NSW Civil and Administrative Tribunal New South Wales Medium Neutral Citation: MQH [2018] NSWCATGD 11 Hearing dates: 8 March 2018 Date of orders: 08 March 2018 Decision date: 08 March 2018 Jurisdiction: Guardianship Division Before: J C Simpson, Senior Member (Legal) Dr H Creasey AM, Senior Member (Professional) F N Given, General Member (Community) Decision: The application for a guardianship order is dismissed after hearing. Catchwords: GUARDIANSHIP – application for guardianship order – National Disability Insurance Scheme – family member unwilling to sign service agreements – disability service provider applying for Public Guardian to be appointed to sign service agreements – need for an order – services able to be provided without order – application dismissed Legislation Cited: Guardianship Act 1987 (NSW), ss 4, 14(2) Cases Cited: IF v IG & Others [2004] NSWADTAP 3 Texts Cited: NDIS, Provider Toolkit Module 3: Terms of Business (30 March 2017) Office of the Public Advocate Victoria, Guide to NDIS Decision-making (January 2018) Category: Principal judgment Parties: 006: Guardianship Application Ms MQH (the person) Ms DZB (applicant) Public Guardian Representation: Nil File Number(s): NCAT 2004/00262880 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 1. Ms MQH is a 33-year-old woman with intellectual disability who lives in a group home run by disability service provider at Northwest Sydney. The disability service provider was keen for service agreements to be signed on behalf of Ms MQH but her father, Mr XAH, had not been willing to sign these agreements. Ms DZB, group home manager, applied for a guardianship order. 2. There have been a number of previous guardianship orders for Ms MQH, first appointing her brother, Mr BYH, and then appointing her father, Mr XAH. Guardianship lapsed in 2015. What we had to decide 1. We had to decide: 1. Does Ms MQH have a disability which prevents her from being able to make some important life decisions? 2. Should we make a guardianship order and if so, what order should we make? 1. When deciding whether to make a guardianship order, we needed to take account of all relevant factors, including those listed in s 14(2) of the Guardianship Act 1987 (NSW). These are about the views of Ms MQH and any spouse and unpaid carer, preserving family relationships, preserving cultural and linguistic environments, and the practicability of services being provided without a guardianship order. We could be guided by the principles in s 4 of the Guardianship Act which cover some of the same issues as s 14(2) of that Act but also emphasise minimum intrusion on a person's freedom, encouragement of self-reliance and a normal life in the community, protection from neglect, abuse and exploitation, and the person's interests being paramount. In the end, we had a broad discretion whether to make a guardianship order. (IF v IG & Others [2004] NSWADTAP 3) Decision 1. The Tribunal has made previous guardianship orders for Ms MQH on the basis of her intellectual disability. The applicant and Dr Z, general practitioner, now provided further evidence of Ms MQH's intellectual disability and difficulty with decision making. We were able to have only a very a basic conversation with Ms MQH in the hearing. We accepted that she has an intellectual disability preventing her from being able to make major life decisions. 2. Related to the introduction of the National Disability Insurance Scheme (NDIS), the disability service provider prepared two detailed agreements in relation to how it proposed to govern its relationship with Ms MQH. There was a shared living residency agreement in relation to the terms of Ms MQH's occupation of the group home and a service supports agreement in relation to the support services that the disability service provider provides to her. Ms DZB said that there were also service quotes that the disability service provider wanted signed for things like behaviour support and a mealtime assessment. Ms MQH has dysphagia. 3. Due to Ms MQH's intellectual disability, these agreements were prepared on the basis that Mr XAH would sign them as her representative. Mr XAH had declined to do so. Ms DZB said that this was due to provisions in the agreement about things for which Ms MQH would be financially responsible. 4. Mr XAH expressed concern that valuable furniture family had bought for Ms MQH had gone missing as had clothes and other items. To date, he has not been able to resolve these issues with the disability service provider. He also was concerned about his daughter being responsible for damage to property when she has an intellectual disability. 5. So as to resolve the issue of signing of agreements and quotes, the disability service provider was asking for the Public Guardian to be appointed. Mr XAH was not opposed to the Public Guardian becoming involved so as to have another organisation with responsibility for his daughter. 6. Mr XAH is looking after his daughter's finances and there was no issue raised about the handling of her money. 7. Kim Batten from the Public Guardian told us that the Public Guardian has a firm position of not signing service agreements. What the Public Guardian does is provide a consent to an organisation providing specified services that will be funded through an NDIS plan, including specifying that the services may be booked on the NDIS portal. 8. Ms Batten said that this approach has satisfied the National Disability Insurance Agency and service providers. The Public Guardian has had no experience of providers refusing to provide services in these circumstances. 9. Ms Batten also correctly pointed out that if a residency agreement was to be signed, that was an issue for a financial manager rather than a guardian. These agreements have financial obligations for the person with disability. 10. We noted the NDIS publication Provider Toolkit Module 3: Terms of Business. www.ndis.gov.au/medias/documents/h10/h41/8800431996958/Module-3-Terms-of-Business-30032017.pdf. The Terms of Business say that providers should work with participants to establish a written agreement but do not require participants to sign an agreement. 11. The Office of the Public Advocate Victoria has recently published a Guide to NDIS Decision-making. www.publicadvocate.vic.gov.au/media-releases/257-parliamentary-secretary-gabrielle-williams-launches-first-of-its-kind-guide-to-supported-decision-making-in-victoria. This says that the NDIA encourages participants and providers to enter into service agreements but that it is not a legislative or policy requirement that an agreement be signed. 12. Mr XAH said that he would be willing to provide the kind of consent that the Public Guardian provides to service providers. After consulting further at the disability service provider, Ms DZB said that it appeared that this approach would be adequate for the disability service provider. 13. In the hearing, Mr XAH showed a thoughtful and caring approach to his daughter's needs. Ms MQH related very warmly to her father. 14. Ultimately, no one was pressing us to make a guardianship order and we declined to do so. The key point was that services could adequately be provided to Ms MQH without an order. 15. Service agreements between people with intellectual disability and service providers raise a range of issues including capacity to understand and negotiate an agreement, who has authority to enter agreements on behalf of a person who lacks capacity and the practicability of using the guardianship and financial management system to provide a substitute decision-maker. We did not need to resolve these here but note a current consultation by the NSW Government on proposals for legislation to regulate the relationship between providers and residents of supported accommodation. 16. As discussed in the hearing, if Mr XAH needs advice in protecting his daughter's rights, he can contact the Private Guardians Support Unit at 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: 05 July 2018