Guardianship Division Case Digest Issue 1 of 2022
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, Supreme Court of New South Wales and High Court of Australia. | | NCAT Guardianship Division | NKU [2022] NSWCATGD 1 A R Boxall, Senior Member, M Bain, Senior Member, Dr J M Green, General Member – 17 May 2022
In sum: The Tribunal reviewed an enduring power of attorney and made directions about the attorney’s obligations to pay commission to an estate agent in connection with the sale of the principal’s property. Under s 38 of the Powers of Attorney Act 2003 (NSW) the Tribunal may approve or disapprove of any act proposed to be done by the attorney, give such advice or direction as it considers appropriate, or vary the effect of the enduring power of attorney or make any other order it could make in an application under s 36 of the Act.
Facts: NKU is a permanent resident at an aged care facility and is reported to have Alzheimer’s dementia. In 2015, he appointed his accountant as his enduring attorney under a registered power of attorney. The attorney executed an agency agreement appointing an estate agent to act for NKU in connection with the marketing and sale of NKU’s property. The property was sold to Transport for NSW (TFN). Under the agency agreement, the estate agent is entitled to a fee of 1.7% for the sale of the property if the property was sold during an ‘exclusive agency period’ and is sold by either an ‘agent’ or the ‘principal’. The attorney received advice from NKU’s solicitors that the property was compulsorily acquired by a State authority and the vendor is therefore released from the obligation to pay commission to the agent under the agency agreement: s 20(1)(b) of the Land Acquisition (Just Terms Compensation) Act 1991 (NSW). The attorney applied to the Tribunal for advice about whether he was required to pay the agent’s commission.
Issues and outcome: (i) The mere fact that TFN acquired the land does not necessarily mean that the land was acquired by compulsory purchase, as TFN can also acquire land by agreement: cl 11(1) of Sch 1 to the Transport Administration Act 1988 (NSW). Under the same Act, an acquisition notice for land which is compulsorily acquired must be published in the Government Gazette. The attorney submitted evidence that there was no such notice in relation to NKU’s property, as per searches completed by a professional searching agency. It cannot be concluded that the purchase by TFN was anything other than a normal purchase by agreement ([28]-[29]).
(ii) Even if it is accepted that TFN acquired the land by compulsory purchase, the obligation to pay commission under the agency agreement is a personal obligation of the vendor which does not burden or run with the property. Therefore it is not an obligation that can be relieved by operation of s 20(1)(b) of the Land Acquisition (Just Terms Compensation) Act 1991 (NSW) ([31]).
(iii) The Tribunal was satisfied that the estate agent is entitled to receive the commission provided for in the agency agreement and approved the proposal by the attorney to pay a GST inclusive commission totalling $129,624 to the estate agency ([32]).
(iv) The Tribunal also approved payment by the attorney of the legal and other costs associated with the application out of NKU’s estate, recognising that it would be unfair and onerous for the attorney to personally bear the costs of making a reasonable and proper request for advice ([34]). | BXC [2022] NSWCATGD 2 A R Boxall, Senior Member, M Bain, Senior Member, Dr J M Green, General Member – 17 May 2022
In sum: The Tribunal made a financial management order appointing a private financial manager for the subject person (BXC) who is part of a religious Congregation. Applying the provisions in Part 3A of the Guardianship Act 1987 (NSW), the Tribunal found that it was appropriate to make an order so that the applicant’s property could be dealt with according to the Congregation’s procedures and practices.
Facts: BXC is 97 years old and has over the last 70 years been a member of a religious Congregation. In accordance with the practices of the Congregation, BXC took a vow of poverty and entered the Congregation without material wealth. The Congregation is responsible for ensuring its members’ needs, including housing are met. When BXC’s health deteriorated, the Congregation ensured her accommodation in an aged care facility. On the death of her brother, BXC was left a half interest in a property. The Congregation has procedures for placing members’ property under the management of the Congregation. The member’s continuing interest in her property is credited to a “Patrimony Account” which is part of the Congregation’s statutory trust. An application for a financial management order was made by the Prioress of the Congregation to allow the sale of BXC’s property and to credit the proceeds of the sale to BXC’s patrimony account.
