NSW Civil and Administrative Tribunal New South Wales Medium Neutral Citation: KWL [2018] NSWCATGD 23 Hearing dates: 20 July 2018 Date of orders: 20 July 2018 Decision date: 20 July 2018 Jurisdiction: Guardianship Division Before: A Britton, Principal Member S E Taylor, Senior Member (Professional) R M Fela, General Member (Community) Decision: 1. A guardianship order is made for KWL. 2. The Public Guardian is appointed as the guardian. 3. This is a temporary guardianship order for a period of 30 days from 20 July 2018. 4. This is a limited guardianship order giving the guardian(s) custody of KWL to the extent necessary to carry out the functions below. FUNCTIONS: 5. The guardian has the following functions: a) Accommodation To decide where KWL may reside. b) The guardian may authorise others including members of NSW Police and the Ambulance Service of NSW to: i) take KWL to a place approved by the guardian. ii) keep her at that place. iii) return her to that place should she leave it. c) Health care To decide what health care KWL may receive. d) Medical/Dental consent To make substitute decisions about proposed minor or major medical or dental treatment, where KWL is not capable of giving a valid consent. e) Services To make decisions about services to be provided to KWL. CONDITIONS: 6. The condition of this order is: a) Standard Condition In exercising this role the guardian shall take all reasonable steps to bring KWL to an understanding of the issues and to obtain and consider her views before making significant decisions. Today's hearing of the application for a financial management order is adjourned to a day to be confirmed by the registry. Catchwords: GUARDIANSHIP – application for a guardianship order – procedure – procedural fairness and natural justice – hearing rule – urgency of application – adequate notice of hearing – temporary guardianship order made – appointment of Public Guardian as guardian EVIDENCE – assessment of competing evidence – weight of evidence as to subject person's capacity WORDS AND PHRASES – social habilitation Legislation Cited: Guardianship Act 1987 (NSW), ss 3(1)–(2), 4, 14(1)–(2) Cases Cited: P v NSW Trustee and Guardian [2015] NSWSC 579 Texts Cited: Nil Category: Principal judgment Parties: 001: Guardianship Application Mrs KWL (the person) South Eastern Sydney Local Health District (applicant) Mr ECZ (carer) Ms W (enduring guardian) Public Guardian 002: Financial Management Application Mrs KWL (the person) South Eastern Sydney Local Health District (applicant) Ms W (attorney) Mr ECZ (carer) NSW Trustee and Guardian Representation: Nil File Number(s): NCAT 2018/00222080 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 1. Eighty-nine-year-old Mrs KWL self-discharged from a public hospital on 20 July 2018. Later that day we conducted a hearing to determine an application made by hospital social worker, Ms Z, to the NSW Civil and Administrative Tribunal (NCAT) seeking guardianship and financial management orders in respect of Mrs KWL. 2. Notwithstanding the limited notice the parties were given of the hearing, we decided to proceed to determine the Application because of the apparent risk of harm to Mrs KWL. We decided to make a temporary guardianship order. We adjourned the application for a financial management order because of insufficient time. Background to the application 1. On 29 June 2018, Mrs KWL was admitted to a public hospital presenting with a lacerated digital nerve apparently the result of a fall. Two days later Mrs KWL underwent surgery to repair the nerve. 2. At the time the Application was made, Mrs KWL and the hospital's treating team were in disagreement about whether Mrs KWL was fit to return home. Her doctors recommended that Mrs KWL remain in hospital for a further period to facilitate recovery. Against medical advice, and with the assistance of her son and carer, Mr ECZ, Mrs KWL self-discharged from hospital. Mrs KWL and her son live in regional NSW. 3. In the opinion of surgical registrar, Dr Y, as a consequence of Mrs KWL's decision to return home, there is a real risk of further damage to her hand. He stated that, in his opinion, Mrs KWL is unable to care for herself with a damaged hand and needs 24/7 care. Mrs KWL's decision-making capacity 1. A live issue in these proceedings was Mrs KWL's decision-making capacity. In the opinion of Dr Y and a number of Mrs KWL's daughters, Mrs KWL's decision-making capacity is impaired. Mrs KWL and her son disagree. 2. In support of the contention that Mrs KWL lacks decision-making capacity, the applicant relies on a number of medical reports. In a report dated 10 July 2018, junior medical officer Dr X wrote that the results of testing using the Montreal Cognitive Assessment (MoCA) revealed that Mrs KWL had severe deficits in delayed recall and executive functioning, (3/5) attention, (4/6); and language fluency, (0/1). Orientation was reasonable at 5/6. She wrote that Mrs KWL demonstrated poor insight into her current situation, was unable to retain information regarding her health, and was making poor decisions secondary to this. Under the heading "impression", she wrote: 1. Socially isolated elderly woman who lives at home with her son as carer. [Mr ECZ] is financially dependent upon [Mrs KWL] which influences [Mrs KWL]'s decision making. [Mrs KWL] believes a family rift (involving large amounts of money) has ruined her life: identifies she has placed her trust in the wrong people, as has her son. Now has a poorly formed and optimistic plan to sell her home and move back to Queensland although does not have a clear idea of the detailed finances this would involve. I have no concerns for mental illness. 2. Poor inconsistent historian: drinks four litres wine in two weeks. 3. I have identified significant cognitive impairment at 19/30 which is likely impacting her decision making. Although [Mrs KWL] has reasonable ideas about moving to Queensland and having some help at home she is unable to understand the complex finances regarding her pension, house, and the price of carers. 