late to be read by the parties. Mrs BLX and Mr IWL were assisted by the interpreter who translated the reports for them. 9Before it makes a decision, the Tribunal must try to bring the parties to a settlement if this is possible and appropriate. Notwithstanding the considerable conflict between, Mrs BLX's husband, Mr IWL, and her son, Mr KML, the Tribunal was able to suggest an outcome which was acceptable to them both. What did the Tribunal have to decide? Guardianship Application Is Mrs BLX someone for whom the Tribunal could make an order because she has a disability which prevents her totally or partially from managing her person? 10Section 14 of the Guardianship Act 1987 (NSW) ('the Guardianship Act') provides that the Tribunal may make a guardianship order for a person if it is satisfied that he/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" (section 3(1), Guardianship Act). A person with a disability is a person who is: (a)intellectually, physically, psychologically or sensorily disabled; (b)of advanced age; (c)a mentally ill person within the meaning of the Mental Health Act 2007 (NSW); or (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 (section 3(2), Guardianship Act). 11The Tribunal noted the report provided by Dr Z, Clinical Neuropsychologist, who assessed Mrs BLX on 8 May 2014 and 15 September 2014. Dr Z writes that: '...[Mrs BLX] has difficulty making properly informed decisions and these difficulties are directly related to changes caused by her stroke. ...Fluctuations in [BLX's] attention and arousal levels have resulted in inconsistent behaviour and functioning and therefore caution is warranted when seeking her opinion and preferences. ...there appears to be a significant need for the Guardianship Tribunal to appoint a formal and independent guardian and financial manage (sic) to help [Mrs BLX] with complex decisions around legal, medical, living and financial issues.' 12The Tribunal was also assisted by the report dated 26 September 2014 provided by Dr Z, Physician at a rehabilitation centre. Dr Z writes that: 'Currently, due to the left dense hemiparesis [Mrs BLX] continues to require assistance with her self-care activities and mobility. This is currently being provided by her son, [Mr KML]. ... [Mrs BLX] has previously indicated to therapy staff as well as myself today that she is very stressed and upset and has contemplated suicide as she does not see any resolution to the current difficulties in regards to her living arrangements. She feels that she must choose between her husband and her son and it is causing her significant stress. ... In summary, [Mrs BLX] is making good gains with the Outpatient Rehabilitation Program but the psychosocial situation is causing her exceptional distress and impacting on her ability to participate in therapy. ... Given her premorbid background of being a health professional despite some mild cognitive impairment I do believe she would be able to understand basic information.' 13The Tribunal also noted the Report of Dr Y, Professor of Medicine (Neurology) dated 25 September 2014. Dr Y notes that: 'In regards to her cognition, with the help of her son who translated, I was able to determine that she was oriented in time, place and person, she could remember two of three unrelated words and her calculation ability with serial sevens rendered only one mistake. She could copy intersecting pentagons, carry out three step commands and write a sentence without difficulty. I therefore think that her cognition is not impaired and she understands the issues that have occurred and that are about to occur.' 14Mrs BLX attended the hearing in person and, with the assistance of the interpreter as required, told the Tribunal that: 'I can make decisions for my own self. This is the basic human right for me. I don't want a third party to take care of me. All the reports from the [rehabilitation centre] are not true. I don't want other people to determine my fate. I feel insulted if I am considered not capable of making decisions for myself. I was a GP for 40 years. A lot of these reports from [the rehabilitation centre] are not true. The neuropsychologist said lots of things that I didn't say. For example in relation to the Centrelink issue. All of that I understood. Normal people themselves couldn't remember the amounts of payments... each payment is different. I do know about everything. All the payments were for treatment and for buying medication.' 15Mrs BLX told the Tribunal in response to questioning that she does not have any problems with her memory or thinking as a result of the stroke. She stated that she needs continuous exercise to continue to improve her physical abilities but that 'otherwise I am ok'. Mrs BLX stated that she had been waiting a long time to see Dr Z and was hopeful that she would be able to provide treatment but that when she met Dr Z her stress increased and she 'felt really down' as Dr Z 'said it is hard for me to get better'. Mrs BLX said that she was of low mood as a result but that when she saw Dr Y 'he gave me much better hope for improvement'. She is also seeing a psychologist, Mr X. Mrs BLX does not believe that her low mood makes it difficult for her to make decisions for herself. 