Civil and Administrative Tribunal New South Wales Medium Neutral Citation: ZJN v Public Guardian (No 2) [2018] NSWCATAP 295 Hearing dates: 9 November 2018 Date of orders: 10 December 2018 Decision date: 10 December 2018 Jurisdiction: Appeal Panel Before: Hennessy LCM, Deputy President A Boxall, Senior Member Dr B McPhee, Senior Member Decision: The appeal is dismissed. Catchwords: GUARDIANSHIP – appeal – appeal on a question of law – new evidence – relevant considerations Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), s 80 Guardianship Act 1987 (NSW), s 14, s 25(2), s 25C Category: Principal judgment Parties: ZJN (Appellant) Public Guardian (First Respondent) ZJP (Second Respondent) Representation: Counsel: M Dudhee (Separate Representative for the Second Respondent) File Number(s): AP 18/35919 Publication restriction: Disclosure of the names of the appellant and the second respondent is prohibited. A reference to the name of a person includes a reference to any information, picture or any other material that identifies the person or is likely to lead to the identification of the person. Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Guardianship Division Citation: n/a Date of Decision: 7 June 2018 Before: J Kearney, Senior Member File Number(s): 2016/00393431 reasons for decision Introduction 1. ZJP is a woman in her late 20s who has lived at home all her life with her mother ZJN and her sister ZJO. Both ZJP and ZJO have an intellectual disability and schizophrenia. In 2015, ZJP's half-sister applied to the Tribunal for a Guardian to be appointed for ZJP. The Tribunal made a guardianship order for 12 months and appointed the Public Guardian to make various kinds of decision on ZJP's behalf (the first decision). At the end of the 12-month period, the Tribunal is required to review the order: Guardianship Act 1987 (NSW), s 25(2). When reviewing a guardianship order on expiry, the Tribunal has power to renew the order or let the order lapse: Guardianship Act 1987, s 25C. 2. The Tribunal reviewed the guardianship order on 7 June 2018 and renewed the guardianship order for 6 months (the second decision). ZJN has appealed to the Appeal Panel from the second decision. 3. At the first hearing, a consultant psychiatrist, Dr Wurth, provided an expert report. Dr Wurth was of the opinion that ZJP's medical care had not been adequately managed. One reason the Tribunal made the second decision to renew the guardianship order was the potential benefits the Tribunal thought a guardian could bring to ZJP's life. (See [41] of the second decision). Dr Wurth outlined some of those potential benefits. 4. Dr Iyer, another consultant psychiatrist who started seeing ZJP in 2017, did not share Dr Wurth's view, especially about the type and dosage of anti-psychotic medication that ZJP should be taking. He continued to be ZJP's treating psychiatrist throughout the first year of the guardianship order. When the time came for the Tribunal to review the guardianship order, the Public Guardian had not made any decisions about ZJP under the order and submitted that the order should lapse. The Tribunal was concerned that none of the issues Dr Wurth raised in his report had been adequately addressed by Dr Iyer and that there was potential for further benefits if the Public Guardian became more actively involved. 5. This decision outlines the reasons for the Tribunal's second decision, the grounds of appeal and the issues to be determined. Tribunal's decision 1. In the decision under appeal, the Tribunal quoted paragraphs [65]–[72] of the first decision. The Tribunal concluded at [66], of the first decision that there was a risk that in the absence of a guardianship order medical and social services would not be initiated or maintained. The Tribunal acknowledged that a guardianship order would be likely to "upset family relations considerably" but that, as young adults, it was time for them to have "a much greater involvement in the outside world". 2. At [67] of the first decision, the Tribunal expressed "particular concern" that Dr Wurth had formed the view that ZJP's "medical treatment has not been adequately managed in the past nor has she had adequate services". At [70] of the first decision, the Tribunal repeated that the "issues of most concern to the Tribunal were Dr Wurth's opinion that the medical needs have been inadequately managed in the past and the view of the Tribunal that ZJP needs to have access to a wide variety of opportunities that she has had in the past". 3. In the second decision, the Tribunal referred to a report from the Public Guardian dated 23 May 2018. The Public Guardian had made no decisions about health care or medical consents since being appointed. It was the Public Guardian's view that ZJP no longer needed a Guardian because she is accessing medical services and her mother is working through the National Disability Insurance Agency (NDIA) to look at extra supports. The Tribunal summarised the Public Guardian's actions over the previous 12 months as follows at [30]: 1. contact was made with Medical Centre where the GP practices but no response was received. There is no information regarding a follow-up. 2. Dr Iyer was contacted in November 2017 to discuss concerns raised in Dr Wurth's report. It is reported that Dr Iyer responded that "… he will continue to review ZJP's medication and trial using medications that may be more effective". From the limited information available from Dr Iyer, it appears he has seen her only once since then and has not trialled new medications. 