NSW Civil and Administrative Tribunal New South Wales Medium Neutral Citation: NVP [2016] NSWCATGD 1 Hearing dates: 7 January 2016 Date of orders: 07 January 2016 Decision date: 07 January 2016 Jurisdiction: Guardianship Division Before: J Simpson, Senior Member (Legal) C Pratten, Senior Member (Professional) M Watson, General Member (Community) Decision: Application for guardianship order dismissed. Catchwords: GUARDIANSHIP – where subject person is a voluntary patient in a public hospital under the Mental Health Act 2007 (NSW) – where there is an enduring power of attorney in place from the ACT – whether the interstate instrument is sufficient for the purposes of s 7(1) of the Mental Health Act 2007 (NSW) – need for a guardianship order – where person responsible can give consent to medical treatment – application for guardianship dismissed Legislation Cited: Guardianship Act 1987 (NSW) Mental Health Act 2007 (NSW) Mental Health (Treatment and Care) Act 1994 (ACT) Powers of Attorney Act 2006 (ACT) Cases Cited: Nil Texts Cited: Nil Category: Principal judgment Parties: Mrs NVP (subject person) Miss QEP (applicant) Mr KAP (attorney and carer) The NSW Public Guardian Representation: Nil File Number(s): 61506 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 1. The Tribunal found that the enduring power of attorney made by Mrs NVP in the ACT was effective in NSW including for the guardian to consent to Mrs NVP being a voluntary patient under the Mental Health Act 2007 (NSW). The Tribunal dismissed the application for a guardianship order. Background 1. Mrs NVP is a 64-year-old woman with Huntington's disease who, at the time of the hearing, was a patient in a ward at a public hospital in West Sydney that is gazetted under the Mental Health Act. Mrs NVP has an extremely devoted and caring husband, Mr KAP, who was her carer at home until she went to hospital in the ACT in 2015. She is now in the specialist Huntington's unit at the public hospital in West Sydney and the hospital made an application for a guardianship order. The hospital was unsure whether the ACT power of attorney held by Mr KAP gave him authority to request his wife's admission as a voluntary patient under the Mental Health Act. The hospital also asked for a guardian to have coercive accommodation and medical care functions. What did the Tribunal have to decide? 1. The Tribunal had to decide: * Does Mrs NVP have a disability which prevents her from being able to make some important life decisions? * Should the Tribunal make a guardianship order and if so, what order should be made? Does Mrs NVP have a disability which prevents her from being able to make some important life decisions? 1. In view particularly of the report of Dr Z, neurologist and director of the Huntington's disease service, the Tribunal was clear that Mrs NVP has a cognitive impairment secondary to her Huntington's disease that prevents her from being able to make important life decisions. Should the Tribunal make a guardianship order? 1. Prior to the hearing, Mrs NVP was kept in the unit at the public hospital under successive schedules as a "mentally disordered person". However, she does not have a mental illness under the Mental Health Act and therefore any continuing admission requires her to be a voluntary patient. She lacks capacity to request to be a voluntary patient. 2. Section 7 (1) of the Mental Health Act says that a "person under guardianship" may be admitted as a voluntary patient if the guardian so requests. "Person under guardianship" is defined as "a person under guardianship within the meaning of the Guardianship Act". 3. In the Guardianship Act 1987 (NSW), "person under guardianship" "is defined as "a person who has a guardian within the meaning of this Act". This covers both where there is a guardianship order made by the Tribunal and where there is an appointment of enduring guardian that was made by the person (Section 3, Part 2, and Part 3). It also extends to where a person has appointed an enduring attorney in relation to personal and healthcare matters in the ACT, subject to any limitations on the powers of the enduring attorney under the law of the ACT (Guardianship Act section 6O and Guardianship Regulation 2010 (NSW) section 8). 4. In 2010, Mrs NVP signed an enduring power of attorney in the ACT appointing her husband Mr KAP to make decisions for her in relation to property, personal care and healthcare matters. 5. In section 11 of the Powers of Attorney Act 2006 (ACT), "personal care matter" is broadly defined in relation to decisions about the person's care and welfare including for example where the person lives. In section 12, "healthcare matter" is defined as any matter relating to the person's health care except for a "special healthcare matter". 6. In section 37, "special healthcare matter" is defined to include "treatment for mental illness". The relevant definition of "mental illness" is that in the Mental Health (Treatment and Care) Act 1994 (ACT) and is the same as in the NSW Mental Health Act. This definition does not include cognitive impairment secondary to Huntington's disease which is the very reason why Mrs NVP needs to be admitted as a voluntary patient rather than being eligible to be an involuntary patient under the NSW Mental Health Act. 7. In these circumstances, it is clear that under the ACT power of attorney, as recognised by the Guardianship Act, Mr KAP may make the necessary request for his wife to be admitted as a voluntary patient under the NSW Mental Health Act. This request is a personal care matter and/or a healthcare matter under the power of attorney. 8. Similarly, due to the power of attorney, Mr KAP is "person responsible" for his wife under Part 5 of the Guardianship Act and therefore the person that the public hospital in West Sydney needs to obtain consent from for medical treatments that Mrs NVP lacks capacity to herself consent to. 9. The ACT power of attorney does not allow Mr KAP to consent to Mrs NVP being detained against her will in a mental health facility in NSW. Nor can the Tribunal give a guardian this power since "A voluntary patient may discharge herself from or leave a mental health facility at any time" (Mental Health Act, section 8 (2)). However, in the hearing, Miss QEP, social worker, and Mr KAP told the Tribunal that Mrs NVP condition has improved significantly since she has been in the public hospital in West Sydney. Miss QEP said that, while the facility is locked, Mrs NVP is not attempting to leave it. Mrs NVP does say she wants to go home but staff address this by encouraging her to comply with treatment. 10. The ACT power of attorney would not give Mr KAP the power to override his wife's objections to medical treatment in NSW. Generally, the Tribunal does have the power to override objections to treatment and in some circumstances can empower a guardian to do so (Guardianship Act, Part 5). However, it is questionable whether the Tribunal could exercise these powers in relation to a voluntary patient in a mental health facility. Arguably, the Mental Health Act is designed to cover the field in relation to any coercive treatment of a patient in a mental health facility. The Tribunal did not need to squarely deal with this issue here since a registered nurse told the Tribunal that Mrs NVP is accepting recommended medication. Sometimes, Mrs NVP resists showering and dental care but there is no proposal to force these on her. 11. Mr KAP stressed very strongly what high-quality care he sees his wife as now receiving as compared with previous hospital care. 12. The Tribunal spoke quite briefly to Mrs NVP in the hearing. She was clearly upset but also spoke positively about the care that she is receiving in the hospital. 13. The Tribunal saw no need for a guardianship order. The ACT power of attorney allows Mr KAP to make decisions about his wife being a voluntary patient and about consent to medical treatment. At least in the current circumstances, a guardianship order would not have added to this situation. Concluding comments 1. The Tribunal was puzzled why the Huntington's unit is gazetted under the Mental Health Act. The cognitive impairment related to Huntington's disease is not a mental illness which means that a patient cannot be made an involuntary patient under the Mental Health Act. The Mental Health Act limits the powers that the Tribunal can give a guardian for a person in a gazetted unit. If the unit was not gazetted, if appropriate, the Tribunal would have clear authority to give a guardian coercive powers in relation to accommodation and medical treatment decisions. ********** 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: 16 May 2016