16Ms BJC, the applicant and Manager of Service Provider A at the rehabilitation centre, attended the hearing. She submitted that the conflict within the family impacts significantly on Mrs BLX who struggles to make decisions as a result. 17Mr KML told the Tribunal that his mother is able to make her own decisions and that although she has physical disabilities, she is getting stronger every day. 18Mr IWL stated that he thinks his wife is able to make decisions about what she wants. 19Ms W, a social worker at the rehabilitation centre, stated that Mrs BLX's social situation is complex and that as a result she appears to have difficulty making decisions for herself. Ms W noted that Mrs BLX has consistently expressed a strong desire to visit her terminally ill sister in Indonesia, but that she is unable to act upon this desire by herself. 20The Tribunal is satisfied that Mrs BLX has a disability which prevents her partially from managing her person. The evidence of the professionals is consistent with the views of Mrs BLX, her husband and her son, that Mrs BLX is able to understand basic information and make decisions for herself. The Tribunal, however, formed the view that while Mrs BLX is able to make decisions, she is not able to action her decisions because of her disabilities and the significant conflict between her son and her husband. She 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? 21The Tribunal spoke to Mrs BLX alone with the assistance of the interpreter for approximately twenty minutes immediately following a break in the proceedings during which the parties read the late documents submitted. 22Mrs BLX stated that her son does not agree that she should go to visit her sister in Indonesia because 'he loves me so much and he wants me to continue to get treatment. He has got appointments with lots of top doctors for me and it has helped me to improve.' 23Mrs BLX stated that she has been told that her sister only has one month to live and that 'only my husband can assist me' to visit her. When asked if she would like assistance to facilitate such a visit, Mrs BLX responded that: 'I wouldn't like somebody else. My husband will help me. My son doesn't agree. I will come back after the burial and continue my therapy. Each night I dream about my oldest sister. It involves the Embassy. They may prevent me leaving Indonesia if I go there. My son is concerned. 24When asked about her status in Australia, Mrs BLX responded that she is a permanent resident. She was very clear that she wishes to go to visit her sister but then wants to return to Australia to live with her son and continue her therapy. 25The Tribunal also asked Mrs BLX about the reported difficulties she has communicating with her husband. She told the Tribunal that her mobile phone had fallen out of her pocket and she trod on it and broke it which made it difficult for her to contact her husband. Mrs BLX later stated that she has a mobile phone but it is not active. If it had credit, she would like to speak to her husband. 26Mrs BLX told the Tribunal that she wrote a letter threatening suicide because 'I wanted to be taken seriously'. She stated clearly that she wants to be able to see her husband on a regular basis. 27In relation to her accommodation, Mrs BLX stated that she resides with her son in a two bedroom unit. She told the Tribunal that she sometimes shares a bed with her son because she is fearful of falling if she needs to go to the toilet during the night. She does not want 'outside people' to come in to assist her with activities such as showering, commenting that she was very embarrassed when a service provider brought in a young male interpreter who watched while she was showering. She has been offered a stick to assist her to walk but stated that 'it made my walking worse. I believe that I can get to the point where I can walk around by myself.' 28Mrs BLX reiterated that 'I want my family to arrange things. I would rather die. I don't want a third party to take care of me.' 29The Tribunal asked the parties and other participants to re-join the hearing and provided a summary of Mrs BLX's evidence as recounted above. 30The Tribunal invited Ms BJC, the applicant, to outline why she believes there is a need for a guardian to be appointed for Mrs BLX. 31Ms BJC told the Tribunal that the note in which Mrs BLX expresses a desire to commit suicide was of great concern to the treating team at the rehabilitation centre. She gave evidence that Mrs BLX has consistently expressed a desire to see her husband and to visit her sister but that neither of these wishes has been met. Ms BJC stated that they consider Mrs BLX to be vulnerable. 