Issues and outcome: (i) The Tribunal applied the principles set out in s 4 of the Guardianship Act, finding that the sale of the property and the application for BXC’s share of the sale proceeds towards her patrimony account would be in accordance with her chosen way of life and likely wishes. The Tribunal was satisfied that BXC has a personal commitment to the Congregation and had enjoyed the benefits (and accepted the burdens) of the community’s collective approach to dealing with matters of finance and wealth ([21]-[22]).
(ii) The Tribunal was satisfied that there is a need to appoint a financial manager for BXC for the limited purpose of selling the property and releasing her share of the net proceeds of sale ([19]). It was in BXC’s best interests for the order to be made to permit the sale of the property which produces no income for BXC, incurs costs (such as rates), and because of its decrepit state, potentially exposes her to liability ([24]).
(iii) Financial management orders apply to the whole estate of the person. However, the Tribunal may order that certain parts of the estate should be excluded from the financial management order: s 25E(2) of the Guardianship Act. As the Tribunal has no role in intervening in the relationship between BXC and the religious institution, it decided to exclude from the order, the whole of BXC’s estate, other than her interests in the property and its sale proceeds ([30]-[31]). The financial management order is to be reviewed in 12 months, reflecting the limited purpose of the order. | TKQ [2021] NSWCATGD 23 J Moir, Senior Member - 21 December 2021
In sum: The Tribunal consented to the administration of the COVID-19 vaccine, despite opposition by the subject person’s mother who is his appointed guardian. The Tribunal found that TKQ’s mother was not able to consider the proposed medical treatment in a sufficiently balanced way, and that the decision to provide consent is consistent with TKQ’s welfare and interests having regard to the objects of Part 5 of the Guardianship Act 1987 (NSW) (the Act).
Facts: TKQ is a 62 year old man who has been diagnosed with chronic treatment resistant Schizophrenia. The Tribunal received an application from his treating psychiatrist (the applicant) seeking consent to the administration of two doses of the Pfizer vaccine and a booster after six months, for the protection against the adverse consequences of a COVID-19 infection. TKQ was not able to provide consent to having the COVID-19 vaccine as he was not able to understand the general nature or effect of the proposed treatment. TKQ’s mother declined to provide consent due to concerns about the risks of TKQ suffering an adverse reaction from the vaccine. TKQ’s sister (the alternative guardian) also declined to provide consent. The applicant submitted that TKQ’s mother does not have the capacity to refuse consent for TKQ, due to her inability to weigh up the risks and benefits of TKQ being vaccinated against COVID-19.
Issues and outcome: (i) Part 5 of the Guardianship Act is engaged if a medical practitioner believes that a patient is not capable of giving informed consent to a COVID-19 vaccination (which is a prophylactic, and therefore “medical treatment” under the Act, s 33(1)).
(ii) Under s 36(1)(a) of the Act, substitute consent to minor or major medical treatment can be given by a “person responsible”. This term includes a person’s guardian as defined in s 33A of the Act, if the guardian has authority to provide consent to medical treatment. For most people a COVID-19 vaccination is classified as “minor treatment”. However depending on the circumstances, for some people it may be classified as “major” treatment if it poses a “substantial risk” of particular health consequences: r 10(f) of the Guardianship Regulation 2016 (NSW).
(iii) Regardless of whether the proposed treatment is minor or major treatment, the Tribunal is authorised to provide consent if satisfied that it is appropriate for the treatment to be carried out: s 44 of the Act.
(iv) The Tribunal would not usually have any role in consenting to treatment for a person who has an appropriately authorised guardian. Whilst the Tribunal is legally able to provide consent, as a matter of public policy, there must be sound reasons for the Tribunal to make a decision of this kind, rather than the guardian making the decision ([48]).
