Review of Guardianship Order for Person with Intellectual Disabilities

The NSW Civil and Administrative Tribunal reviewed a guardianship order for a person with intellectual disabilities and bipolar affective disorder, renewing the order with limited functions including access, accommodation, and services.

NSW Civil and Administrative Tribunal New South Wales Medium Neutral Citation: [NAME] [2020] NSWCATGD 70 Hearing dates: 16 April 2020 Date of orders: 16 April 2020 Decision date: 16 April 2020 Jurisdiction: [NAME]: J S Currie, Senior Member (Legal) Decision: REVIEW OF [NAME]

ORDER The [NAME] order for [NAME] made on 1 April 2019 has been reviewed. The order now is as follows: 1. [NAME] is appointed as [NAME].

2. This is a continuing [NAME] order for a period of 12 months from 17 April 2020.

3. This is a limited [NAME] order giving [NAME] custody of [NAME] to the extent necessary to carry out the functions below. FUNCTIONS: 4. [NAME] has the following functions: a) Access To decide what access [NAME] has to others and the conditions of access. b) Accommodation To decide where [NAME] may reside. c) Services To make decisions about services to be provided to [NAME]. CONDITION:

5. The condition of this order is the Standard Condition. In exercising this role [NAME] shall take all reasonable steps to bring [NAME] to an understanding of the issues and to obtain and consider his views before making significant decisions. [NAME] is joined as party. Catchwords: [NAME] – end of term review of [NAME] order – subject person lives in family home – need for decisions if moved to supported independent living –certain functions not included in reviewed order – order excludes functions which are being handled informally – [NAME] appointed INTERLOCUTORY – joinder of party – party has genuine concern for subject person – [NAME] joined Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), s 36 [NAME] Act 1987 (NSW), ss 4, 4(d), 14, 14(2), 17 Cases Cited: None cited. Texts Cited: None cited. Category: Principal judgment Parties: 008: Review of [NAME] Order

[NAME] (subject person) [NAME] (appointed [NAME]) CZG (carer) [NAME] (carer) [NAME] (joined party) Representation: Nil. File Number(s): NCAT 1993/00066928 Publication restriction: Decisions of the [NAME] of the Civil and Administrative Tribunal [NAME] been anonymised to remove any information that may identify any person involved in the Tribunal's proceedings: Civil and Administrative Tribunal Act 2013 (NSW), s 65.

REASONS FOR DECISION

REVIEW OF A [NAME] ORDER

Background 1. [NAME], who is also known as "[[NAME]]", is aged 49 years and has been diagnosed with an intellectual disability and bipolar affective disorder. 2. [NAME] lives with his mother, [NAME], and his sister, CZG, in the family home at Northwest Sydney. [NAME] has another sister, [NAME], who lives in regional New South Wales (NSW). She has reported that she is estranged from other family members.

3. The Tribunal and its predecessor the [NAME] Tribunal [NAME] made a number of [NAME] orders for [NAME] since July 1992. At the most recent hearing for [NAME], on 1 April 2019, a further [NAME] order was made for him. [NAME] was reappointed as his [NAME] for 12 months with the functions of access, accommodation (including the authority to engage others to assist in implementing those decisions, known as "the coercive accommodation authority"), health care, medical and dental consent and services.

4. The statutory end-of-term review of that [NAME] order was set down for hearing before me on 1 April 2020, but it had to be adjourned because of difficulties in contacting some of the parties.

5. The purpose of this hearing was to resume that review of [NAME]'s [NAME] order. I had to decide whether the existing order would be renewed, with or without variation, or revoked. I decided to renew and vary the order. I made a further continuing limited [NAME] order for [NAME] which [NAME] was reappointed as his [NAME] for 12 months with the functions of access, accommodation and services. These are my reasons for those decisions.

The hearing, parties, participants and statutory provisions 1. This hearing was held by telephone conference from the Tribunal's Sydney premises. Appendix A identifies the parties to the review and the participants in the hearing. [Appendix removed for publication.] Appendix B sets out the text of the principal statutory provisions which I [NAME] referred to in these Reasons.

