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| | Guardianship Division Case Digest Issue 1 of 2021
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| The Guardianship Division Case Digest provides a summary of relevant and interesting case law of significance to the work of NCAT's Guardianship Division.
This issue feature case summaries of decisions from the Guardianship Division, NCAT Appeal Panel, and Supreme Court of New South Wales. |
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| NCAT Guardianship Division |
| EFC [2020] NSWCATGD 27
M D Schyvens, Deputy President; Dr G Jamieson, Senior Member
Facts EFC is an elderly man in Byron Bay, being accommodated at Byron Bay Central Hospital at the time of the hearing. He was, at the time, subject to a guardianship order which appointed the Public Guardian as his guardian. Aged 76, EFC had Alzheimer’s dementia, and was exhibiting a number of symptoms from that diagnosis and its associated standard treatments, including increased agitation, loss of appetite, and insomnia. The subject person’s daughter, QFC, cared for him and had sought Dr H’s assistance with the subject person’s treatment, leading to the present application being made. The application was brought by the Public Guardian, seeking the Tribunal’s consent to special medical treatment. The proposed treatment was the medicine, “Spectrum Blue” – a hybrid cannabinoid medicine containing Cannabidiol (CBD) and Tetrahydrocannabinol (THC).
Issues
How should the treatment proposed be characterised under the Guardianship Act 1987 (NSW)?
Should the Tribunal give consent to the treatment proposed?
Legislation and case law considered
Guardianship Act 1987 (NSW) ('the Act')
Section 33 - Definitions
(1) …
Medical or dental treatment or treatment means:
(a) medical treatment (including any medical or surgical procedure, operation or examination and any prophylactic, palliative or rehabilitative care) normally carried out by or under the supervision of a medical practitioner, or
…
(c) any other act declared by the regulations to be treatment for the purposes of this Part
…
Special treatment means:
(a) any treatment that is intended, or is reasonably likely, to have the effect of rendering permanently infertile the person on whom it is carried out, or
(b) any new treatment that has not yet gained the support of a substantial number of medical practitioners or dentists specialising in the area of practice concerned, or
(c) any other kind of treatment declared by the regulations to be special treatment for the purposes of this Part,
but does not include treatment in the course of a clinical trial.
Section 44 - Tribunal may give consent
(1) If, after conducting a hearing into an application for consent to the carrying out of medical or dental treatment on a patient to whom this Part applies, the Tribunal is satisfied that it is appropriate for the treatment to be carried out, it may consent to the carrying out of the treatment.
(2) In considering such an application, the Tribunal shall have regard to:
(a) the views (if any) of:
(i) the patient,
(ii) the person who is proposing that medical or dental treatment be carried out on the patient,
(iii) any persons responsible for the patient, and
…
(b) the matters referred to in section 42 (2), and
(c) the objects of this Part.
…
Section 45 - Restrictions on Tribunal’s power to give consent
(1) The Tribunal must not give consent to the carrying out of medical or dental treatment on a patient to whom this Part applies unless the Tribunal is satisfied that the treatment is the most appropriate form of treatment for promoting and maintaining the patient’s health and well-being.
(2) However, the Tribunal must not give consent to the carrying out of special treatment unless it is satisfied that the treatment is necessary:
(a) to save the patient’s life, or
(b) to prevent serious damage to the patient’s health,
or unless the Tribunal is authorised to give that consent under subsection (3).
(3) In the case of:
(a) special treatment of a kind specified in paragraph (b) of the definition of that expression in section 33 (1), or
(b) prescribed special treatment (other than special treatment of a kind specified in paragraph (a) of that definition),
the Tribunal may give consent to the carrying out of the treatment if it is satisfied that:
(c) the treatment is the only or most appropriate way of treating the patient and is manifestly in the best interests of the patient, and
(d) in so far as the National Health and Medical Research Council has prescribed guidelines that are relevant to the carrying out of that treatment—those guidelines have been or will be complied with as regards the patient.
Guardianship Regulation 2016 (NSW) ('the Regulation')
Section 9 - Special Medical Treatment
For the purposes of paragraph (c) of the definition of special treatment in section 33 (1) of the Act, the following medical treatment is declared to be special treatment:
(a) any treatment that is carried out for the purpose of terminating pregnancy,
(b) any treatment in the nature of a vasectomy or tubal occlusion,
(c) any treatment that involves the use of an aversive stimulus, whether mechanical, chemical, physical or otherwise.
…
Section 14 - Experimental special medical treatment to which Tribunal may consent
For the purposes of section 45 (3) (b) of the Act, the following medical treatment is prescribed special treatment:
(a) any treatment that involves the administration to a patient of 1 or more restricted substances for the purpose of affecting the central nervous system of the patient, but only if the dosage levels, combinations or numbers of restricted substances used, or the duration of the treatment, are outside the accepted mode of treatment for such a patient,
(b) any treatment that involves the use of androgen reducing medication for the purpose of behavioural control.
Analysis
Characterisation
The Tribunal narrowed the issue of characterising the nature of the treatment to whether the treatment could be described as “new” special treatment, or “experimental” special treatment, pursuant to paragraphs (b) and (c) of s 33(1) of the Act, respectively: [15].
Dr Z submitted that the treatment was “new” treatment, as that definition best fit the use of medicinal cannabis in Australia, because only a small number of practitioners were known to prescribe and support the prescription of those medicines. On the other hand, the definition of “experimental” special treatment was not fitting, because the proposed medicine and dosage was not outside the accepted mode of treatment for that medicine elsewhere: [18].
The Tribunal accepted Dr Z’s submissions and evidence on this point, acknowledging that the treatment proposed was not registered on the TGA Registry, and was not otherwise considered a medicine with an established history of use in NSW, or supported by a substantial number of practitioners – it was therefore “new” special treatment: [22].
Should the Tribunal consent?
The Tribunal said the question of the treatment’s appropriateness was to be examined in two contexts under the Act, and noted there was significant overlap between them ([24], [28]):
1) A narrower context of the proposed treatment as “new treatment” (see ss 45(3)(a),(c)-(d) of the Act); and
2) A broader context of the proposed treatment in terms of the views of relevant parties, appropriateness of alternative treatments, and the objects of Pt 5 of the Act (see ss 44(1)-(2) of the Act).
In broad terms, the Tribunal said the Act required it to be satisfied that ([29]):
1) The treatment for EFC was the only or most appropriate treatment, taking into account viable clinical alternatives and risk/benefit considerations, as well as the views of relevant parties; and
2) It was manifestly in EFC’s best interests that this treatment is carried out.