(v) The Tribunal noted that TKQ’s mother’s decision appears to be based on her fear of the vaccine, at the expense of any other relevant consideration. She gave almost no regard to the potential impact on TQK if he did not have the vaccine, and contracted COVID-19. She had not sought advice or opinions from other medical professionals, or presented evidence to support her objection to TKQ receiving the vaccine ([53]).
(vi) The Tribunal was satisfied that the decision to provide consent is consistent with TKQ’s welfare and interests and that it supports his freedom of action and ability to live as normal a life in the community as possible. The relatively small risk that he may experience a serious adverse outcome is outweighed by the clear benefit to him that the vaccine will protect him from serious health outcomes in the increasingly likely event that he contracts the virus ([56]-[57]). | PZI [2021] NSWCATGD 21 C P Fougere, Principal Member, Dr A M Berry, Senior Member, L Stewart, General Member - 5 November 2021
In sum: The Tribunal received an application from a social worker seeking the appointment of a guardian for the subject person who was 36 weeks pregnant. The Tribunal appointed the Public Guardian with authority to override the subject person’s objections to medical treatment, and to make decisions about physical restraint.
Facts: The subject person has a long history of schizophrenia and polysubstance abuse and was admitted to a public hospital under s 27 of the Mental Health Act 2007 (NSW). She expresses delusional thoughts about the pregnancy of her unborn child, at times not believing that she is carrying a child. The applicant notes that the subject person may need a number of medical interventions during the labour and delivery of her child, and will not be able to give consent. The subject person refuses to allow hospital staff to extract blood from her to assist in assessment and care.
Issues and outcome: (i) The Tribunal was satisfied that it is in the subject person’s interests for a substitute decision-maker to be appointed to make health care and medical decisions should the need arise. The Tribunal found that the appointed guardian should have the additional authority to override any objections that the subject person may have to treatment as the subject person would be at risk of not receiving necessary care due to her lack of insight and impaired decision making ([29]-[30]).
(ii) The Tribunal was also satisfied that it is in the subject person’s best interests that the guardian have authority to use physical restraint. The terms of the order make explicit that any use of physical restraint by the holding down of the subject person’s arm/s is only to occur for the shortest possible period and only for the administration of necessary medication or the taking of blood ([31]).
(iii) The guardianship order was made for three months, being the estimated length of time until the subject person gives birth and the likely period of post-partum recovery, and will not be automatically reviewed. | SZO [2021] NSWCATGD 17 J Conley, Senior Member, Dr A Baird, Senior Member, Dr J M Green, General Member – 5 September 2021
In sum: The Tribunal appointed the Public Guardian to make decisions on the use of chemical restraint to influence the behaviour of SZO (the subject person). The hearing was conducted after-hours and a short order was made for eight weeks, in light of the immediate risks to SZO.
Facts: The Tribunal received an urgent application from a doctor at a public hospital seeking the appointment of a guardian for SZO, an inpatient who has cognitive impairment associated with Wernicke’s encephalopathy and alcoholic cirrhosis of the liver. Upon being brought to the hospital due to a fall, SZO was discovered to have an unstable fracture of the spine close to the spinal cord. The applicant claimed that if SZO was to have further falls, he is at risk of the fracture moving and damaging his spinal cord, which could lead to paralysis of the lower legs. It was claimed that SZO was confused, agitated, and malnourished. He was insisting on leaving the hospital and would be at significant risk if he were to do so.
Issues and outcome: (i) The application was made on the weekend outside of the Tribunal’s usual business hours. Before conducting a hearing, the Tribunal must provide notice of the hearing to each party to the application: s 10(1A) of the Guardianship Act 1987 (NSW) (the Act). However, under s 10(2) of the Act, failure to serve a copy of an application or a notice in accordance with s 10 does not vitiate the decision of the Tribunal on the application.
