NSW Civil and Administrative Tribunal New South Wales Medium Neutral Citation: QVC [2017] NSWCATGD 20 Hearing dates: 17 May 2017 Date of orders: 17 May 2017 Decision date: 17 May 2017 Jurisdiction: Guardianship Division Before: R Bailey, Senior Member (Legal) Decision: 1. The Tribunal decided that Calvary Health Care (Newcastle) Ltd has standing to make a guardianship application for a patient. Catchwords: INTERLOCUTORY – standing – does Calvary Health Care (Newcastle) Limited have standing to bring application –"affiliated health organisation" – consideration of s 9(1)(d) of the Guardianship Act 1987 (NSW) – "genuine concern for the welfare of the person" – consideration of s 21 of the Interpretation Act 1987 (NSW) – whether Calvary Health Care (Newcastle) Limited is a "person" Legislation Cited: Guardianship Act 1987, ss 9, 9(1)(d) Health Services Act 1997 (NSW), ss 13(3) 15(c), 62A, Sch 3 Interpretation Act 1987 (NSW), s 21 Cases Cited: EBI [2017] NSWCATGD 6 Minister for Disability Services v People With a Disability Inc (CSD) [2010] NSWADTAP 44 CJH v Department of Family and Community Services [2016] NSWCATAD 162 Texts Cited: Nil Category: Principal judgment Parties: Ms QVC (subject person) Calvary Health Care (Newcastle) Limited (applicant) The NSW Public Guardian Representation: Nil File Number(s): 65668 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 INTERLOCUTORY DECISION What the Tribunal decided 1. The Tribunal determined that Calvary Health Care (Newcastle) Limited (CHCN) has the necessary standing to apply for a guardianship order in relation to a patient. Background 1. Ms QVC is a 73-year-old woman, who is currently a patient at the Calvary Mater Hospital in Newcastle. She was previously admitted to two other public hospitals, due to a recent diagnosis of cervical cancer. Prior to her recent admissions, she lived alone in the family home in regional NSW, without the support of close family, friends or external service providers. 2. The Tribunal has been advised that Ms QVC has a longstanding diagnosis of schizophrenia. 3. On 3 May 2017, the Tribunal received an application for the appointment of a guardian from a social worker, on behalf of Calvary Health Care (Newcastle) Limited. 4. The Tribunal understands that Ms QVC does not object to the application. 5. Of its own motion, the Tribunal determined that an interlocutory hearing was required to determine the issue of whether CHCN has the necessary standing under s 9(1)(d) of the Guardianship Act 1987 (NSW) (the Act) to make an application for guardianship in relation to a patient. 6. The matter for determination is the issue of standing. 7. The Tribunal was assisted by written submissions tendered by Ms Penny Csederits, Senior Solicitor with the Crown Solicitor. 8. The Crown Solicitor noted that Ms QVC is currently a patient at Calvary Mater Newcastle. The original applicant is a social worker at that facility. 9. The Crown Solicitor submitted that Calvary Mater Newcastle is a public hospital pursuant to s 15(c) of the Health Services Act 1997 (NSW) (HS Act), and that it is a recognised establishment of "a declared affiliated health organisation", pursuant to s 62A of the HS Act, namely CHCN. 10. Section 9 of the Act provides that: 9 Applications (1) An application for a guardianship order in respect of a person may be made to the Tribunal: (a) by the person, (b) … (c) by the Public Guardian, or (d) by any person who, in the opinion of the Tribunal, has a genuine concern for the welfare of the person. … 1. Consequently, the Tribunal must determine whether CHCN is a "person" within the meaning of s 9(1)(d) of the Act and has a genuine concern for the "welfare" of Ms QVC. 2. The Crown Solicitor submitted that the term "person" is defined in s 21 of the Act's Interpretation Act 1987 (NSW) (AI Act) to include "an individual, a corporation and a body corporate or politic". The Crown Solicitor further submitted that there is nothing in the Act that indicates that the word "person" in s 9(1)(d) should take a meaning other than that provided for in the AI Act. 3. It was submitted that CHCN is a company incorporated under the laws of Australia and limited by guarantee. It is a declared "affiliated health organisation" for the purpose of s 62A of the HS Act, in respect of Calvary Mater Newcastle, and has been specifically listed in Sch 3 of the HS Act as an affiliated health organisation. The Tribunal is satisfied that this is the case. 4. The Crown Solicitor referred to a recent decision in the Guardianship Division, EBI [2017] NSWCATGD 6, where the Tribunal decided that St Vincent's Hospital Sydney Limited had necessary standing to request a review of guardianship order and make a financial management application in respect of a patient. 5. It was submitted that CHCN, as a corporation, is a person within the meaning of the Act just as the Tribunal determined St Vincent's Hospital Sydney Limited is a person. 6. The Tribunal agrees with the submission of the Crown Solicitor. The Tribunal accepts that CHCN is a corporation and is, therefore, a person, as defined in s 21 of the AI Act and s 9(1)(d) of the Act. 7. The second issue for the Tribunal to determine is whether CHCN has a genuine concern for the person who is the subject of an application before the Tribunal. In EBI, the Tribunal agreed with a decision in CJH v Department of Family and Community Services [2016] NSWCATAD 162, that the term "genuine concern" should be given its natural and ordinary meaning. 8. The Crown Solicitor submitted that a corporate body may have genuine concern. In Minister for Disability Services v People With a Disability Inc (CSD) [2010] NSWADTAP 44 at [79], it was determined that a number of factors can be considered to determine the genuineness of an organisation's genuine concern, including the aims of that organisation and the type of activities it undertakes in pursuit of those aims. 9. In EBI, the Tribunal found that the provision of direct relief of sickness, suffering and distress by operating health facilities to serve the people of New South Wales are the activities and objectives consistent with the meaning of genuine concern for the welfare of the person, as envisaged by the Act. 10. The Crown Solicitor submitted that affiliated health organisations, such as CHCN, are recognised by s 13(3) of the HS Act to enable non-profit religious charitable or other non-government organisations and institutions to be treated as part of the public health system where they "control hospitals, health institutions, health services or health support services that significantly contribute to the operation of that system". 11. The Crown Solicitor submitted that the Tribunal ought to consider CHCN in the same light as St Vincent's Hospital Sydney Limited was considered in EBI due to the parallel nature of their aims, objectives, and activities. 12. In support of that argument, it was submitted that the functions of CHCN are set out in its Constitution as well as in a Service Agreement between Hunter New England Local Health District and Calvary Mater Newcastle. The objectives of the Service Agreement include the following: To enable Calvary Mater Newcastle to contribute to Hunter New England Local Health Districts deliver (sic) of high quality, effective services, promote, protect and maintain the health of the community, and provide care and treatment to sick and injured people"… 1. The Constitution of CHCN contains an objects clause which includes, providing "high standards of care and support for the people served by the service". 2. The mission of the company is also expressed in the Constitution. It states (at clause[__]) "The mission of the company is: (a) We bring the healing ministry of Jesus to those who are sick, dying and in need through "being for others"… (b) Through the provision of quality, responsive and compassionate health and aged care services". 1. It was submitted that the aims and values expressed in the Constitution and the activities carried out by Calvary Mater Newcastle are consistent with a genuine concern for a patient. 2. The Tribunal accepted those submissions and finds that the purpose of the application indicates that CHCN has a genuine concern for the subject of the application. It follows that the Tribunal is satisfied that CHCN has standing to apply for the appointment of a guardian for the patient. 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.] ********** 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: 22 November 2017