The Tribunal decided that the treatment satisfied these criteria – that it was appropriate and manifestly in EFC’s best interests, because:
1) As an incurable disease, where standard treatments fail, it was not more appropriate to continue treating dementia symptoms with those standard treatments where an alternative treatment with low-risk profile offered some chance of improving the patient’s quality of life ([42]-[43]);
2) Although Mr X (the pharmacist overseeing EFC’s medications in hospital) expressed a view that Spectrum Blue may not be the “panacea” the Applicant hoped for, the Tribunal acknowledged that this was entirely accepted by Dr Z, and Mr X had otherwise offered no clinical reason why the Tribunal should not consent to its use ([38]-[39], [45]-[46]);
3) Dr Z provided peer-reviewed articles in support of the safety of the treatment, and told the Tribunal that although there was very little if any data in support of its efficacy, his experience in prescribing the treatment for over 15 years meant he had a wealth of experience and anecdotal evidence in support of the treatment offering some benefit in the circumstances ([35]-[37], [44]).
The Tribunal accepted Dr Z’s view that if “most appropriate” treatment was framed in terms of improving EFC’s quality of life, whilst minimising risk in the absence of any other standard treatments being effective, then the Treatment proposed met that criteria [47]-[49].
In terms of the “best interests” question, the Tribunal found that it was manifestly in EFC’s best interests that he be given access to treatment which is on all the available evidence, low-risk, and may offer him some benefit where other standard treatments have failed ([49]).
EFC’s daughter, QFC, said she wished for her father to receive any treatment Dr Z felt might be beneficial for him ([41]).
Conclusion
The Tribunal consented to the treatment, and authorised the Public Guardian to continue to consent to the treatment for a period of 12 months.
Read the decision on the NSW Caselaw website.
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| SZH [2020] NSWCATGD 28
C Fougere, Principal Member; Dr G Jamieson, Senior Member; Prof P Foreman, General Member
Facts This matter was the first of two decisions (the other being JFL [2020] NSWCATGD 28) which involved the use of a keypad lock system at the exit of an aged care facility.
SZH was a 65 year old man living in an aged care facility, who required high-level care due to the effects of alcohol related brain injury (ARBI) and dementia resulting in severe cognitive impairment. SZH had no family involved with this life. The Public Guardian was appointed as SZH’s guardian until the order ended on 21 April 2006, and the NSW Trustee and Guardian (fka Protective Commissioner) had been his financial manager since 2002.
The aged care facility at which he resided made an application for guardianship in relation to three aspects of his life:
1) Possible restraint in the form of placement of SZH’s bed against the wall of his bedroom;
2) Advance care planning relating to end-of-life decision making;
3) National Disability Insurance Scheme (“NDIS”) planning;
4) Possible restraint, in the form of the use of coded keypads at all exits of the aged care facility.
The application was at least in part triggered by the applicant’s belief that the position of SZH’s bed, and the use of a coded keypad lock system were “restraints” pursuant to Pt 4A of the Quality of Care Principles made pursuant to the Aged Care Act and that their use requires the consent of an appointed guardian. The aged care facility is required to report on a quarterly basis to the Aged Care Quality and Safety Commission concerning the use of physical restraints, and without the appointment of a guardian, it was submitted that the aged care facility could be in breach of its obligations under the Aged Care Act ([16]). A Regulatory Bulletin issued by the Aged Care Quality and Safety Commission entitled “Regulation of physical and chemical restraint” (Issue No. 2019-8.1 Issue Date: 11 December 2019) (“Regulatory Bulletin”) was also brought to the Tribunal’s attention, as it stated that both the bed placement against a wall, and the use of a coded keypad on doors to exit the facility were both restraints.
A separate representative was appointed for SZH. Counsel appeared, with the Crown Solicitor, for the Public Guardian. The written submissions of both parties are available to read in full, as annexures to the reasons for decision published on Caselaw.
Issues
Should a guardian be appointed?
- Does either the placement of SZH’s bed against a wall, or the use of a coded keypad lock system amount to restraint, in relation to which a guardian needs to be appointed to make decisions?
- Is there a need for decisions to be made in relation to advance care planning, or NDIS planning?
Key legislation and case law considered
Guardianship Act 1987 (NSW)
Section 14(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.
Quality of Care Principles 2014 (Cth)
Section 4:
chemical restraint means a restraint that is, or that involves, the use of medication or a chemical substance for the purpose of influencing a person’s behaviour, other than medication prescribed for the treatment of, or to enable treatment of, a diagnosed mental disorder, a physical illness or a physical condition.
…
physical restraint means any restraint other than:
(a) a chemical restraint; or
(b) the use of medication prescribed for the treatment of, or to enable treatment of, a diagnosed mental disorder, a physical illness or a physical condition.
…
restraint means any practice, device or action that interferes with a consumer’s ability to make a decision or restricts a consumer’s free movement.
The Tribunal summarised the legal principles in relation to unlawful imprisonment/detention ([127]):
1. whether a person is restrained is a question of fact to be determined on all of the available evidence as to the person’s circumstances and the nature and extent of the restraint said to be imposed upon the person’s freedom of movement and liberty (Re: EUY [2019] SACAT 51 at [82]);
2. the placing of “total restraint” on the person’s movement is required in order to constitute false imprisonment. That “total restraint” need bear no similarity to what might normally be described as imprisonment. Compulsion, even of the mildest kind, to remain in a place, leave only with permission and to return to the place, may nevertheless be sufficient (Darcy (bht Diane Aldridge) v State of NSW [2011] NSWCA 413, [153]). Any “restraint within defined bounds which is a restraint in fact may be imprisonment”: (Meering v Grahame-White Aviation Co. Ltd (1920) 122 L.T. 44 at 53-54) (emphasis added);
3. the use of force or direct physical contact is not necessary in order to establish that a person is restrained;
4. lack of fault, in the sense of absence of bad faith, is irrelevant to whether a fact finding of detention may be made;
5. it is not necessary to find that the alleged restraint is against the person’s will. A finding that restraint has occurred is possible even though the person is unaware that they are being restrained;
6. it is not necessary to find that the person has expressed a desire to end the detention, has taken active steps to do so or is physically able to do so.
Darcy (bht Diane Aldridge) v State of NSW [2011] NSWCA 413
[153] I have come to the conclusion that the facts in the present matter require a finding that Ms Darcy was detained, in the sense that this expression is used in the tort of false imprisonment. It is clear that Ms Darcy could not leave Kanangra without permission and, whenever permission was given, she was obliged to return to the institution at the conclusion of her sojourn. She was compelled to remain there and to return there, even though the compulsion was of the mildest kind. The principles I have earlier indicated demonstrate that "any restraint within defined bounds which is a restraint in fact may be imprisonment".
…
[188] …[there] is a power to impose a temporary restraint on a person who “has run amok and is a manifest danger either to himself or to others” (B v Forsey (1988) SC HL 28 per Lord Keith at 63, Lord Griffiths at 68)’.
…
[190] it could not be said that the doctrine of necessity could possibly extend to permit the detention of a person for the period of time Ms Darcy was kept at Kanangra. There is no authority that would allow such a lengthy detention.