(ii) SZO was not notified of the hearing until shortly before the commencement of the hearing, and declined to participate due to agitation. The Tribunal considered SZO’s right to procedural fairness and decided to proceed with the hearing, finding that if the hearing were to be delayed and not heard after-hours, SZO would be at a very significant risk. In making this decision, the Tribunal had regard to the principles in s 4 of the Act, giving paramount consideration to the welfare and interests of SZO ([8]-[10]).
(iii) The Tribunal found that there was a need to appoint a guardian as SZO had no insight into his circumstances, including the significant risks of both spinal injury and increasing cognitive impairment if he does not remain in hospital until his condition has been stabilised ([30]).
(iv) SZO required PRN medication to manage his aggressive behaviours, including attempts to assault staff. As the PRN medication is used to manage the behaviour rather than treat a diagnosed condition, it is a restrictive practice, being a chemical restraint. The Tribunal appointed the Public Guardian to make decisions about accommodation (including hospitalisation with the full authorities to authorise others to implement decisions), services, health care, medical and dental consents with the authority to override objections to medical treatment, and restrictive practices in the form of chemical restraint ([31]-[33]).
(v) The order was made for eight weeks to allow investigations to be undertaken and SZO’s condition to be stabilised. This would enable SZO to participate in the hearing at an early opportunity ([35]). | | ZUY v NSW Trustee and Guardian [2022] NSWCATAP 3 C P Fougere, Principal Member, D Charles, Senior Member, M Oxenham, General Member - 5 January 2022
In sum: The Appeal Panel dismissed an appeal by the appellant who held the genuine belief that despite evidence to the contrary he was not present at the Tribunal hearing when a financial management order was made in 2005. The Appeal Panel found that there was no error of law and no basis for granting leave to appeal the decision by the Tribunal made in February 2021, not to revoke the financial management order.
Facts: A financial management order was made in respect of the appellant in 2005, committing the management of his estate to the then Protective Commissioner, now the NSW Trustee and Guardian. That order was reviewed at the appellant’s request and confirmed on the same terms in 2018.
On 27 November 2020, the appellant filed a further request to have the order reviewed and revoked. On 11 February 2021, the Tribunal confirmed the terms of the original order. The appellant appealed against that decision on the basis that the Tribunal should have not relied on the validity of the Tribunal’s 2005 decision. This is because the appellant believes that he did not attend the hearing when the 2005 financial management order was made, and that the Tribunal had relied on the evidence of an unknown person pretending to be him. In addition, the appellant contended that the Tribunal should not have relied on evidence given by Dr Y and Dr X in 2005 because Dr Y was not qualified to make a diagnosis and Dr X’s report had purportedly been tampered with by the unknown person.
Held (dismissing the appeal): (i) The Appeal Panel was unable to identify any potential questions of law raised in the grounds of appeal as per John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69, [13]-[18]). The Appeal Panel also found that there was no basis for granting leave to appeal.
(ii) The appellant’s belief that an imposter took his place at the 2005 hearing is one that is genuinely and honestly held. However, there was no error in the manner in which the Tribunal member arrived at her ultimate decision not to revoke the financial management order. Whilst the Tribunal member did not make explicit reference to the weight she gave to the appellant’s assertion that he was not present at the hearing in 2005, the Reasons make clear that this submission was considered in the context of all of the written material, oral evidence and submissions before her ([36]).
(iii) There is no basis for concluding that the Tribunal failed to observe the principles set out in s 4 of the Guardianship Act 1987 (NSW) including giving sufficient weight to the appellant’s views (s 4(d)) (38]).
(iv) Whilst the appellant was genuine in his belief that the content of Dr Y’s report affected decisions made about him since 2005, the Reasons relating to the 2005 hearing make no reference to the content of the report or the weight given to any opinion expressed by Dr Y in that report. In addition, there was no evidence that the report had any bearing on the Tribunal’s decision ([41]-[42]).