3. Dr Iyer thought mental health support would be required but the psychologist had discontinued support for ZJP based upon her needing more specialised mental health support. There is no record of anything being done about this. 4. ZJN had not responded to enquiries regarding differing medications and the provision of mental health support but the Public Guardian does not record any steps taken to advance this issue. 1. The Tribunal went on at [31], to note that ZJN's responses to the Tribunal's questions regarding medical management were similar to those given in the hearing in first hearing in June 2017. She had rigidly adhered to the opinion of the current treating doctors "without any thought that that there could possibly be a different or better form of medical treatment available that might lead to a better outcome, or even that it might be worth asking". 2. The Tribunal's overall conclusion was that the Guardian had taken some steps since the first decision was made on 2 June 2017, but ZJP is in a similar position as she was in 12 months ago. The Tribunal found that there is a continuing role for a Guardian to question medical providers, to engage with service providers and to review accommodation options. Grounds of appeal 1. Appeals to the Appeal Panel can be made, as of right, on a question of law: Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), s 80(2)(b). On the basis of what ZJN wrote in the Notice of Appeal and what she said at the hearing, we understand that her grounds of appeal are: 1. NCAT decisions were made on "medical reports" choosing one psychiatrist's view over the other. The two psychiatrists had "opposing views" and they were in contradiction with each other. Incorrect medical statements (disproved) by other psychiatrist (Dr Iyer) regarding medication dosage. Decisions were influenced by wrong information from Dr Wurth. 2. The orders are placing extra stress on the family unit. 3. The Public Guardian asked to be dismissed at the review, this was ignored. 4. ZJP does not want the Public Guardian. 5. Incorrect reasons given by NCAT when making decisions would have "biased" their decision making. 6. A recent medical report from Dr Amir contradicts some claims made in the NCAT reasons given. 1. The separate representative for ZJP, Ms Dudhee, submitted that the Tribunal had made errors of law because: 1. more weight should have been given to the evidence of the treating psychiatrist, Dr Iyer; 2. it is not the role of the Tribunal to investigate the Public Guardian's activities and decisions after a guardianship order has been made; and 3. the Tribunal failed to have regard to "the practicability of services being provided to the person without the need for the making of such an order": Guardianship Act 1987 (NSW), s 14(2)(d). Issues 1. We must determine whether these grounds of appeal identify a question of law and, if so, whether the Tribunal made an error. We have summarised the issues as follows: 1. Should the Appeal Panel take into account parts of the transcript of the proceedings before the Tribunal? 2. Should the Appeal Panel take into account the following new evidence: 1. report from GP, Dr Mashhadi dated to August 2018; 2. report from consultant psychiatrist Dr B Iyer dated 25 October 2018; 1. Did the Tribunal fail to have regard to "the practicability of services being provided to the person without the need for the making of such an order"? 2. Did the Tribunal make an error of law by extending the order when ZJP did not want the Public Guardian? 3. Did the Tribunal make an error of law by giving insufficient weight to Dr Iyer's opinion? 4. Was the Tribunal's decision based on competing medical evidence? 5. Did the Tribunal make an error of law by investigating the Public Guardian's activities and decisions? 6. Did the Tribunal make an error of law by failing to take into account that the orders are placing extra stress on the family unit? 7. Did the Tribunal make an error of law by not accepting the Public Guardian's opinion that the order should lapse? 8. Was the Tribunal biased? Should the Appeal Panel take into account parts of the transcript of the proceedings before the Tribunal? 1. ZJN provided copies of tapes of the transcript of the hearing before the Tribunal. She also transcribed part of the proceedings. Some of the passages she highlighted were discussions between the presiding member and the representative from the Public Guardian as to the significance of various medical reports. 2. An appeal can be made from a decision of the Tribunal: NCAT Act, s 80(1). The decision was to appoint the Public Guardian for 6 months to exercise certain functions. The transcript does not contain the decision or the reasons for the decision. None of the grounds of appeal require the Appeal Panel to examine the transcript to decide whether the Tribunal made an error of law. In those circumstances, we have not taken into account the transcript of the proceedings. Should the Appeal Panel take into account the new evidence including the report from GP Dr Amir dated 2 August 2018? 1. We understand the reason ZJN wished us to take into account these reports was that they supported the previous evidence of Dr Iyer. 2. The Appeal Panel may decide to deal with an appeal by way of a new hearing if it considers that the grounds of appeal warrant a new hearing: NCAT Act, s 80(3)(a). If the Appeal Panel re-hears the matter, it may permit fresh evidence to be received: NCAT Act, s 80(3)(b). For the reasons which we give below, we have decided not to deal with the appeal by way of a new hearing. For that reason, we have not taken into account recent medical reports provided by ZJN. Did the Tribunal fail to have regard to "the practicability of services being provided to the person without the need for the making of such an order"? 