VZM [2020] NSWCATGD 25
[47] Whilst there is no statutory definition of restrictive practices and/or physical or chemical restraint under NSW legislation, it has been long recognised in the jurisprudence developed by the Tribunal that the use of restrictive practices for a person who is unable to provide their own informed consent potentially leads to some of the most serious infringement of rights to personal autonomy and freedom of movement. This jurisprudence has also developed to ensure that practices used in relation to a person that would otherwise be unlawful under the common law (such as assault, false imprisonment and detinue) could be utilised in certain specified circumstances if consented to by a guardian with the authority to do so.
…
[57] … (2) There would, however, seem to be equally sound reasons as those expressed in HZC as to why it would promote the welfare and interests of people in relation to whom restrictive practices are being used in residential aged care facilities in NSW for there to be some consistency in the way definitions are applied in the aged care arena and within the Tribunal: s 4(a) of the Guardianship Act.
Analysis
Is SZH a person for whom a guardianship order could be made?
There was no dispute on this issue. The documentary evidence from SZH’s general practitioner, and the evidence from the representative from the aged care facility, was that SZH suffered from ARBI, and possibly frontal lobe dementia, that he was severely impaired, and at very high risk of neglect without full care ([34]-[36]).
This supported the finding that SZH was a person for whom a guardianship order could be made. The Public Guardian and the separate representative also supported that finding. The Tribunal found SZH was a person for whom a guardianship order could be made ([37]-[40]).
Should a guardianship order be made?
In relation to the criteria under s 14(2) of the Act, the question of whether services could be provided without an order was the key point of examination.
In relation to bed placement and the use of coded keypads, the Tribunal had to decide whether the practices described amounted to “restrictive practices” in which case a guardian was required, or whether they were not restrictive practices and thereby did not require the consent of a guardian.
Bed Placement – restraint?
The representative of the aged care facility gave evidence about SZH’s bed placement, which the Tribunal summarised as follows ([51]):
- One side of SZH’s bed is placed against a wall of his bedroom;
- If the bed was moved away from that wall, it would impede the ability of anyone in the room to move around safely due to the size and configuration of the room;
- SZH is able freely to come and go from his bed on the side that is not placed against the wall;
- Bedrails are not utilised on SZH’s bed.
As SZH’s free movement was not restricted, and he could voluntarily get into and out of his bed (at the other side) of his own accord, the Tribunal found that the placement of his bed against a wall was not a restraint or restrictive practice ([55]-[56]).
End of life decision-making
The Tribunal found there to be no apparent need for a guardian to be appointed to make end-of-life decisions, as SZH’s health was stable and those decisions were not being considered at the time ([63]).
NDIS decision-making
The Tribunal was told, late in the hearing, that SZH was an NDIS participant. It was not clear who assisted him with gaining access to the scheme, or who assisted him with development and maintenance/review of his plan ([65]-[66]). None of the parties or the separate representatives made submissions as to whether a guardian should be appointed to make decisions on this issue ([67]).
The Tribunal decided that a guardian with a services function should be appointed for SZH to promote his welfare and interests by ensuring he receives his maximum entitlement to the scheme ([70]).
Keypad lock system – restraint?
The Tribunal went into some depth recounting both the written and oral submissions of the parties who brought them ([78]-[111]).
The separate representative submitted, relying principally on the case of Darcy (cited above), as follows (at [84]):
a) the use of force or direct physical contact is not necessary in order to establish that a person is restrained;
b) lack of fault, in the sense of absence of bad faith, is irrelevant to whether a fact finding of detention may be made;
c) it is not necessary to find that the alleged restraint is against the person’s will. A finding that restraint has occurred is possible even though the person is unaware that they are being restrained;
d) it is not necessary to find that the person has expressed a desire to end the detention, has taken active steps to do so or is physically able to do so.
e) the justification of necessity cannot be relied on for the routine use of a restraint in circumstances where there is a known risk or ongoing behavioural issues.
The separate representative submitted that the only way this practice could therefore otherwise be considered lawful would be if ([93]):
1) SZH consented to it himself; or
2) a guardian appointed with the relevant function provided consent.
The Crown Solicitor (on behalf of the Public Guardian) said that it was arguable whether SZC was “totally restrained”, as per McFadzean v Construction Forestry Mining and Energy Union [2007] VSCA 289, at [41] ([107]-[108]).
However, upon questioning from the panel in relation to the case of Darcy, the concession was made that that the Tribunal could make a finding that the use of the coded keypad lock amounts to false imprisonment ([109],[111]).
Still, the Crown Solicitor said there was no utility in making a guardianship order, as there was no decision to be made that hadn’t already been made in SZH’s circumstances ([110]-[111]). They added that appointing a guardian in these circumstances would amount to “rubber-stamping” ([111]).
On the basis of the legal principles it outlined in [127], the Tribunal found SZH was restrained, in summary because ([133]-[139]):
a) There were no other means of exit from facility other than through exit locked by keypad lock system;
b) Permission to leave was granted only if accompanied by staff, and on condition of return (safety reasons);
c) The circumstances of residence amount to a “total restraint on [SZH’s] freedom of movement as he is unable to unlock the front door and gate of the facility. He is not able to leave the facility unless he is accompanied and he must be returned to the facility if he leaves.”
d) Lack of attempt or desire to leave was irrelevant; lack of physical force irrelevant – submission or passive acquiescence was sufficient;
e) Lack of fault or “bad faith” was irrelevant.
The Tribunal noted the possibility that the restraint might be justified at common law, particularly if the defence of necessity was available. That is - if the practice or act in question was necessary at the time it was done to protect someone from “imminent peril” (State of New South Wales v McMaster [2015] NSWCA 228, [216]-[225] (Beazley P, with whom McColl and Meagher JJA agreed); State of New South Wales v Riley, [84]-[85] (Hodgson JA, with whom Sheller JA and Nicholas J agreed).
The separate representative said it was not available because there was routine use of a restraint in circumstances where there is a known risk or ongoing behavioural issues, and where there was no imminent danger of injury ([84]). The Public Guardian made no submission on this point.
The Tribunal found that the restraint was not justified at common law, because there was no consent to it by the subject person or guardian, and the defence of necessity was not available given the authorities in Darcy, and others, that the defence required there to be “imminent peril” and “temporary” measures taken in the circumstances ([146]-[148]).
There was no other common law defence put to the Tribunal. The Tribunal found SZH’s circumstances could constitute false imprisonment ([150]).
In relation to the question of whether a function should be given to the guardian to decide about the circumstances of SZH’s restraint ([160]). The Tribunal ultimately found one should be given. The reasons of the Tribunal were that to accept the Public Guardian’s view that an order would amount to “rubber-stamping” and thereby not make an order, could potentially expose the aged care facility and other service providers to potential civil liability, however more fundamentally it would also be inconsistent with the s 4 principles in the Guardianship Act, namely the right to live a normal life in the community (s 4(c)) and promoting the subject person’s freedom of action (s 4(b)) ([153]-[156]).
Although noting an accommodation function with authority to “authorise others” to carry out those decisions could be possible, the Tribunal found in agreement with VZM, that consistent use of definitions in the aged care arena and within the Tribunal would promote the subject person’s welfare and interests, and accordingly, described the function in question as one of “restrictive practice[s] involving “physical restraint”” ([167]).