(v) At hearing, the appellant contended that rather than Dr X’s evidence being falsified, he did not agree with the conclusions she reached. Whilst the appellant disagrees with the opinion provided by Dr X, there is no basis to support a conclusion that the Tribunal dealt with Dr X’s evidence and its role as a fact finder in anything other than an orthodox manner, otherwise made a readily identifiable error or mistake, or, that it would be unjust to allow the findings made by the Tribunal to stand ([44]). | ZJA v ZJB [2022] NSWCATAP 20 C P Fougere, Principal Member, P Molony, Senior Member, S Taylor, General Member - 27 January 2022
In sum: The appellant sought leave to appeal the Tribunal’s decision to reappoint the Public Guardian as his son’s guardian. The Appeal Panel dismissed the appeal as there was no error of law and no basis for granting leave to appeal.
Facts: On 24 August 2021 the Tribunal reviewed a guardianship order and reappointed the Public Guardian as the subject person’s guardian for a period of 12 months. The appellant sought leave to appeal on the basis that the Tribunal should have appointed the appellant as his son’s guardian, that the Tribunal’s decision was “no good”, and against the weight of evidence, and that it was “not right” for the Tribunal to “pass back” to the Public Guardian decision making authority about the subject person’s health care.
Held (dismissing the appeal): (i) There were no errors of law. The Tribunal correctly stated and applied the relevant statutory tests, gave adequate reasons for its decision and took into account relevant considerations ([19]).
(ii) There was sufficient evidence before the Tribunal to justify the conclusion reached in appointing the Public Guardian as the subject person’s guardian. It was a conclusion that was open to the Tribunal when assessing the appellant’s ability to perform the role in accordance with the duty imposed under s 4 of the Guardianship Act 1987 (NSW)([26]).
(iii) The Appeal Panel did not accept the appellant’s submission that the Tribunal gave insufficient weight to the appellant’s request to be appointed as guardian. In refusing leave to appeal, the Appeal Panel stated that the appeal did not raise a matter of administration or policy which might have general application, that the Tribunal adopted an orthodox approach to the conduct of the hearing, did not make a readily identifiable error or mistake, nor would it be unjust to allow the Tribunal’s findings to stand ([26]). | ZVN v ZVO [2022] NSWCATAP 57 C P Fougere, Principal Member, J S Currie, Senior Member, J Le Breton, General Member - 2 March 2022
In sum: The appellant brought an appeal against the decision of the Tribunal to reappoint the Public Guardian, as the subject person’s guardian. The appellant contended that decisions could be made informally for the subject person’s benefit, without the need for a guardian. She also contended that if a guardianship order were to be made, she should be appointed as guardian. The Appeal Panel dismissed the appeal, finding that there was no error of law and no injustice that would warrant granting leave to appeal.
Facts: The subject person is a 90-year-old woman who has been diagnosed with dementia. In July 2020 a guardianship order was made, appointing the Public Guardian as the subject person’s guardian for 12 months, with accommodation, health care and services functions, including the ability to authorise others to authorise others to implement accommodation decisions for her. On 19 May 2021, the Tribunal held an end-of-term review of the guardianship order and made an order reappointing the Public Guardian for a further two years.
The appellant is a friend of the subject person. She contended that the Tribunal failed to provide adequate reasons for its decision, that she was denied procedural fairness at the hearing as she was not given sufficient time to state her case, that the Tribunal had misapplied s 17(1) of the Guardianship Act 1987 (NSW), made a material finding of fact ‘against the weight of evidence’, failed to take into account mandatory considerations, and made a decision so unreasonable that no reasonable decision-maker would have made it.
The Notice of Appeal was lodged three days out of time. The Appeal Panel exercised its power under s 41 of the Civil and Administrative Tribunal Act 2013 (NSW) to extend the time for lodgement, noting that each respondent consented to the extension of time.
Held (dismissing the appeal): (i) The Tribunal’s reasons were adequate: Baker v David [2015] NSWCA 235 and Stoker v Adecco Gemvale Constructions Pty Ltd & Anor [2004] NSWCA 449. In assessing the adequacy of reasons given by the Guardianship Division, regard can properly be had to the nature of the function being exercised by that Division and its established and recognised informality of procedure: see s 38(4) of the Civil and Administrative Tribunal Act 2013 (NSW)([51]-[54]).
