NSW Civil and Administrative Tribunal New South Wales Medium Neutral Citation: MDM [2017] NSWCATGD 5 Hearing dates: 23 February 2017 Date of orders: 23 February 2017 Decision date: 23 February 2017 Jurisdiction: Guardianship Division Before: R Booby, Senior Member (Legal) M Staples, Senior Member (Professional) B Epstein-Frisch, General Member (Community) Decision: 1. A guardianship order is made for the unidentified female Ms MDM. 2. The Public Guardian is appointed as the guardian. 3. This is a temporary guardianship order for a period of 30 days from the date of this order. 4. This is a limited guardianship order giving the guardian custody of Ms MDM to the extent necessary to carry out Identity Assessment, Release of Identity, Health Care and Medical and Dental Consent functions. Catchwords: GUARDIANSHIP – application for a guardianship order – subject person found comatose – identity unknown – medical evidence required to identify – biological samples – fingerprint – DNA – withdrawal of medical treatment – withdrawal of medical treatment authorised under a health care function – 30 day temporary guardianship order made Legislation Cited: Guardianship Act 1987 (NSW), Part 5, ss 3(1), 3(2), 4, 14, 14(2), 17(4), 18(2) Cases Cited: FI v Public Guardian [2008] NSWADT 263 IF v IG [2004] NSWADTAP 3 Category: Principal judgment Parties: Ms MDM (subject person) Detective TNU (applicant) The NSW Public Guardian File Number(s): 65032 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 GUARDIANSHIP APPLICATION What the Tribunal decided 1. The Tribunal made a temporary guardianship order appointing the Public Guardian as Ms MDM's guardian for a period of 30 days to make decisions about her health care, medical and dental treatment, identity assessment, and release of identity information. Background 1. On 23 February 2017, the Tribunal received an application from Detective TNU of the NSW Police Service seeking the appointment of a guardian for a woman whose identity was not known, who was reported to be in a coma, and unable to communicate. Subsequent investigations have resulted in the person being identified as Ms MDM, who is aged 36 years. 2. A hearing of the application was convened as a matter of urgency. The hearing 1. At the end of these Reasons for Decision are lists of the parties to the application and the witnesses who attended the hearing. [Appendix removed for publication.] 2. The Tribunal notes that as Ms MDM's identity was not known at the time of the hearing, it was not possible to determine if there were persons who would be parties to the hearing due to their relationship with Ms MDM or status as her enduring guardian or carer. Does Detective TNU have standing to bring the application? 1. A person has standing to bring an application if she is: 1. the person who is the subject of the application; 2. the Public Guardian; or 3. any other person who, in the opinion of the Tribunal, has a genuine concern for the welfare of the person. 1. In his application, Detective TNU states that Ms MDM had been recovered from the water at east Sydney. Her identity was not known and she was in a critical condition. Police required consent to obtain biological samples that would assist to identify her. The Tribunal was satisfied that the application reflected a genuine concern for the welfare of Ms MDM and that Detective TNU has standing to make the application for a guardianship order. What did the Tribunal have to decide? 1. The questions which had to be decided by the Tribunal were: * Is Ms MDM someone for whom the Tribunal could make an order because she has a disability which prevents her from being able to make important life decisions? * Should the Tribunal make a guardianship order and if so, what order should be made? * Who should be the guardian? * How long should the order last? Is Ms MDM 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 Guardianship Act 1987 (NSW) (the Act) provides that the Tribunal may make a guardianship order for a person if it is satisfied that she is "a person in need of a guardian". A person in need of a guardian is "a person who because of a disability is totally or partially incapable of managing his or her person" (s 3(1) of the Act). A person with a disability is a person who is: 1. intellectually, physically, psychologically, or sensorily disabled; 2. of advanced age; 3. a mentally ill person within the meaning of the Mental Health Act 2007 (NSW); or 4. otherwise disabled; and by virtue of that fact is restricted in one or more major life activities to such an extent that he or she requires supervision or social habilitation (s 3(2) of the Act). 1. The Tribunal took evidence from Dr Z from the Intensive Care Unit at a public hospital. He said that two days previously, Ms MDM had almost drowned and had suffered a cardiac arrest. She had been comatose since admission. 2. Mr Michael Tyrrell, Principal Guardian, Office of the Public Guardian, said that the Public Guardian accepted that Ms MDM lacked the ability to make important decisions. 3. On the basis of the medical evidence the Tribunal is satisfied that Ms MDM has a disability which prevents her making important life decisions. She is therefore a person for whom the Tribunal could make a guardianship order. Should the Tribunal make a guardianship order and what order should be made? 1. The Tribunal must consider all of the following matters set out in s 14(2) of the Act before exercising its discretion to make a guardianship order: 1. the views (if any) of: 1. the person, and 2. the person's spouse, and 3. the person's carer and 1. the importance of preserving the person's existing family relationships, and 2. the importance of preserving the person's particular cultural and linguistic environments, and 3. the practicability of services being provided to the person without the need for the making of such an order. 1. These matters have no hierarchy or weighting and each is a mandatory consideration. However, the Tribunal must undertake a balancing exercise for its consideration of the matters in s 14(2). When undertaking this task the Tribunal may be guided by the principles that are set out in s 4 of the Act (see IF v IG [2004] NSWADTAP 3). 2. Dr Z said that Ms MDM's prognosis was poor, but, as her body had been very cold when she was rescued from the sea, more time was required to assess whether her condition was irreversible. He said that decisions were required on a day-to-day basis as to the best medical treatment and health care planning depending on any changes in her condition. 3. Dr Z said that there could be a decision required regarding the withdrawal of medical treatment and in his view this was a medical decision that would not need the consent of a guardian. However, Mr Michael Tyrrell expressed the view that such a decision is one for which consent should be sought from a guardian. 