Conditions
In contrast to the Tribunal’s decision in HZC, the Tribunal in this matter found no “behaviours of concern” identified by the application, and therefore no need for a condition requiring the development and maintenance of a behavioural support plan ([168]-[170]).
On the basis of the s 4 principles, namely SZH’s welfare and interests as the paramount consideration (s 4(a)), and his freedom of action (s 4(b)), also acknowledging the operation of the Quality of Care Principles, the Tribunal imposed the following condition on the exercise of the guardian’s restrictive practices “physical restraint” function ([172]):
a) The guardian may consent to the use of the physical restraint permitted under this order in relation to SZH only if:
i. SZH is regularly monitored for signs of distress or harm; and
ii. the use of the restraint is regularly monitored and reviewed.
No private person was available, so the Tribunal appointed the Public Guardian.
Conclusion
The Tribunal appointed a guardian for SZH, with functions of restrictive practices, and services, for a period of three years.
Read the decision on the NSW Caselaw website.
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| NQK [2020] NSWCATGD 39
S Roushan, Senior Member; Dr B McPhee, Senior Member; Dr M Spencer, General Member
Facts NQK is a 31-year-old Albanian man, who arrived in Australia by boat in 2013, and has resided in immigration detention in a Commonwealth facility ever since. He was denied a protection visa, and had no prospect of being released into the Australian community, after exhausting all avenues of appeal.
An application for guardianship was brought by the legal representative of NQK, who represents NQK in immigration matters. NQK was diagnosed with major depressive disorder, had significant weight loss, and was at risk of cardiac or other major organ failure. He had given up hope of being released, was refusing medical treatment, and had stopped eating which had begun to cause severe malnutrition resulting in cognitive impairment.
NQK was discharged from hospital on 26 October 2020 after receiving treatment of a cystic lesion on his neck. The Tribunal had before it a copy of the discharge summary. It also had reports from two psychiatrists – Dr Y, and Dr Z.
Issues
Is NQK a person for whom a guardianship order could be made?
Should a guardianship order be made for NQK?
If so, what order should be made?
Legislation and case law considered
Section 14 of the Guardianship Act 1987 (NSW)
(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.
Analysis
Is NQK a person for whom a guardianship order could be made? The medical evidence provided by Dr Z, psychiatrist and director of a mental health service provider, detailed NQK’s mental history, including history of recording a loss of 11kg in April 2017, corresponding to his food intake; and more weight in May 2019, and again more since then. Dr Z stated in a report that:
[N]umerous psychiatrist and medical assessments have concluded that [NQK] does not suffer Major Depression of such severity that he is deprived of the capacity to understand that he should take medication treatment as prescribed, increase his oral intake under supervision, and accept admission to hospital for physical and mental health treatment.
Dr Y, consultant psychiatrist, said in his report:
[I]t is more likely than not that [NQK] suffers from a severe major depressive illness and a mild neurocognitive disorder, the latter being due to severe malnutrition… [A]s a result of either his severe major depression or his mild neurocognitive impairment or both, [NQK] lacks decision-making capacity with respect to healthcare decisions that involve the comprehension and retention of complex or novel information or the ability to use and weigh such information… [A]s a result of his severe major depression, [NQK] lacks decision-making capacity with respect to healthcare decisions that involve using and weighing information in a context where his self-worth or his future prospects are a relevant consideration.
In Dr Y’s opinion, the reports of other clinicians lacked sufficient detail, or reasoning beyond “bald opinion” to be reliable in relation to the question of NQK’s capacity ([18]). Dr Y had conducted interviews and cognitive testing on NQK, and had serious doubts as to the veracity of the previous reports in relation to NQK’s cognitive condition ([18]). The Tribunal stated at [19]:
Dr Y was of the view that NQK’s lack of decision-making capacity was likely to extend to any decision that would involve understanding, retaining, using and weighing complex information.
The Tribunal, with Dr Y’s help, explained the gist of Dr Y’s findings to NQK, who appeared to agree with Dr Y ([20]).
The Tribunal found Dr Y’s evidence to be “detailed, nuanced and persuasive”, accepted it and placed weight on it, finding that NQK was in fact a person for whom a guardianship order could be made because he has a severe major depression and mild neurocognitive disorder with modest cognitive impairment ([21]).
Should a guardianship order be made?
Dr Y told the Tribunal that examples of decisions which needed to be made, and which NQK, in his view, was unable to make for himself, included ([24]):
1. an abdomen CT to assess NQK for superior mesenteric artery obstruction causing abdominal pain and decreased oral intake;
2. taking supplements to manage any nutritional deficiencies, including thiamine;
3. taking medication for the treatment of depression;
4. increased intake of protein in his diet to prevent deterioration of pressure areas and improve his muscle strength; and
5. transfer to hospital for refeeding, orally and by nasogastric tube if needed with regular blood tests to watch for re-feeding syndrome.
Although NQK did not express objections at the hearing, Dr Y indicated it was likely that NQK would oppose refeeding, and said authority for the guardian to override those objections may be necessary ([25]).
The Public Guardian also expressed the view that a guardian was required to make medical and dental treatment decisions, health care decisions, and decisions to override NQK’s objections to treatment, where necessary ([26]).
To facilitate medical decisions such as re-feeding, in hospital, over NQK’s objections, the Tribunal considered that these decisions may require an accommodation function with authority to “authorise others” to take NQK to a particular place, keep him there, and return him there ([28]).
Due to a complaint lodged on his behalf to the United Nations Human Rights Committee in relation to his immigration matters, the Tribunal was persuaded to appoint a guardian with a legal services function so that they can seek advice from and instruct NQK’s legal representative ([29]).
In the absence of a private guardian being available, the Public Guardian was appointed.
Conclusion
Guardianship order made, appointing the Public Guardian as NQK’s guardian for 6 months.
Read the decision on the NSW Caselaw website.
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| | ZOF v NSW Trustee and Guardian (No. 2) [2020] NSWCATAP 254
Armstrong J, President; M D Schyvens, Deputy President; L Porter, General Member
This matter was the re-hearing of a guardianship division matter which was appealed, and where the Appeal Panel decided to deal with the appeal by way of a new hearing. The facts of the matter, and the grounds of appeal, are contained in the first published decision of the Appeal Panel (ZOF v NSW Trustee and Guardian [2020] NSWCATAP 167).
Issues
Is ZOF not capable of managing his affairs?
Is there a need for another person to manage those affairs on ZOF’s behalf?
Is it in ZOF’s best interests that a financial management order be made?
Legislation and case law considered
Guardianship Act 1987 (NSW)
Section 25E - Tribunal may make financial management orders
(1) The Tribunal may, in accordance with this Part, order that the estate of a person be subject to management under the NSW Trustee and Guardian Act 2009.
(2) The Tribunal may exclude a specified part of the estate from the financial management order.