(ii) The appellant was given a reasonable time opportunity to present her case as confirmed by the sound recording of the hearing ([60]-[62]).
(iii) The Tribunal had properly applied s 17(1) of the Guardianship Act. That part of the reasons which dealt with the issue of who should be appointed as guardian, read as a whole, reveal that in making findings of fact, the Member turned her mind to the available evidence ([74]-[78]).
(iv) A finding of fact can give rise to an error of law only where there was no evidence to support that finding: John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [13]. There was evidence to support the Tribunal’s finding that the subject person is open to suggestion and that her views can vary ([82]).
(v) The Tribunal’s decision was unfavourable to the appellant and she strongly disputes it. However, that does not make the decision unreasonable to “the very high standard” required in order to establish an error of law ([86]). | ZVS v ZVT [2022] NSWCATAP 71 J S Currie, Senior Member, J D’Arcy, Senior Member, S Taylor, Senior Member - 16 March 2022
In Sum: The Appeal Panel allowed the appeal, finding that the appellant was deprived of procedural fairness, on the basis that her Mackenzie Friend had been removed from her presence during the hearing before the Tribunal.
A "McKenzie Friend" assists a party before the court by, for example, making notes and giving suggestions or advice to the litigant in person but does not perform the role of an advocate or representative”: per McClure JA in Scarce v Killalea [2003] WASCA 81, cited by the Appeal Panel at [44]. See also, Guardianship Division’s Representation Guidelines, August 2017, paragraph [32].
Facts: The subject person appointed her husband and two daughters under both an Enduring Guardianship Appointment (EGA) and Enduring Power of Attorney (EPA), to act jointly and severally to make decisions on her behalf. Following a dispute between family members, the subject person’s son in law applied to the Tribunal for a review of the EGA and the EPA. On review, the Tribunal heard allegations from the appellant’s sister that the appellant had wrongfully dealt with her mother’s funds. It was alleged that when her mother was moved to an aged care facility, the appellant placed her mother’s possessions in boxes and left them with her then partner, who had offered to store them in his shed. Upon the breakdown of their relationship, the appellant later discovered that the boxes were placed in paid storage at a cost of $250 per month. Her former partner initiated proceedings for the recovery of the costs of storage, and the appellant negotiated a settlement of the claim for a sum considerably less than that claimed. The Tribunal found that the appellant had demonstrated a lack of transparency around this issue, which had significant cost to her mother’s estate and had occurred without the consultation of her sister. The Tribunal concluded that the appellant and her sister could not work together and made an order appointing a guardian and removing the appellant as one of the subject person’s attorneys.
Grounds of appeal: (1) Whether by directing the McKenzie Friend to move away from the Subject Person during the hearing, the appellant was denied the benefit of legal and strategic advice and direction, and, in turn, procedural fairness.
(2) Whether the Tribunal failed to afford the appellant a fair hearing by not giving her sufficient time to present her case and to respond adequately to allegations made by other family members.
Held (allowing the appeal): (i) The role of a McKenzie Friend in Guardianship Division proceedings is explained in the Guardianship Division’s Representation Guidelines, issued in August 2017, which states: “A legal practitioner may attend the hearing with their client and act as their Mackenzie Friend. In this role, a legal practitioner can support their client during the hearing by making notes, helping their client to organise their papers or giving advice or prompts during the hearing. However, the legal practitioner does not have a right to participate in the proceedings as an advocate” ([41]).
(ii) The removal of the appellant’s Mackenzie Friend from her presence constituted a failure by the Tribunal to afford procedural fairness to the appellant, in that it denied her access to legal advice and counsel to which she was entitled and which her Mackenzie Friend could have provided. This in turn, effectively denied the appellant the opportunity to present her case and explain her actions more completely. This constituted an error of law as described in Mackenzie v Mackenzie [1970] 3 All ER 1034 ([55]-[60]).