4. The issue of authorising a guardian to make a decision to withdraw treatment was considered in the matter of FI v Public Guardian [2008] NSWADT 263 (16 September 2008), in which District Court Judge Kevin O'Connor, (then) President of the Administrative Decisions Tribunal, considered the role of a guardian in making such decisions. In doing so, he considered the legal rights which competent persons enjoy to make decisions affecting their own health care, including in relation to end of life decisions and said: 45 … - Such a person has the right to refuse consent to any medical treatment, even if the treatment is objectively in the person's best interests, including if the treatment may be necessary to save or sustain that person's life; and - It is an unlawful trespass to touch a person for the purposes of providing medical treatment unless that person has provided consent to the treatment (or consent is otherwise implied by operation of law)… 46 In the case of unconscious or incompetent patients, the duties imposed on medical practitioners to provide treatment (including life-sustaining treatment) rest on consideration of what is in the patient's best interests for the purpose of preservation of life. But the law recognises that clinical judgments are involved, and that there is no need to continue treatments which are therapeutically ineffective, or are extraordinary, excessively burdensome, intrusive or futile. The law does not assume that a patient's best interests are served by extending the patient's life by whatever means are available and for as long as possible... 47 Accordingly, in my view, a specified function in a limited guardianship order should be interpreted in accordance with what is permitted by law or in equity in relation to the kind of conduct the subject of the specified function. The only difference between the rights enjoyed under the law as between an autonomous individual with capacity, and a guardian responsible for a person without capacity, is that the guardian must always act according to best interests considerations whereas the autonomous individual, in the exercise of free will, may make decisions which, objectively, appear to be against his or her best interests. 1. In respect of how the function should be carried out, His Honour states: 53 …provided such decisions are made consistently with the principles articulated in the leading cases. The fundamental consideration is what is in the best interests of the protected person in the circumstances. That judgment is informed by having regard to whatever is known about the likely wishes of the protected person in the situation, reasonable medical opinion as to what is appropriate, and the views of the family (using the term 'family' in a generous sense to include best friends and the like). 54 When plans are being formulated, it will be necessary to distinguish between elements that attract the operation of Part 5 and those which are governed by the general principles. I agree with the submission that if a medical practitioner proposes not to treat a patient (having formed a clinical judgment that it is not appropriate to provide certain treatment), then no occasion arises for the operation of Part 5. 1. The Tribunal is satisfied that the reasoning of His Honour Judge O'Connor establishes that a decision to withdraw treatment is not a decision that can be made under the medical treatment provisions set out in Part 5 of the Act and is a decision that can be authorised under a health care function provided to a guardian of a person who is not able to make such a decision him or herself. 2. The Tribunal was satisfied that it is necessary to authorise a guardian to make health care decisions for Ms MDM. 3. Dr Z also raised the possibility that consent could be sought for organ donation if Ms MDM dies. However, Mr Tyrrell expressed doubt that this is a decision that could be made by a guardian. The Tribunal is of the view that this matter is not one that should be considered pending establishing Ms MDM's identity and consulting her family members and is not a function that is appropriately allocated to a guardian under these circumstances. 4. On behalf of the Public Guardian, Mr Tyrrell expressed the view that there was a need for a guardian to make decisions about Ms MDM's medical treatment and her health care, including palliative care and the possible withdrawal of treatment. 5. On the basis of the evidence reviewed above, the Tribunal was satisfied that there is need for a guardian to make decisions about Ms MDM's medical treatment and also about her health care planning, which might include a decision about the withdrawal of treatment. 6. Detective TNU sought consent for the NSW Police Service to obtain biological samples that could assist in identifying Ms MDM and contacting her relatives. He said that the samples would include fingerprint information and DNA samples. He also sought consent to release any information thus obtained to assist in establishing the identity of Ms MDM. 7. Mr Tyrrell supported the application seeking the appointment of a guardian to make decisions about the taking and release of biological samples for the purposes of identifying Ms MDM. 8. The Tribunal was of the view that making the order sought would assist to identify Ms MDM and to locate family members. 9. Taking all of these matters into account, the Tribunal is satisfied that it is necessary and in the best interests of Ms MDM to appoint a guardian to make decisions about the taking of any specimens or samples such as, but not limited to, fingerprints and DNA for the purposes of identifying her and also to make decisions about the release of the samples and information obtained for the purposes of identifying her. 10. The Tribunal decided on the basis of all of this evidence that a guardianship order should be made allocating a guardian functions to enable decisions about Ms MDM's health care, medical and dental treatment, identity assessment, and release of identity information. 11. The Tribunal decided to make a temporary guardianship order as it is hoped that Ms MDM will be identified and her family members located. Identification of Ms MDM and her family members will assist to establish if there are other persons who are parties to any further consideration of guardianship. It will then also be appropriate to decide if a guardian should be appointed and if so, who that should be and what functions are required by the guardian. Who should be the guardian? 1. When it makes a temporary guardianship order, the Tribunal may only appoint the Public Guardian (s 17(4) of the Act). Accordingly, the Tribunal appointed the Public Guardian. How long should the order last? 1. A temporary guardianship order can be made for a maximum period of 30 days (s 18(2) of the Act). The Tribunal made the order for 30 days. ********** 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: 28 March 2017