Section 25G – Grounds for making financial management order
The Tribunal may make a financial management order in respect of a person only if the Tribunal has considered the person’s capability to manage his or her own affairs and is satisfied that:
(a) the person is not capable of managing those affairs, and
(b) there is a need for another person to manage those affairs on the person’s behalf, and
(c) it is in the person’s best interests that the order be made
Analysis
The Appeal Panel noted from the outset that none of the parties, or evidence submitted by the parties, suggested that ZOF was incapable of managing his day-to-day “usual” expenses, but the focus had always been on his ability to manage the large lump sum payments he received and might receive via the reparations scheme ([11]).
The evidence before the Appeal Panel in relation to ZOF’s capacity to manage his affairs was the same evidence which was before the Tribunal at first instance: a letter from a general practitioner, Dr Y, and an assessment report from Mr X, psychologist ([15]). Both documents were over 12 months old, and neither Dr Y nor Mr X was available to provide direct evidence at the hearing ([15]). ZOF’s evidence to the Appeal Panel was that he had never met Dr Y, and that she had written the report only from reviewing his medical file. On that basis, the Appeal Panel therefore afforded that letter no weight ([16]-[17]).
The psychologist assessment conducted by Mr X noted a “severe cognitive impairment”, and “poor memory” but that ZOF could understand “first order consequences” and demonstrated a “limited understanding of how the consequences of his decisions will impact him… however immediate consequences were understood.” ([18]). It concluded that ([18]):
I am of the opinion that neither a Guardianship order nor a Financial Management order is required. [The Appellant] appears able to make informed decisions albeit with a limited scope and his own priorities.
The separate representative noted the comments by Lindsay J in H v H [2015] NSWSC 837, [30]:
[T]he “affairs” the subject of an inquiry about capacity for self-management, in the context of section 41 of the NSW Trustee and Guardian Act, are the affairs of the person whose need for protection is under scrutiny, not some hypothetical construct.
She also noted that the previously made financial management order had not even been utilised by the financial manager, because ZOF’s Centrelink income was excluded from the order, and there had otherwise been no enhancements to his estate since the order was made ([28]).
The separate representative gave submissions on the detriment caused by the financial order on ZOF’s cultural norms and values. ZOF told the Appeal Panel ([32]):
It [the order] has taken away my identity as an aboriginal man, I was brought up to share and care……
The order has taken away my freedom and everything – you don’t know what it is like – I do…..
[The order] takes a lot of things away, it is like living under the thumb. If you have been where I have been, I have always been under rules and this is just another rule put on me. I have been under rules since I was 3 months old, under white mans’ rules. This is like living under the rule again.’
It was submitted that the order, given its lack of utility and the detriment caused to ZOF, was not in his best interests ([33]).
The Appeal Panel agreed with the separate representative’s submissions as to ZOF’s capacity to manage his affairs, the need for another person to manage his estate, and as to whether the order was in his best interests ([35], [37]-[38]). It said (at [40]):
In the circumstances particular to the Appellant, that is: he is a member of the Stolen Generations, which has amplified his negative perception of the existing order to a degree which perhaps may not be the case for someone not of his cultural background and history; the order to date has proved to be of no utility; and there is insufficient certainty surrounding the Appellant’s claim against the State [Stolen Generations compensation] to conclude an order could be of requisite utility in the recently foreseeable future: when having regard to the principles enunciated in s 4 of the Guardianship Act to evaluate how to exercise the discretion afforded to us by Pt 3 of that Act, we are not satisfied that an order should be made.
The Appeal Panel noted that it had not expressed an opinion on ZOF’s capacity to deal with his estate if he did in fact receive a lump sum in compensation, nor did the evidence address that specific issue ([41]).
Conclusion
The Appeal Panel allowed the appeal, set aside the orders of the Tribunal on 3 October 2019, and in substitution, ordered that the application for a financial management order be dismissed, directing the NSW Trustee and Guardian to release any part of ZOF’s estate in its possession.
Read the decision on the NSW Caselaw website.
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| ZQP v ZQQ [2020] NSWCATAP 247
Boland ADCJ, Deputy President; M D Schyvens, Deputy President; Dr M Wroth, Senior Member
Facts ZQQ was an 88 year old Portuguese woman, who had a diagnosis of dementia. On 28 February 2020, the Guardianship Division made guardianship and financial management orders, appointing the Public Guardian and the NSW Trustee and Guardian as her guardian and financial manager, respectively.
These orders were made at a hearing of applications to review enduring guardianship and enduring power of attorney, wherein the Tribunal decided, with support from the parties, to treat those applications as applications for guardianship and financial management orders.
There was significant conflict within the family, including allegations that one of the attorneys, ZQS, was acting alone despite being a joint attorney with her two sisters, that ZQS had been misusing ZQQ’s funds, and was not accounting for them.
The appellant (ZQP, one of the three sisters), with support from ZQS, sought to appeal the Tribunal’s decision, and filed a notice of appeal and application for a stay of the orders, also seeking an extension of time on the filing of the appeal, as it had been filed more than 28 days after the date of the Tribunal’s reasons were issued. ZQQ’s son (ZQT) and ZQR opposed the appeal.
The appellant sought orders setting aside the orders of the Tribunal, in effect “reviving” the enduring power of attorney and enduring guardian appointments, but she sought orders to amend those documents so that she was appointed in those roles alone, rather than jointly with her sisters.
The ground of appeal, as elucidated by the Appeal Panel, was that the Tribunal failed to take into account documentary evidence largely related to her brother ZQT’s character, as the applicant in the proceedings. The appellant submitted that the applications should have been given little weight, on account of that character evidence.
The appellant also asserted that the Tribunal below failed to afford her procedural fairness, in that it focussed disproportionately on monies provided by ZQQ to ZQS, before the enduring power of attorney in question was signed.
Issues
Should the Appeal Panel grant an extension of time for filing the appeal?
Should the Appeal Panel grant leave to appeal on a question other than a question of law?
Legislation and case law considered Civil and Administrative Tribunal Act 2013 (NSW)
Section 80 - Making of internal appeals (1) An appeal against an internally appealable decision may be made to an Appeal Panel by a party to the proceedings in which the decision is made.
Note: Internal appeals are required to be heard by the Tribunal constituted as an Appeal Panel. See section 27(1).
(2) Any internal appeal may be made:
(a) in the case of an interlocutory decision of the Tribunal at first instance - with the leave of the Appeal Panel, and
(b) in the case of any other kind of decision (including an ancillary decision) of the Tribunal at first instance--as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds.
(3) The Appeal Panel may:
(a) decide to deal with the internal appeal by way of a new hearing if it considers that the grounds for the appeal warrant a new hearing, and
(b) permit such fresh evidence, or evidence in addition to or in substitution for the evidence received by the Tribunal at first instance, to be given in the new hearing as it considers appropriate in the circumstances.