32Ms W added that Mrs BLX has only been able to see her husband when access has been arranged by the rehabilitation centre. Making such arrangements is not something that the rehabilitation centre is able to continue to do on an ongoing basis. 33Mr KML gave evidence that he has concerns about his mother travelling Indonesia to visit her sister as he is fearful that she may not return to Australia. He stated that his mother's passport was previously taken by her husband and expressed concern that he (Mr KML) may have been 'blacklisted' and be unable to enter Indonesia. 34A representative from the Indonesia Consulate in Sydney attended the hearing. He gave evidence that there is no 'blacklist' in Indonesia and that if Mr KML applies for, and is granted, a visa there is no apparent reason why he would be unable to enter Indonesia. He stated that the current airport 'watch lists' are an initiative of the Australian government. 35Mr KML stated that he is not named on any such 'watch list'. Mr KML raised concerns about when his mother had been first advised about her sister's serious illness by her husband, asserting that Mr IWL withheld the information from her and that he first knew about it in May 2014. He reiterated his concerns that his mother may not return to Australia if she is taken to Indonesia by her husband. 36Mr IWL stated that it is untrue that he withheld his wife's passport, explaining that when his wife was admitted to hospital he was given a bag containing her clothing and her passport, which he returned to his wife when requested to do so. Ms BJC confirmed that Mrs BLX's passport was returned to her by her husband without delay when he was requested to do so. Mr IWL disputed knowing about his sister-in-law's illness in May 2014, asserting that he first knew about it in August 2014 and that he told his wife about the seriousness of her sister's illness at the first hearing of the Tribunal in September 2014. He stated that he wants to accompany his wife to visit her sister in Indonesia as soon as possible. 37A representative from the Office of the Public Guardian was present during the hearing. She confirmed that, if appointed as guardian for Mrs BLX, the Public Guardian will consult with all parties and weigh up the potential risks and benefits of Mrs BLX travelling to Indonesia to visit her sister if they are appointed. 38The Tribunal determined that there is a need for a guardian to be appointed to make decisions about Mrs BLX's travel, the control of her passport and her access to others. The Tribunal considered Mrs BLX's stated objection to the appointment of any third party to 'take care' of her, and was not entirely convinced that Mrs BLX fully comprehended the concept of guardianship in Australia and the very limited nature of the guardianship order that was being proposed. The Tribunal was ultimately satisfied that it is in Mrs BLX's best interest for a guardian to be appointed with very limited functions such that her expressed wishes are able to be converted into action. 39While it was clear to the Tribunal that both Mr KML and Mr IWL are both very concerned about Mrs BLX's welfare, they are unable to work together to facilitate her decisions being actioned. It was encouraging that during the hearing Mr KML ultimately acknowledged that it may be a good idea for an independent guardian to be appointed to make decisions about whether or not his mother should travel to Indonesia to visit her sister, and to make arrangements for his mother to see her husband without his needing to be involved. 40Mrs BLX has clearly and consistently expressed a desire to travel to Indonesia to visit her terminally ill sister, but she has been prevented from doing so because of the significant conflict between her husband and her son and she is not able to make arrangements to do so without assistance. There is an urgent decision to be made as to whether or not it is in Mrs BLX's best interest for her to undertake such a trip. 41Mrs BLX has also consistently expressed to the treating team at the rehabilitation centre a desire to be able to see her husband. She repeated this desire at the Tribunal hearing. There was evidence that to date Mrs BLX has only been able to meet with her husband when arrangements have been made by the staff at the rehabilitation centre and that it is not the function of staff to be involved in such planning on an ongoing basis. Who should be the Guardian? 42The Tribunal is not able to appoint the Public Guardian as a person's guardian if there is a private person who can be appointed. 43Given the serious conflict between Mrs BLX's son and husband, the Tribunal determined that it was in her best interest for the Public Guardian to be appointed as guardian for Mrs BLX. How long should the order last? 44An initial guardianship order can be made for a period of up to one year from the date on which it was made. The Tribunal decided to make an order for six months as recommended by the representative from the Office of the Public Guardian. ********** 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: 12 December 2014