(iii) Leave to appeal was allowed and the matter was remitted for hearing by a differently constituted Tribunal. The Tribunal’s orders of 7 July 2021, including the appointment of a guardian and the removal of the appellant as attorney, are to continue in force until further order of the Tribunal. | ZUZ v ZVA [2022] NSWCATAP 79 C P Fougere, Principal Member, D Charles, Senior Member, M Oxenham, General Member - 24 March 2022
In sum: The Appeal Panel dismissed an appeal from the decision of the Tribunal to treat a review of an enduring power of attorney (EPA) as an application for a financial management order and to commit ZUZ’s estate to the management of the NSW Trustee and Guardian. There was no error of law in the Tribunal’s findings that the attorney had placed herself in a position of a conflict of interest by purchasing a dwelling under her own name, using finances from the principal’s estate.
Facts: The appellant (ZUZ) is the stepdaughter of the respondent (ZVA). In 2012, ZVA made an EPA appointing his son and ZUZ as his attorneys on a joint basis. In 2014, ZUZ became the sole attorney after ZVA’s son resigned his appointment in writing.
In late 2020, ZVA’s wife lodged an application to have the EPA reviewed on the basis that ZUZ had dealt inappropriately with ZVA’s funds. The Tribunal decided to conduct a review of the operation and effect of the EPA, under 36(1) of the Powers of Attorney Act 2003 (NSW). This was due to allegations that ZUZ had sought to hide ZVA’s assets from his creditors, and purchased a moveable dwelling for ZVA, in her own name, creating a conflict of interest. ZUZ contended that she did this to prevent ZVA’s wife from being able to sell the dwelling and put it at risk.
The Tribunal may treat certain applications for review of power of attorney as an application for a financial management order, where it is “appropriate in all the circumstances to do so”: s 37 of the Powers of Attorney Act. The Tribunal found that it was appropriate to treat the application as an application for a financial management order on the basis that ZUZ should not continue to control ZVA’s estate, due to her refusal to contemplate transferring the dwelling into the joint ownership of her parents. The Tribunal found that ZUZ’s explanation for not transferring the dwelling into the joint ownership of her parents did not address the issue of her own interests.
The Tribunal made a financial management order, committing ZVA’s estate to the management of the NSW Trustee and Guardian. ZUZ brought an appeal from that decision, seeking orders to regain authority to manage ZVA’s estate under the EPA. ZUZ contended that the Tribunal had misapplied s 66G of the Conveyancing Act 1919 (NSW) and that she was denied procedural fairness because the Tribunal members were biased against her.
Held (dismissing the appeal): (i) Even if it is accepted that the Tribunal had assumed incorrectly that a refusal by ZUZ to agree to the sale of the moveable dwelling would be sufficient to prevent its sale: s 66G of the Conveyancing Act, that assumption was not material to the decision to decline to make any orders under s 36(4) of the Powers of Attorney Act. Regardless of the explanation given by ZVA for her actions, continuing to hold an asset in her own name that is rightly part of ZVA’s estate, gives rise to a conflict of interest between her interests and those of ZVA ([56]-[58]).
(ii) Whilst the Tribunal made findings that are adverse to ZUZ, this does not support ZUZ’s claim of apprehended bias ([70]). The applicant has not discharged the “heavy onus” of establishing actual bias or apprehended bias: see Wootten v Godfrey [2019] NSWCATAP 255 at paragraphs [24]-[30]).
(iii) Under the Powers of Attorney Act, a power of attorney confers on the attorney, “the authority to do on behalf of the principal anything that the principal may lawfully authorise the attorney to do”: s 9(1). ZUZ acted in excess of that authority by actively seeking to hide ZVA’s estate from his creditors.
(iv) An attorney must act in the best interests of the principal and must not obtain a personal benefit other than specifically provided for in the executed enduring power of attorney: Powers of Attorney Act, s 12(1). The Tribunal found that ZUZ had obtained a benefit which was the legal ownership of the dwelling and had created a situation of conflict of interest. These findings were open to the Tribunal to make [99].