1. When deciding whether to renew a guardianship order or let it lapse, the Tribunal must apply the same principles and take into account the same factors that it applied when making the guardianship order. The general principles are set out in s 4: It is the duty of everyone exercising functions under this Act with respect to persons who have disabilities to observe the following principles: (a) the welfare and interests of such persons should be given paramount consideration, (b) the freedom of decision and freedom of action of such persons should be restricted as little as possible, (c) such persons should be encouraged, as far as possible, to live a normal life in the community, (d) the views of such persons in relation to the exercise of those functions should be taken into consideration, (e) the importance of preserving the family relationships and the cultural and linguistic environments of such persons should be recognised, (f) such persons should be encouraged, as far as possible, to be self-reliant in matters relating to their personal, domestic and financial affairs, (g) such persons should be protected from neglect, abuse and exploitation, (h) the community should be encouraged to apply and promote these principles. 1. Section 14 of the Guardianship Act sets out the factors to which the Tribunal must have regard: 14 Tribunal may make guardianship orders (1) If, after conducting a hearing into any application made to it for a guardianship order in respect of a person, the Tribunal is satisfied that the person is a person in need of a guardian, it may make a guardianship order in respect of the person. (2) In considering whether or not to make a guardianship order in respect of a person, the Tribunal shall have regard to: (a) the views (if any) of: (i) the person, and (ii) the person's spouse, if any, if the relationship between the person and the spouse is close and continuing, and (iii) the person, if any, who has care of the person, (b) the importance of preserving the person's existing family relationships, (c) the importance of preserving the person's particular cultural and linguistic environments, and (d) the practicability of services being provided to the person without the need for the making of such an order. 1. There was no dispute that ZJP was "a person in need of a guardian" as that term is defined. The issue was whether the Tribunal should exercise its discretion to renew the order. The Tribunal summarised the services that were being provided to ZJP in the decision. While some services were being provided, including an annual visit to a psychiatrist, the Tribunal noted that respite and a day program had not yet commenced. The Tribunal also noted at [35] that it was unclear when further services might be provided or the detail of the available programs. For various reasons set out in the decision, the Tribunal was not satisfied that services, including medical services, were being or could be provided without an external independent decision maker. The Tribunal was hopeful that in six months things might change. 2. We are satisfied that the Tribunal considered the practicability of services being provided to ZJP without the need for the making of a guardianship order. Did the Tribunal make an error of law by extending the order when ZJP did not want the Public Guardian? 1. The Tribunal must also have regard to the views of the person when deciding whether to make a guardianship order: Guardianship Act, s 14(2)(a)(i). The Tribunal recorded ZJP's view that she does not want a guardian at [19]. The Tribunal stated that that view needs to be balanced with other evidence. The Tribunal also noted at [41] that ZJP opposed a further guardianship order, but was satisfied that, despite that view, it was in her interests to renew the order. We are satisfied that that the Tribunal took into account her views before making a decision. Did the Tribunal make an error of law by giving insufficient weight to Dr Iyer's opinion? 1. We will address this issue in conjunction with the assumption relied on by ZJN that the Tribunal's decision was based on competing expert evidence. Because Dr Wurth's report is central to the Tribunal's decision, we set out relevant passages below: Opinion There seems no doubt that she does suffer from chronic schizophrenia. She continues to exhibit severe disorder of the form of thought and delusional thinking. Her affect is incongruous and bland. She is on large doses of two antipsychotic medications in combination, yet remains actively unwell. I am unable to identify a paper trail that describes the clinical presentations over the years that would support the efficacy or appropriateness of current medication. I formed the suspicion that her mother would increase doses of medication in response to non-specific, perhaps behavioural problems not necessarily driven by psychosis. These problems may require treatment with other classes of psychotropic medications or non pharmacological management. She has treatment resistant schizophrenia and should be referred for treatment with clozapine. She has not had ongoing treatment from specialist mental health services since 2008. She has a moderate level of intellectual disability. There is no evidence for an additional diagnosis of autism spectrum disorder or Asperger's disorder. … In my opinion her medical care has not been adequately managed. I am concerned that she has not had a specialist mental health involvement since 2008, and that dose adjustments of her antipsychotic medications appear to have been made by her mother ZJN, and then continued by the GP, with insufficient information available in the GP record to justify these decisions on the grounds of continued symptoms of psychosis. I am concerned