4. At present [Mrs KWL] does not have capacity for decision making re: discharge home with carers. She is unable to retain information regarding the benefits and risks. She is unable to use information provided in order to weigh up a decision. She is not consistently communicating a decision, and is intermittently accepting and refusing services 1. Mrs KWL's children participated in the hearing by phone. They had differing views about their mother's decision-making capacity, specifically whether she was now able to make decisions about her discharge from hospital and accommodation. 2. Mr ECZ stated that his mother had "not lost her marbles". He explained that her participation in the hearing was not representative of her cognitive ability because she was having difficulty in focussing because she was very angry. He stated that his mother was upset that the hospital had made an application for a guardianship order and had been encouraged to do so by her daughters. 3. One of Mrs KWL's daughters, Ms W, stated that she had been in regular contact with her mother until February 2018. In her view, her mother's decision-making capacity is now impaired. She said in recent months she has noticed a distinct change in her mother's behaviour. She described her mother's behaviour as uncharacteristic: "very irritated, very impatient". She agreed with the opinion expressed by Dr Y that her mother was unable to make significant decisions on her own behalf as illustrated by her decision to self-discharge against medical advice. 4. Another of Mrs KWL's daughter, Ms V, stated that she last saw her mother three weeks ago but has had limited contact with her as of late. She said that she noted that her mother was very slow and "fluctuated between competent and incompetent". When questioned about that term, she stated that her mother was "not incompetent" and was probably able to look after herself. Another daughter, Ms U, said she last saw her mother about a week ago. According to Ms U, at that time her mother was irrational and not behaving appropriately. She stated that as her mother has aged, her ability to make rational decisions has deteriorated. She agreed with the opinion expressed in these proceedings by Dr Y that her mother's decision-making capacity was impaired. Enduring guardian 1. On 25 January 2017, Mrs KWL appointed Ms W as her enduring guardian. In February 2018, Mrs KWL purported to revoke that appointment. According to Ms W, Mrs KWL later reinstated the appointment. Mrs KWL disputes that claim. Neither Mrs KWL nor Ms W produced any material to support their conflicting claims. View of the applicant 1. Ms Z stated that the available evidence indicates that Mrs KWL now needs significant care. She pointed to the hospital's clinical notes which reveal that during her admission, Mrs KWL had required assistance with toileting and showering. In her opinion, it would be difficult to obtain external supports for Mrs KWL at home in the short-term. She pointed out that there was a long waiting list for aged care in the area where Mrs KWL resided. Can a guardianship order be made? 1. The power to make a guardianship order can only be made if we are satisfied that Mrs KWL is a "person in need of a guardian": s 14(1) of the Guardianship Act 1987 (NSW) (the Act). 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 defined to include a person who is physically and/or psychologically disabled, and/or of advanced age, 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. 2. The term "social habilitation" is not defined by the Act. In P v NSW Trustee and Guardian [2015] NSWSC 579, Lindsay J considered its meaning in the context of s 3(2) of the Act, at [303]: The expression "social habilitation" (in the context of references to "disability", "restricted", "major life activities" and the word "requires") may be taken to refer to a need for services to help a person to be, or become, able to function normally in community with others. 1. The available medical evidence indicates that Mrs KWL probably has dementia. Because of that condition and advanced age she now requires significant support and care. She is now restricted in a number of major life activities including self-care and domestic tasks and requires significant services to live in the community. It follows that she is a "person with a disability" for the purpose of the Act. 2. As a consequence of her disability Mrs KWL is now at least partially incapable of managing her person. Mrs KWL, therefore, is a "person in need of a guardian" and the power to make a guardianship order can be exercised. Should a guardianship order be made? 1. In considering whether or not to make a guardianship order, we must take into account the matters listed in s 14(2) of the Act, relevantly the views of Mrs KWL, the views of her carer, the importance of preserving Mrs KWL's existing family relationships, the importance of preserving Mrs KWL's particular cultural and linguistic environments and the practicability of services being provided to Mrs KWL without the need for the making of a guardianship order. The views of Mrs KWL 1. As noted above, Mrs KWL is opposed to being made the subject of a guardianship order. She strongly rejects the proposition that she is unable to make rational and informed decisions on her own behalf. In these proceedings she stated that the opinions expressed by her daughters that she lacks decision-making capacity were motivated by malice. She states that she is "beautifully cared" for at home by her son and needs no further support apart from that which he provides. The views of Mr ECZ 1. In Mr ECZ's opinion there is no need for a guardianship order. 