Absence of [NAME]

1. The Tribunal seeks to hold its hearings in a way which promotes the participation of the person who is the subject of the application or review and we do our best to obtain the views of the subject person whenever possible. Where we are able to obtain the subject person's views we take them into consideration in exercising our functions [NAME] the [NAME] Act 1987 (NSW), in compliance with the principle laid down in s 4(d) of that Act. 2. [NAME] was not a participant in the telephone conference for the hearing. I noted that at previous hearings on 19 March 2018 and 8 October 2018, [NAME] had been excused from participation, because it was accepted by the Tribunal that because of his [NAME] he would be unable to comprehend the nature or purpose of the hearing or the issues which were before the Tribunal. There was no indication from [NAME]'s family members that there had been any change to his inability to comprehend these matters. There was no objection to this hearing proceeding in absence.

3. On that basis I excused him from further participation.

Procedural issue: Joinder application 1. [NAME] had applied to be joined as a party to this review. I noted that the Tribunal had joined her as a party to the review undertaken on 8 October 2018. There was no objection to [NAME] being joined. I was satisfied that [NAME] had a genuine concern for the subject person, her brother [NAME], and that it was otherwise appropriate for her to be joined as a party. I ordered accordingly.

Statutory issues 1. The issues for determination in any review of a [NAME] order are: 1. whether the subject person is someone for whom a further [NAME] order could be made, because he or she continues to [NAME] a disability which prevents them from being able to make important life decisions and whether he or she is "a person in need of a [NAME]" for the purposes of the [NAME] Act; 2. whether a further [NAME] order should be made; 3. if it should, the nature of the order which should be made. Specifically, who should be appointed as [NAME], the decision-making functions which should be granted to [NAME] and what the duration of the order should be.

The real issues for determination 1. [NAME] the "guiding principle" set out in s 36 of the Civil and Administrative Tribunal Act 2013 (NSW) the Tribunal, the parties to the proceedings and their legal representatives must facilitate the just, quick and cheap resolution of the real issues in the proceedings. As a result, the Tribunal in each case needs to take early steps to identify the real issues in the proceedings.

2. I considered the statutory issues by reference to the documentary material with which I had been provided. That comprised a copy of the Tribunal's previous orders and Reasons for Decision, a report ("[NAME]'s view") from [NAME], dated 24 March 2020 and a brief hearing report prepared for my attention by the Tribunal's case officer.

3. On the basis of my consideration of that documentation and my discussion with the participants, it was clear and was uncontested that: 1. [NAME]'s diagnosis as described at [1] above was unchanged.

2. He remains cognitively impaired to the extent that the he could not make some important life decisions and could not manage his person.

3. For those reasons [NAME] continues to be a person in need of a [NAME] for the purposes of the [NAME] Act. 4. [NAME] is someone for whom a further [NAME] order should be made. There was no objection to my reaching such a conclusion. In reaching a conclusion on the issue, I gave consideration to the factors set out in sub-s 14(2) of the [NAME] Act and was satisfied that a continuation of the order would preserve [NAME]'s existing family relationships and is necessary as the only practicable way in which the services which he needs could be made available to him. I was also satisfied that consideration of the matters outlined in s 4 of the [NAME] Act justified the continuation of the order and, as a paramount consideration, that [NAME]'s welfare and interests could best be preserved and protected by continuing the order. (For convenience of reference, ss 4 and 14 of the [NAME] Act are set out in full in Appendix B to these Reasons).

5. There is no private person who currently is willing to be appointed as [NAME] and who is able to be so appointed, by reference to the requirements in s 17 of the [NAME] Act (the text of which appears in Appendix B). I should note that [NAME]'s mother [NAME] appeared initially to indicate that she was capable of being [NAME], but, as a result of my explaining to her the distinction between a care provider and a [NAME], she did not press her request to be appointed. In order to be certain on this point, at the conclusion of the hearing I asked the participating family members whether any of them or anyone else they knew was willing to be considered for appointment. They responded the negative.