Collins v Urban [2014] NSWCATAP 17 [82]-[84] (relevant factors which, if established and raised in an appeal, might indicate that a grant of leave is warranted): (1) issues of principle;
(2) questions of public importance or matters of administration or policy which might have general application; or
(3) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal’s decision and not merely peripheral, so that it would be unjust to allow the finding to stand;
(4) a factual error that was unreasonably arrived at and clearly mistaken; or
(5) the Tribunal having gone about the fact-finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result, so that it would be in the interests of justice for it to be reviewed.
Analysis
The Appeal Panel noted at the beginning of their consideration that given the kind of orders sought and grounds brought in support of the orders, and the fact that the appellant was unrepresented, it was apparent that she largely misunderstood the nature of appeal proceedings ([47]).
The Appeal Panel said, in any event, it would be inappropriate to make the order sought in relation to altering the enduring power of attorney and enduring guardian instruments, as the Tribunal below had, with the support of the parties, decided to treat the review applications as applications for guardianship and financial management, and made orders in those terms accordingly ([48]-[50]).
The asserted failure of the Tribunal to take into account the documents, as described by the appellant were not relevant to the orders made, because they went to ZQT’s character as the applicant. The appellant raised no issue about the standing of ZQT to make the application at the hearing of the matter in the Tribunal below. ([52]). The appellant also supported the Tribunal’s decision to treat the review applications as applications for guardianship and financial management ([52]-[54]). The Appeal Panel said it was unable to discern the gravamen of this ground ([54]). No transcript of the hearing was provided to the Appeal Panel.
On the issue of a disproportionate focus on monies paid by ZQQ to ZQS, the Appeal Panel observed that the appellant did not assert any error by the Tribunal in not appointing ZQS as ZQQ’s financial manager ([58]). The appeal panel therefore concluded that it was open for the Tribunal to take into account the evidence as it did, and there was no merit in the applicant’s position that the Tribunal erred in doing so ([60]).
The appellant’s concerns did not disclose any viable ground of appeal ([64]).
Conclusion
The application for an extension of time to appeal was refused; leave to appeal was refused; and the appeal was dismissed.
Read the decision on the NSW Caselaw website.
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| ZPH v ZPI [2020] NSWCATAP 201
A Britton, Principal Member; J Kearney, Senior Member; M Spencer, General Member
Facts The subject person, ZPI, a 93 year old man, who at the time of the hearing was living in a group home in Warriewood, Sydney, appointed a friend (the co-enduring guardian), and the appellant (ZPI’s nephew, the appellant) as his enduring guardians (“the First EGA”) on 28 March 2019. On 18 April 2019, ZPI appointed another friend, the respondent, as his enduring guardian (“the Second EGA”). In July 2019, the appellant brought an application in the Guardianship Division to review the enduring guardianship appointment and confirm the First EGA.
The Tribunal decided to treat the application for review as an application for a guardianship order, and the parties expressed agreement with that course of action ([27]-[28]).
The Tribunal appointed the Public Guardian and the respondent, ZPI, as guardians for the subject person, for a period of 12 months.
Four grounds were distilled from 42 grounds initially stated in the notice of appeal. The grounds of appeal were as follows:
1) Whether, in exercising its power to review the first enduring guardianship appointment, the Tribunal was obliged to determine whether the Appellant’s appointment as enduring guardian had been validly revoked.
2) Whether the Tribunal failed to afford the Appellant procedural fairness by proceeding to make a guardianship order.
3) Whether the finding made by the Tribunal that the Appellant was not able to exercise the functions conferred by the guardianship order, was against the weight of evidence and/or was not fair and equitable.
4) Whether the finding made by the Tribunal that the Respondent was able to exercise the functions conferred by the proposed guardianship order was against the weight of evidence and/or was not fair and equitable.
Grounds 3 and 4 did not raise questions of law, and therefore required a grant of leave to appeal.
Issues
Did the Tribunal err in not determining whether the Appellant’s appointment as enduring guardian had been validly revoked?
Did the Tribunal err by failing to afford the appellant procedural fairness by proceeding to make a guardianship order?
Should leave be granted to appeal on grounds 3 and 4?
Legislation and case law considered
Collins v Urban [2014] NSWCATAP 17
[77] The decision under appeal can be said to be "against the weight of evidence" (which is an expression also used to describe a ground upon which a jury verdict can be set aside) where the evidence in its totality preponderates so strongly against the conclusion found by the tribunal at first instance that it can be said that the conclusion was not one that a reasonable tribunal member could reach
…
[84] (see above)
Civil and Administrative Tribunal Act 2013 (NSW)
Section 38(5)
…
(5) The Tribunal is to take such measures as are reasonably practicable—
(a) to ensure that the parties to the proceedings before it understand the nature of the proceedings, and
(b) if requested to do so—to explain to the parties any aspect of the procedure of the Tribunal, or any decision or ruling made by the Tribunal, that relates to the proceedings, and
(c) to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings.
Section 80 (see above).
Guardianship Act 1987 (NSW)
Section 4 - General principles
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.
Section 6K - Action on review
(1) On reviewing the appointment of an enduring guardian, the Tribunal may:
(a) revoke the appointment or deal with the matter as provided by subsection (3) (or both), or
(b) confirm the appointment, with or without varying the functions of the enduring guardian under the appointment.
(2) The Tribunal must not revoke the appointment of an enduring guardian unless:
(a) the enduring guardian requested the revocation, or
(b) the Tribunal is satisfied that it is in the best interests of the appointor that the appointment be revoked.
(3) The Tribunal may, if it considers that it is in the best interests of the appointor to do so, deal with a review as if any of the following applications had been made in respect of the appointor:
(a) an application for a guardianship order under Part 3,
(b) an application for a financial management order under Part 3A,
(c) applications for both such orders.
(4) The Tribunal may confirm the appointment (or purported appointment) of a person as an enduring guardian under subsection (1) (b) even where:
(a) the instrument that purported to appoint the person as an enduring guardian was not executed in accordance with the requirements of this Part, or
(b) the person purporting to make the appointment announced his or her intention to make the appointment but became incapacitated before an instrument making the appointment could be executed in accordance with the requirements of this Part,
(c) if the Tribunal is satisfied that the confirmation of the appointment (or purported appointment) reflects the appointment that the person making the appointment intended to make at the time it was purportedly made.
(5) The confirmation of the appointment of an enduring guardian under subsection (1) (b) has effect as if an instrument of appointment had been executed in accordance with the requirements of this Part by the appointor in the terms confirmed by the Tribunal.
Analysis
Ground 1
The appellant submitted that the Tribunal was obliged to make a determination about the validity of the purported revocation of the “First EGA”. He stated several reasons, including that it was not in the prescribed form, and that the subject person lacked capacity at the time it was purportedly revoked, among others.
The respondent said that the Tribunal was entitled to proceed to treat the application for review of the EGA as an application for guardianship.
The Appeal Panel said that the Tribunal was not obliged to make the determination as alleged by the appellant, but rather the Tribunal was empowered to make any orders pursuant to s 6K of the Act ([42]).