2. He stated that he acknowledged that Mrs KWL now needs a greater level of care than he had been providing to date. He gave as the reason for helping his mother return home against medical advice that it was her "clear wish". He agreed that his mother was frail but rejected the suggestion that it was unsafe for her to return home. When asked about his plans to care for his mother at home with an injured hand he stated they would take each day as it comes. He conceded that he had not applied for or made any enquiries about external support. However, he stated he was now open to the idea of obtaining additional support. He agreed that in recent months his mother had a number of falls at home but stated that she will be at risk of falling wherever she lives. The importance of preserving Mrs KWL's existing family relationships 1. There is significant disharmony within the family of Mrs KWL. The decision by Mr ECZ to assist his mother self-discharge was opposed by his sisters. Ms W and Ms U, in particular, are of the view that their brother is unable to provide an adequate level of care. They contend that their brother has a self-interest in their mother remaining at home as he lives there rent free and has no alternative accommodation. 2. In our view, the fractured relationships within the family of Mrs KWL are unlikely to be materially affected if a guardianship order is, or is not, made. The importance of preserving Mrs KWL's particular cultural and linguistic environments 1. On the available material, we think it unlikely that making or not making a guardianship order would materially affect Mrs KWL's cultural and linguistic environments. The practicalities of services being provided to Mrs KWL without the need for the making of such an order 1. Prior to her recent hospital admission, Mrs KWL had not been receiving any external care or support. It seems likely that, at least for the immediate future, if she is to remain living at home she will require significant external services in addition to those Mr ECZ has been providing. At least in the immediate future, it is unlikely that Mrs KWL will be able to make decisions about services and to implement those decisions. On the available material, it is difficult to say whether Mr ECZ is able and willing to arrange for any necessary services. It is telling that he apparently took no steps to explore whether additional care and support could be arranged prior to his mother's discharge from hospital. Findings and conclusions 1. In deciding whether to exercise the power to make, or not to make, a guardianship order we must take into account the factors listed in s 14(2) of the Act together with the statement of principles contained in s 4 of that Act. This requires us to balance a number of competing considerations. On the one hand, we must observe the principle that Mrs KWL must be protected from neglect, abuse, and exploitation. On the other hand, we must restrict her freedom of decision-making and action as little as possible and encourage her, as far as possible, to live a normal life in the community. At all times, the paramount consideration is Mrs KWL's welfare and interests. 2. This is not a case of a person who self-discharges from hospital against medical advice after turning their mind to the risks associated with that decision and assessing that risk. We agree with the opinion expressed by the hospital's treating team that, at this point in time, Mrs KWL lacks insight into the seriousness of her medical condition and her consequent care needs. 3. Dr Y is of the opinion that Mrs KWL's current presentation provides a reliable baseline on which to make an assessment about her decision-making capacity. While he may be correct, we note that Mrs KWL is in her late eighties and recovering from major surgery. Given the limited notice she was given of this hearing, the tribunal has not had the opportunity of hearing from her GP about his opinion about Mrs KWL's decision-making capacity. Because the GP has had the advantage of observing Mrs KWL over a long period, his opinion is likely to be significant. While we accept the weight of medical evidence that, at least in the immediate future, Mrs KWL appears to lack insight into the extent of her care needs, we are nonetheless reluctant to make a guardianship order of any significant duration until Mrs KWL is given the opportunity to obtain further material. 4. Mrs KWL's strong opposition weighs against making a guardianship order. A guardianship order will represent a significant restriction on her autonomy and ability to make decisions. 5. While the care and support Mr ECZ was providing to Mrs KWL prior to her admission to hospital is probably inadequate given her current care needs, he appears to now acknowledge that fact. 6. A complicating factor in this matter is the existence of the enduring guardian appointment. On the available evidence, it is not possible to determine whether as claimed by Ms W and disputed by Mrs KWL, it was reinstated or indeed whether the purported revocation in February 2018 was valid. However, the issue is moot given Ms W's apparent belief that she is powerless to make decisions in her role as enduring guardian in circumstances where her decisions are opposed by her mother and brother. 7. We have decided it is necessary and appropriate to make a guardianship order because of Mrs KWL's lack of insight into her current increased care needs, the weight of evidence that, at least in the short term, she is at risk of harm if she does not receive adequate care and the uncertainty surrounding whether services will be arranged without a guardianship order. We have decided it is neither practicable nor desirable to make a continuing guardianship order until such time as Mrs KWL further recovers from her hand injury, she is given the opportunity to obtain further material to support her contention that her decision making capacity is not impaired and, if a guardianship order is made, proper consideration can be given to the question of whom to appoint as guardian. We therefore make a temporary guardianship order. 8. As a consequence, the Public Guardian is automatically appointed guardian, for a period of 30 days. In the short term, decisions will need to be made about Mrs KWL's accommodation (with authority to authorise others), health care, medical and dental consents, and services. Therefore we give the Public Guardians these functions. ********** 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 Amendments 30 January 2019 - Cover sheet corrected. 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: 30 January 2019