1. It follows that [NAME] should continue as [NAME] and I ordered accordingly.

2. I made findings corresponding with the conclusions at [14] and [15] above.

The real issues in these proceedings 1. It followed that there were only two issues in the proceedings which remained to be determined. They were 1. which decision-making functions [NAME] should [NAME]; and 2. the appropriate duration of the order and whether it should be reviewed on its expiration.

[NAME]'s decision-making functions

Access 1. [NAME] currently has the access function. [NAME]'s view report indicated that regular access arrangements had not, unfortunately been successfully implemented, but recommended that the function be continued as there were remaining issues concerning [NAME]'s access to others. [NAME] identified at the adjourned hearing on 1 April 2019 that there was a continuing need for her access to her brother [NAME] to be arranged by [NAME], due to her estrangement from other members of the family. Her view appeared to be supported [NAME]'s recommendation. There were no contrary views.

2. It is clear that the access function should be renewed.

Accommodation 1. It is evident from a review of the Tribunal's Reasons for Decision over the last three hearings that the issue of [NAME]'s accommodation has been a live one. There appear to [NAME] been efforts at various stages to identify some form of appropriate supported independent living ("SIL") accommodation for him.

2. It was clear from the views provided at the hearing by Mr Z, [NAME]'s National Disability Insurance Scheme (NDIS) Support Coordinator, a [NAME] from the Office of [NAME] and Ms Y, registered nurse from a Community Mental Health centre in Northwest Sydney, that although accommodation arrangements for [NAME] at the family home are currently reasonable and appropriate, it continues to be in his interest for SIL accommodation to be sought and assessed and remains possible that his [NAME] may need to make an accommodation decision: namely that he move to such accommodation.

3. I found those views reasonable and persuasive. Even if such a change of accommodation is not imminent, there remains a current need for [NAME] to be empowered to make it. It follows that the accommodation function should be renewed.

The Coercive Accommodation Authority 1. There was nothing before me to indicate that there was currently any real likelihood that [NAME] would seek to abscond or remain absent from the family home. It is too early to assess how he would settle in any proposed and agreed SIL accommodation. The [NAME] from [NAME] updated the view report and indicated to me that in the current circumstances the continuation of the coercive accommodation authority could not be justified. I found that view persuasive and there appeared to be no firm opposing views. I found that the coercive accommodation authority should not be renewed.

Health care and medical and dental consent 1. [NAME] recommended that these two functions should not be renewed. At the hearing the [NAME] submitted that in light of [NAME]'s ongoing supervision by the Community Mental Health centre and his continued consultations with Dr X, Consultant Psychiatrist, arranged through the centre, he was not being deprived of appropriate treatment and [NAME] accepted that [NAME]'s family would not stand in the way of the provision of appropriate health care and medical or dental treatment. The incident over recent months where [NAME] was discharged from hospital by hospital staff without further consultation with either [NAME] or the Support Coordinator was seen by [NAME] as unfortunate and not one which is likely to be repeated. The [NAME] was confident that if [NAME] is again hospitalised, his discharge will be arranged appropriately, with family consent and on the basis of consultations with his ongoing health care providers.

2. The [NAME] was also of the view that [NAME]'s medication was being appropriately handled and, to the extent necessary, supervised informally by family members and there appeared to be no clear need for the continuation of [NAME]'s authority to give substituted consent for medical or dental treatment, particularly as family members had demonstrated their due care and concern [NAME].

3. I found [NAME]'s submissions reliable and persuasive. I understood them to be consistent with the observations made Mr Z, the NDIS Support Coordinator and Ms Y, the Community Mental Health nurse. [NAME] expressed her continuing concern at the ability of the family to provide a settled structure, I did not understand her to object to the non-renewal of these functions. Even if I misunderstood [NAME]'s submissions in that regard and she did intend to express such an objection, I would [NAME] preferred the independent views of [NAME] supported by that of independent healthcare professionals.

4. It followed that the health care medical and dental consent functions should not be renewed.

Services 1. Mr Z confirmed the extent of the services presently being provided and indicated that at least one of the service providers had had some difficulties in being accepted by family members in the family home. I understood from his submission that the possible change of accommodation for [NAME] (to SIL accommodation) would justify the continuation of the services function as his services needs would change if that accommodation proposal was implemented. There appeared to be consensus amongst the family members that [NAME]'s ongoing well-being was dependent upon the continuation of appropriate services and there were clearly further services decisions to be made which in my view needed to be made by [NAME].