The premise stated by the appellant that once the initiating application for a review was filed, the Tribunal had to confirm, or not confirm, the appointment, was flawed. The Appeal Panel said (at [43]):
Once the power to review the appointment (or purported appointment) of an enduring guardian is enlivened by a request of a person who, in the opinion of the Tribunal, has a genuine concern for the welfare of the appointor (s 6J(2)), the Tribunal may make several types of orders, which include to treat the review as an application for a guardianship order, “if it considers that it is in the best interests of the appointor to do so”: s 6K(3)
No error of law was disclosed, because it was open for the Tribunal to treat the review as an application for a guardianship order ([44]).
This ground of appeal was rejected.
Ground 2
Despite the fact that the appellant told the Tribunal at first instance that he supported the decision to treat the review application as an application for a guardianship order, he told the Appeal Panel that he did not appreciate the consequences of that decision, and the Tribunal failed to afford him procedural fairness by failing to ensure he did understand ([47]-[48]).
A review of the transcript by the Appeal Panel led it to conclude that not only had the Tribunal explained the consequences of the decision to treat the review application as an application for a guardianship order, but that it explicitly invited parties to comment on its proposal to do so ([51]). The Tribunal’s obligation extended only to take such measures as are “reasonably practicable” to ensure the parties understood: s 38(5) of the NCAT Act. The Appeal Panel was satisfied, on review of the transcript, that the Tribunal had not only met, but exceeded, that obligation ([51]).
This ground of appeal failed.
Ground 3
The full reasons of the Tribunal in relation to not appointing the appellant as the subject person’s guardian is given at [56] of the Appeal Panel’s decision. In brief, the Tribunal accepted evidence that the appellant had exhibited difficult behaviours in relation to the subject person’s service providers to the point which he was excluded from the accommodation facility at which the subject person lived, and a provisional AVO being taken out against him ([56]). In these circumstances, the Tribunal could not be satisfied that the appellant was able to exercise the functions of a guardian in a manner compatible with ensuring the subject person continued to receive a high level of care ([56]).
On appeal, the appellant contended that (at [57]):
1) The Tribunal failed to give sufficient weight to the evidence that the Subject Person was not happy with being placed in residential aged care and had attempted to abscond on several occasions.
2) The Tribunal failed to give sufficient weight to his evidence, which he asserted established that the care provided to the Subject Person was of poor quality, and the Subject Person was frequently observed, to be soiled, to have sustained injuries and to be heavily sedated, among other things.
3) There was a proper basis for the concerns he expressed about the Subject Person being given Risperidone. In raising those concerns he was voicing the concerns expressed by Subject Person and advocating on his behalf.
4) The current Royal Commission into Aged Care Quality and Safety reveals that aged care providers commonly label people, such as himself, who advocate on behalf of residents as “difficult”.
5) The Tribunal incorrectly stated that he was “banned” from the group home in which the Subject Person currently resides as stated by the Tribunal at [59]. Rather, he asserts he voluntarily complied with a “no visitor” request made by the home’s manager, to enable the Subject Person to be observed for a two week period without potential outside influence.
6) The Tribunal failed to give sufficient weight to the evidence of his solid employment history which supports his contention that he was capable of discharging the functions of guardian.
The Appeal Panel found that the Tribunal had objective evidence, including the provisional AVO, police intervention, and being excluded from two of the four facilities at which the subject person resided in since mid-2019, which left it open to conclude that the appellant lacked the ability to exercise the functions conferred by the guardianship order ([61]). That decision was therefore not against the weight of evidence, as described in Collins v Urban ([60]).
Ground 4
The appellant produced for the Appeal Panel a document authored by himself, which rated the performance of the respondent in her purported role as enduring guardian in the period mid-2019 to March 2020, against the principles in s 4 of the Guardianship Act – on a scale of “not achieved” to “satisfactory”. He rated her performance as “not achieved”, alleging the following (at [63]):
- the care of his uncle had been neglected, pointing to among other things, evidence of alleged unmet dental needs and the decision by the Respondent to authorise Risperidone being prescribed to the Subject Person;
- his uncle was not encouraged to be self-reliant, as evidenced by the Respondent’s rejection of the Appellant’s proposal that the be cared for in his own home or at least in the suburb where he had been living when admitted to hospital in May 2019;
- his uncle was “socially isolated” as a result of being moved away from family and friends and family members being prevented from visiting him.
The respondent rejected the appellant’s contention that she was unable to discharge the functions of a guardian ([64]).
The Tribunal contrasted the appellant’s history of behaviour with that of the respondent, who it said consulted medical personnel to respond to the subject person’s needs, and made decisions about medication based on medical advice, and had demonstrated an ability to exercise her functions as guardian. The Appeal Panel held that there was an intelligible and evident basis for that finding ([67]).
This ground of appeal failed ([68]).
Conclusion Leave to appeal is refused; the appeal was dismissed.
Read the decision on the NSW Caselaw website.
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| | Supreme Court of New South Wales |
| Sobalirov v Bullen [2020] NSWSC 1532
Sackar J
Facts This matter was transferred from NCAT to the Supreme Court under s 25L of the Civil and Administrative Tribunal Act.
The subject person, Ms Bullen, was 89. A thorough background is given in the Court’s judgment from [14]-[46]. In brief, Ms Bullen had throughout her life before and after she was married invested in real estate and shares. She kept the records of her and her husband’s investments, and attended to various payments, including school fees and household expenses for her family, which included four children. After her husband passed in 2014, Ms Bullen was granted probate and purchased a property at Forbes. She was admitted to hospital in January 2017, and then again in February 2017, May 2017, and June 2017, on separate occasions. She had surgery on 10 July 2017, and stayed in hospital until 9 August 2017, after which time, between 18 September 2017 and 15 May 2018, a number of property transfers took place, including Weelong Farm, Moobong Farm, Wandary Lane Farm, and Glencoe Farm, among others, mostly to her grandsons. Property transfers were also made to two of her daughters, Kerry and Jeni. Ms Bullen has two other children – the plaintiff, Jane, and a son, Geoffrey.
The thrust of the plaintiff’s submissions were that the defendant was of an advanced age, but was in any event otherwise disabled by virtue of the way she has, on the one hand, become isolated from her children Jane and Geoffrey and, on the other hand, become controlled by and reliant on her other children Kerry and Jeni. In this way, the plaintiff said, the defendant had become incapable in the sense described by the Court in Bellamy v Bellamy [2018] NSWSC 534 at [18]:
[a] person who, through being under the influence of some other person or perhaps simply as a result of being misinformed, may be ‘not capable’
The defendant submitted that the plaintiff was required to serve expert reports from at least two appropriately qualified medical practitioners, and that the plaintiff had advanced none. The defendant said that there was no basis to infer that she was incapable of managing her affairs, and that she was entitled to the presumption of capacity ([52]). She said she had made decisions, such as the decisions herself, with advice and assistance from the same advisors who helped her and her husband while he was alive. She said her decision to transfer property in 2017-18 was based on legal advice, and in order to honour her late husband’s wishes that the properties remain in family hands. She submitted that the rental yield from the residential properties had not diminished her ability to meet her needs.