that more effective antipsychotic medication has not been tried and that there is no sign of any intention to do so by her current psychiatrist Dr Iyer. I am concerned that there has been a flurry of the provision of services, i. e. from Dr Iyer, the dietician and the psychologist, only because of the forthcoming proceedings before the NCAT. 1. Before the Tribunal at both the first and second hearings were short reports from ZJP's treating psychiatrist. Dr Iyer's report of the 13 November 2017, which related to both ZJP and ZJO, was apparently written in response to Dr Wurth's report: I saw the two sisters for the first time on 13 and March 2017 and reviewed on 31 May 2017… At the time I saw them initially they were already on the medication Abilify 30 mg twice a day and Zyprexa 40mg daily. … Despite being on the above medications there had been little change in their mental state. I had intended to review them again and if they are not responding to the above medications then I planned to switch to other psychotropic medications which may be more beneficial. Clozapine would not be an ideal treatment for them. There are other antipsychotic medications available which have not been tried on them which could be more effective than the current treatment. … In regard to the dosage of the current medications they did not seem to suffer from any side-effects it is not unusual to use the maximum dosage of the medications if there is no response and the patients don't experience any side-effects. 1. Dr Iyer's report of 30 May 2018 addressed to her GP, Dr Mashhadi, states that: I reviewed ZJP with her mother ZJN on 29 May 2018. Her mother reported that ZJP has gradually improved and was not causing any management problems. She was taking her medications regularly and had not experienced any side-effects. ZJP was less talkative today and was not openly expressing any delusional ideas. She said that she was happy with her mother's care. Her current medications are: Zyprexa 20 mg mane, 10 mg midday and Abilify 30 mg BD I suggested to her mother that they should attend your clinic and have routine blood tests. Which may need to be done on an annual basis because of the high dose of antipsychotic medication. 1. ZJN submitted that the Tribunal was mistaken to prefer the evidence of Dr Wurth to that of Dr Iyer. The Tribunal commented at [28] that Dr Iyer's report of 1 June 2108 only expresses concluded opinions and does not express the basis for those opinions. The Tribunal regarded the fact that ZJP was taking significant doses of the same medication with no explanation as a 'significant issue'. We accept that the Tribunal did not give as much weight to Dr Iyer's opinion as to the appropriate type and dosage of medication as it did to Dr Wurth's opinion. But the Tribunal provided a rational explanation for that preference. Dr Iyer's opinion did not "detail the reasoning or medical justification for treatment or evaluation of options". The Tribunal did not make an error of law by giving insufficient weight to Dr Iyer's opinion or by giving inadequate reasons for accepting Dr Wurth's opinion. Did the Tribunal make an error of law by investigating the Public Guardian's activities and decisions? 1. In the reasons for decision at [30], the Tribunal summarised the Public Guardian's actions over the previous 12 months. 2. The Tribunal concluded at [32] that "a Guardian is needed to question health care arrangements and the current treatment regime because for example, there is no clear justification for why ZJP is still on the same medication, yet the expert psychiatrist is consulted only annually, the GP is not engaged and mental health support (psychologist) has ceased without consideration to a replacement". 3. ZJP's representative submitted that the Tribunal had made an error of law by "investigating" the Public Guardian's activities and decisions. 4. The Tribunal has a discretion to renew a guardianship order or to allow the order to lapse. When exercising that discretion the Tribunal must apply the principles in s 4 and take into account the factors in s 14 as well as any other relevant factors. Those principles include that ZJP's "welfare and interests" are to be given "paramount consideration". The Tribunal was not satisfied with the steps that the Public Guardian had taken to promote ZJP's interests. One of the reasons the Tribunal decided to renew the order was to give the Public Guardian the opportunity to take steps which would be likely to promote her interests. The steps the Public Guardian had taken were a relevant consideration in the exercise of the Tribunal's discretion. We can detect no error of law. Did the Tribunal make an error of law by failing to take into account that the orders are placing extra stress on the family unit? 1. The Tribunal recorded at [22] that ZJN had told the Tribunal that ZJP had improved over the last year and that she attributed this to the removal of the stress of the first guardianship hearing. The Tribunal did not record that ZJN had told the Tribunal that the orders were placing extra stress on the family. We can detect no error of law. Did the Tribunal make an error of law by not accepting the Public Guardian's opinion that the order should lapse? 1. The Tribunal is not bound to accept the opinion of the Public Guardian. Was the Tribunal biased? 1. ZJN submitted that incorrect reasons given by the Tribunal when making decisions would have "biased" their decision making. We have not found that the Tribunal gave incorrect reasons. There is no basis for concluding that the Tribunal was biased. Orders 1. The appeal is dismissed. ********** 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: 10 December 2018