Adjournment of Guardianship Review Case

The Tribunal adjourned the hearing to consider the applicability of a guardian's consent for a voluntary patient admission under the Mental Health Act, given the guardian's appropriate decision-making authority.

NSW Civil and Administrative Tribunal New South Wales Medium Neutral Citation: [NAME] [2018] NSWCATGD 35 Hearing dates: 4 December 2018 Date of orders: 04 December 2018 Decision date: 04 December 2018 Jurisdiction: Guardianship Division Before: [NAME], Senior Member (Legal) Decision: Today's hearing is adjourned to 21 February 2019 at 10:30AM. Catchwords: GUARDIANSHIP – requested review of guardianship order – operation and effect of [NAME] guardianship appointment – possibility of decisions being made by [NAME] – mental health – voluntary patient – relationship between Guardianship Act 1987 (NSW) and Mental Health Act 2007 (NSW) – ability of [NAME] to consent to voluntary admission Legislation Cited: Guardianship Act 1987 (NSW), Pts 3, 5, ss 4 Mental Health Act 2007 (NSW), ss 3, 4, 6, 6A, 6M, 7, 14(2)(d), 25(6), 61 Cases Cited: EBI [2017] NSWCATGD 6 NVP [2016] NSWCAT GD1 Texts Cited: Nil Category: Principal judgment Parties: 003: Requested Review of Guardianship Order

[NAME] (the person) [COMPANY] trading as [COMPANY] (applicant) [NAME] (appointed [NAME] and [NAME]) Representation: Nil File Number(s): NCAT 2018/00246151 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. [NAME] is 50 years old and at the time of the hearing she was a patient at the [COMPANY].

2. On 30 March 2011, [NAME] appointed her mother, [NAME], as her [NAME]. [NAME] accepted the appointment on the same day. The [NAME] guardianship appointment authorises the [NAME] to make decisions for [NAME] about where she lives, the health care she receives, the personal services she receives and to consent to carrying out of medical and dental treatment in accordance with Pt 5 of the Guardianship Act 1987 (NSW). The appointment includes some restrictions on the exercise of the functions in respect of measures aimed at prolonging or sustaining life under certain conditions.

3. On 21 August 2018, the Tribunal made a guardianship order appointing [NAME] as [NAME]'s [NAME] to make decisions for her about her accommodation, health care, medical and dental treatment and authorised the [NAME] to utilise the assistance of the Ambulance Services of NSW to take [NAME] to place of accommodation and to keep her at that place. The Tribunal ordered that the guardianship order would not be reviewed upon its expiry because the Tribunal was of the view that there would be no [NAME] for the order to be renewed because its specific purpose, being to make decisions about [NAME]'s admission to hospital, would have been fulfilled.

4. On 11 September 2018, [NAME] was admitted to [COMPANY] as a voluntary patient.

5. On 19 November 2018 the Tribunal received an application seeking a review of the order made on 21 August 2018. The application was submitted by [NAME], a social worker at [COMPANY], Auburn, on behalf of [COMPANY] (trading as [COMPANY]).

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 has previously decided that [COMPANY] has standing to bring applications to the Tribunal in respect of guardianship (EBI [2017] NSWCATGD 6).

What did the Tribunal have to decide? 1. On reviewing a current guardianship order the Tribunal may renew, renew and vary the order or determine that the order is to lapse.

2. The questions to be considered by the Tribunal are: * Is [NAME] someone for whom the Tribunal could make an order because she continues to have a disability which prevents her from being able to make important life decisions? * Should the Tribunal make a further guardianship order and if so, what order should be made? * Who should be the [NAME]? * How long should the order last?

The Adjournment 1. The Reasons for Decision of the Tribunal upon making the guardianship order on 21 August 2018 indicate that on that occasion the Tribunal took into account evidence provided by Ms Z, a clinical nurse consultant, that a guardianship order was sought because [NAME], who has Huntington's disease, was to be admitted as a voluntary patient to a gazetted hospital bed under the Mental Health Act 2007 (NSW) for observation and adjustment of her medication. [NAME] was considered unable to consent to the hospitalisation herself and the hospital would not accept the consent of [NAME] as [NAME]'s [NAME] as sufficient for the admission. [NAME] was not objecting to the admission.