2. I was satisfied that this function should be renewed.

Conclusion: functions [NAME] the renewed order 1. It followed that: 1. there was no longer a need for the continuation of the health care and medical and dental consent functions or of the coercive accommodation authority, but 2. there remained a continuing need for the access, accommodation and services functions, in order to ensure [NAME]'s ongoing welfare and interests.

1.

Accordingly, [NAME] the order as renewed and varied [NAME] should [NAME] the functions of access, accommodation and services. I ordered accordingly.

Duration and reviewability of the order 1. Where the Tribunal decides to renew the [NAME] order it can make a further order in the ordinary case for a maximum of three years. However where it is satisfied that the subject person has permanent [NAME] and it is unlikely that he or she will become capable of managing their person the maximum duration is five years. 2. [NAME] was of the view that the order should be reviewed for 12 months. There was no objection from other participants to that proposal. I found that proposal attractive, on the basis that there would be an ongoing need for decisions on each of those matters and for appropriate arrangements to be made for his access to others, over the next 12 months or so, but potentially not in the long-term.

3. I could see no justification for making a non-reviewable order.

4. I ordered accordingly.

APPENDIX B - STATUTORY PROVISIONS

Civil and Administrative Tribunal Act, No 2, 2013 (NSW) 36 Guiding principle to be applied to practice and procedure (1) The "guiding principle" for this Act and the procedural rules, in their application to proceedings in the Tribunal, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. (2) The Tribunal must seek to give effect to the guiding principle when it: (a) exercises any power given to it by this Act or the procedural rules, or (b) interprets any provision of this Act or the procedural rules. (3) Each of the following persons is [NAME] a duty to co-operate with the Tribunal to give effect to the guiding principle and, for that purpose, to participate in the processes of the Tribunal and to comply with directions and orders of the Tribunal: (a) a party to proceedings in the Tribunal, (b) an [NAME] or other person who is representing a party in proceedings in the Tribunal. (4) In addition, the practice and procedure of the Tribunal should be implemented so as to facilitate the resolution of the issues between the parties in such a way that the cost to the parties and the Tribunal is proportionate to the importance and complexity of the subject-matter of the proceedings. (5) However, nothing in this section requires or permits the Tribunal to exercise any functions that are conferred or imposed on it [NAME] enabling legislation in a manner that is inconsistent with the objects or principles for which that legislation provides in relation to the exercise of those functions.

[NAME] Act 1987 (NSW) 4 General principles It is the duty of everyone exercising functions [NAME] this Act with respect to [NAME] 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. 14 Tribunal may make [NAME] orders (1) If, after conducting a hearing into any application made to it for a [NAME] order in respect of a person, the Tribunal is satisfied that the person is a person in need of a [NAME], it may make a [NAME] order in respect of the person. (2) In considering whether or not to make a [NAME] order in respect of a person, the Tribunal shall [NAME] 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. 17 Guardians (1) A person shall not be appointed as [NAME] of a [NAME] unless the Tribunal is satisfied that: (a) the personality of the proposed [NAME] is generally compatible with that of the [NAME], (b) there is no undue conflict between the interests (particularly, the financial interests) of the proposed [NAME] and those of the [NAME], and (c) the proposed [NAME] is both willing and able to exercise the functions conferred or imposed by the proposed [NAME] order. (2) Subsection (1) does not apply to the appointment of [NAME] as [NAME] of a [NAME]. (3) If, at the expiration of the period for which a temporary [NAME] order has effect, the Tribunal is satisfied: (a) that it is appropriate that a further [NAME] order should be made with respect to the [NAME], and (b) that there is no other person who it is satisfied is appropriate to be the person's [NAME], the Tribunal may, in accordance with this Division, make a continuing [NAME] order appointing [NAME] as [NAME] of the person. (4) [NAME] shall be appointed as [NAME] of a person the subject of a temporary [NAME] order.

********** 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: 11 October 2021