The evidence of the parties is extensively outlined in paragraphs [64]-[214].
Issues
Should the Court appoint a financial manager to manage the defendant mother’s affairs?
- Does the defendant have capacity to manage her own affairs?
Legislation and case law considered
Guardianship Act 1987 (NSW) Sections 25E, 25G (see above).
CJ v AKJ [2015] NSWSC 498 [17]-[34]
Bellamy v Bellamy [2018] NSWSC 534 At [18]:
[a] person who, through being under the influence of some other person or perhaps simply as a result of being misinformed, may be ‘not capable’
Analysis
After a thorough evaluation of the evidence, the Court found Ms Bullen was capable of managing her affairs ([254]).
Some of the key evidence which led the Court to this conclusion was as follows:
- The defendant was cross examined at some length, answered on all occasions responsively, relevantly and in a timely fashion, although from time to time she was uncertain as to some of the detail ([217]);
- Although she was very ill at the time she signed the transfers, it was evident to the Court that the defendant wanted to make those decisions herself while she was still alive. She said she had been thinking about doing it for some time and the solicitors’ diary notes, to the Court, showed a “determined and rational mind at work.” ([253])
- The defendant also made contact with the plaintiff, Jane, in June 2020, and had a “perfectly rational conversation with her”, following which she sent her a letter. Sackar J said this was “one of the most important pieces of evidence in the case” ([252]).
Justice Sackar made the following comments (at [235]):
In the absence of medical evidence of an expert nature to the contrary, Sackar J said he was unable presently to come to the view that the defendant’s mental acuity was such that a financial manager should be appointed. Her GP considers her cognitive functions intact. She was resistant to the proposition that she did anything against her will. She clearly has a difficult relationship with her son Geoffrey and daughter Jane, but that does not mean she lacks mental acuity.
Although the plaintiff’s evidence (or the way she gave it) had its flaws, the Court was satisfied that on the totality of the evidence, and by observing her give her evidence, she was for the present, and foreseeable future, capable of managing her own affairs. That fact that she at times required assistance in doing so did not detract from that conclusion ([254]).
Conclusion
The Court refused to make the orders sought by the plaintiff.
Read the decision on the NSW Caselaw website.
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| Re KA [2020] NSWSC 1696
Lindsay J
Facts The subject person was described as a “wealthy, 83 year old, childless widow of Serbian origin, without family in Australia”. In previous proceedings in NCAT, she was described in reasons for decision as a person vulnerable to undue influence and exploitation. A financial management order made for the subject person by NCAT on 9 October 2015, was revoked by the Tribunal on 19 June 2020, after the hearing of an application for revocation of the order, brought by DS (the subject person’s nephew, resident of Norway, and one of three joint enduring attorneys). The Tribunal revoked the order, not because it found she had regained capacity, but because it was in her best interests that the order be revoked in the hope of reducing the costs of her ongoing care and thereby facilitating her continuing residence in her home of many years at North Bondi. Informal support was being provided at the time by DS and the other defendants.
The subject person was then, in August of 2020, shortly after the NCAT proceedings, relocated from her home in North Bondi, to Liverpool, where she lived alone but with private care. The first and second defendants took out an apprehended violence order with the intention of keeping any individuals associated with a church away from her. The Court noted that NCAT had not raised any concern about the plaintiff, or other church-associated people in relation to the subject person.
On 29 November 2019 (at a time when her estate was under financial management) the fifth defendant executed an enduring power of attorney appointment in favour of the first defendant. On the same date, she also executed an enduring guardianship appointment, appointing DS, and the second defendant jointly, as her enduring guardians.
A notice of motion was brought on 19 September 2020 by a retired minister of religion (the plaintiff) from a church to which the fifth defendant (the subject person) had belonged, but according to the defendants, had left long ago. The plaintiff asserted an interest in the subject person’s welfare as a pastor and friend, and maintained he had no interest in her estate or expectation thereof.
The judgment does not specify the contents of the notice of motion, however orders made on 18 November 2020 in response to the motion facilitated:
1) an independent medical examination of the fifth defendant, directed towards provision of a report to the Court on her capacity for self-management; and
2) the appointment of a visitor to attend upon her to understand, and to report to the Court on, her current needs and her views about the conduct of her affairs generally.
The plaintiff’s stated position in bringing the notice of motion was as follows:
1) should the fifth defendant be found, upon an independent medical examination, to be capable of managing her own affairs;
2) should she, expressing her own independent views, say that she has no desire to continue personal contact with him; and
3) should it be found that she is safe, secure and being properly cared for in her current accommodation,
then he will not press for further protective orders affecting her.
The defendants opposed the motion. Their evidence was to the effect that the subject person did have capacity, and wanted nothing to do with the plaintiff or the church, or the NSW Trustee and Guardian, or a medical examination.
Counsel for the defendants also said should an independent medical examination of the fifth defendant establish that she is not capable of managing her own affairs, an application may be made (on the plaintiff’s amended summons or by a cross summons yet to be filed) for an order for the appointment of a protected estate manager nominated by them.
Initially, it was agreed between the parties that no reasons for the orders needed to be published. However, because of the subject person’s reluctance to submit to a medical examination, her solicitor sought reasons to be published. Her reluctance was reported as being at least in part due to her reluctance to further engage with the NSW Trustee and Guardian.
Issues
Should the Court grant the motion requested?
Case law considered
In re WM (a person alleged to be of unsound mind) (1903) 3 SR (NSW) 552
Analysis and conclusion
Justice Lindsay explained his rationale for making the orders as follows (at [56]):
…The circumstances in which the order for financial management of the fifth defendant’s estate was discharged by NCAT were in themselves unusual (because, despite her continuing incapacity for self-management, a management order was discharged), and the course of events following NCAT’s discharge of the management order suggests that closer attention needs to be given to the possibility that both her person and her property are in need of a regime of protective orders. There may be a need for orders designed to ensure that her affairs are managed under the supervision of the Court or subject to the regime for which the NSW Trustee and Guardian Act 2009 provides.
His Honour also said particular care had to be made to ascertain the subject person’s level of capacity, as it was possible that she may need to sell some of her real estate to meet the costs of care she required ([58]). He said it was not unusual for a person in need of protective management to be strongly opposed to protective management, and a medical examination – sometimes, they were in fact an indicator of incapacity (though that question was open in this case) ([59]). The objectivity of DS and the other defendants was open to doubt on the basis that they opposed an independent medical examination ([60]). On the other hand, keeping her in “close quarters” and under control of a small group of people who resist such an independent review of her circumstances, carries a risk that her welfare is not being held as the paramount consideration ([60]).
The orders made were designed to do no more than what was necessary to protect her interests and welfare ([61]).
Read the decision on the NSW Caselaw website.
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| | DISCLAIMER: This publication has been prepared for information purposes only. The Guardianship Division Case Digest should not be relied on as legal advice nor is it a substitute for reading the decisions in full. NCAT does not accept any liability to any person for the information (or the use of the information) which is provided in this publication.
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