2. In the application seeking review of the order, [NAME] states that there is a [NAME] to renew the guardianship order because the issues that resulted in the order being made on 21 August 2018 remain current.

3. During the hearing the personnel from the hospital expressed and remained of the view that [NAME] policy is that the consent of an [NAME] is insufficient as a basis for admission of a voluntary patient. I was not provided with a copy of that policy.

4. The Mental Health Act, includes the following provision that constitutes the reason for the application: 1. a person under guardianship may be admitted to a mental health facility as a voluntary patient if the [NAME] of the person makes a request to an authorised medical officer: s 7.

1. The Mental Health Act also includes the following provisions 1. "[NAME]", in relation to the exercise of any function under the Act by the [NAME] of a person under guardianship means a [NAME] who is able to exercise that function: s 4 of the Mental Health Act); and 2. "person under guardianship" means a person under guardianship within the meaning of the Guardianship Act, s 4).

1. The Guardianship Act includes the provisions to the following effect: 1. "[NAME]" means a person who is, whether under this Act or any other Act or law, a [NAME] of the person and includes an [NAME]: s 3; and 2. "person under guardianship means a person who has a [NAME] within the meaning of this Act: s 3; 3. "[NAME]" means a person who, because of a disability, is totally or partially incapable of managing his or her person: s 3; 4. a person may appoint an [NAME]: s 6; 5. the appointment of an [NAME] has effect only during a period in which the [NAME] is a [NAME]: s 6A; 6. a person appointed as an [NAME] may apply to the Tribunal for an order declaring that the appointment has effect and if the Tribunal is satisfied that the [NAME] is [NAME] and has appointed the applicant as an [NAME], the Tribunal can make an order declaring that the appointment of the [NAME] has effect: s 6M.

1. Part 3 of the Guardianship Act is headed "Guardianship Orders" and makes provision for the making and review of guardianship orders. The definitions section of that part provides that "in this part" (emphasis added) a "[NAME]" means a person appointed by a guardianship order as the [NAME] of a person and a "person under guardianship" means a person under a guardianship order: s 7 of the Guardianship Act.

2. Reading these provisions together, it is my view that the definitions set out in s 7 of the Guardianship Act apply only to Part 3 of that Act, and they are not relevant where an [NAME] seeks to make a decision authorised under an [NAME] guardianship appointment. 3. [NAME] is appointed as [NAME]'s [NAME]. It is my view that the legislation provides for the following: 1. where an [NAME] seeks to exercise guardianship functions, the definitions provided in s 3 of the Guardianship Act of the terms "[NAME]" and "person under guardianship" apply to those terms as used in the Mental Health Act. 2. applying those definitions, a person who has appointed an [NAME] and who is a [NAME] could be admitted as a voluntary patient if the [NAME] with the appropriate decision making functions, makes a request to an authorised medical officer. 3. on this basis, [NAME] could be admitted to a gazetted hospital bed on the request of [NAME].

1. This view seems to be in accordance with that expounded by the Tribunal in the matter of NVP [2016] NSWCAT GD1.

2. It is also my view that the Tribunal should not make a guardianship order where there is an [NAME] guardianship appointment in place unless that [NAME] guardianship appointment cannot meet the needs of the person under guardianship. I have formed this view for the following reasons:

1. The Guardianship Act requires the Tribunal to have regard to the practicability of services being provided to the person without the [NAME] for the making of such an order: s 14(2)(d);

2. Making a guardianship order suspends an [NAME] guardianship appointment: s 61 of the Guardianship Act.

3. The Tribunal is required to take into account the views of a person with a disability: s 4 of the Guardianship Act.

4. It is my view that a person's views can be reflected in the appointment of an [NAME].

1. I was not satisfied that the available evidence indicated the [NAME] to appoint a [NAME] to request [NAME]'s admission to a gazetted bed.

2. I proposed adjourning the hearing to provide the applicant with an opportunity to reconsider the application of the [NAME] policy regarding voluntary admission of patients by an [NAME] and if considered necessary, to make an alternative application. There were no objections to the proposed adjournment 3. For the reasons outlined above, and taking into account that there was no objection to the proposed adjournment, I adjourned the matter to 21 February 2019.

4. During the period of the adjournment the order made on 21 August 2018 remains in force because the review has been commenced, but not finalised: s 25(6) of the Guardianship Act.

********** 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 February 2019