(v) ZUZ signed the contract in her own name and is the legal owner of the dwelling. As the legal owner, ZUZ could deal with the dwelling in whatever manner she wished, including in a manner that benefited her if she so chose. ZVA’s attorney is the only person who has legal authority to act on his behalf. It was open to the Tribunal to find there is a conflict of interest if ZUZ continued to act as ZVA’s attorney because she would be the same person against whom action would need to be brought to enforce ZVA’s rights as the beneficiary of a purported constructive trust [102]. | ZWI v Public Guardian [2022] NSWCATAP 84 A Britton, Deputy President, J Moir, Senior Member, I Beale, General Member – 28 March 2022
In sum: Under s 25(2)(a) of the Guardianship Act 1987 (NSW), the Tribunal must review each guardianship order at the request of any person entitled to request a review of the order. However, the Tribunal may refuse a request to review a guardianship order if in its opinion, the request does not disclose grounds that warrant a review, or the Tribunal has previously reviewed the order: s 25A.
The Appeal Panel found that the Tribunal had misconstrued s 25A of the Guardianship Act. The Appeal Panel considered the proper construction of that provision, finding that the meaning of the term “order” is not confined to an “initial order”. Therefore, it was not open to the Tribunal to refuse to review a renewed order on the basis that the initial order had been reviewed. The Appeal Panel considered afresh the request made by the Appellant to review the guardianship order and dismissed the appeal.
Facts: Since May 2019 the subject person has been the subject of guardianship and financial management orders made by the Tribunal. In July 2021, after conducting an end-of-term review of the guardianship order made in December 2020, the Tribunal renewed that order for a period of 12 months, reappointing the NSW Public Guardian to act as the subject person’s guardian to make decisions about her accommodation, access, health care and services.
The appellant is the daughter of the subject person. The day after the order was renewed, the appellant, husband, and grandson of the subject person requested the Tribunal to review the July 2021 guardianship order. In September 2021, a differently constituted Tribunal refused to review that order, finding that “the Tribunal has previously reviewed the order” (par (b) of s 25A) and therefore the discretion to refuse the request for review was enlivened. The Tribunal interpreted the words “the order” to mean the initial order made in May 2019 ([103]).
The appeal was brought by the appellant and the husband against:
(1) the decision made in July 2021 to renew the guardianship order, and (2) the subsequent decision made in September 2021, by a differently constituted Tribunal, to refuse to review the July 2021 guardianship order.
Held (dismissing the appeal) (i) Neither the appellant nor the husband was a party to the July 2021 review proceedings and therefore were not entitled to bring an appeal against the decision made in those proceedings, that is, the decision to renew the guardianship order made in December 2020.
(ii) In exercising the power to refuse the request to review the July 2021 guardianship order, the Tribunal misconstrued s 25A of the Guardianship Act, specifically the meaning of the term “order” ([96)]. The term “guardianship order” in s 25A means an initial guardianship order, or where that order has been renewed, the renewed order ([104]-[110]).
(iii) By interpreting the terms “guardianship order” and “the order” in s 25A to mean the initial guardianship order made in May 2019, the Tribunal incorrectly found that a Tribunal had previously reviewed the July 2021 guardianship order. It was not open to the Tribunal to exercise the discretion conferred by s 25A to refuse the request to review that order on the grounds that the order had been reviewed ([111]).
(iv) The September 2021 decision was set aside and the Appeal Panel considered afresh the request made by the appellant and the husband to review the 2021 guardianship order. The Appeal Panel exercised its discretion under s 25A of the Guardianship Act not to review the July 2021 guardianship order because the proposed guardians had failed to provide evidence of their suitability to be appointed as guardians, being the sole issue they sought to agitate. The Appeal Panel had regard to the guiding principle to facilitate the just, quick and cheap resolution of the real issues in the proceedings and found that to conduct a review in these circumstances would be an exercise in futility ([124]).
(v) The Appeal Panel was not satisfied that the grounds of appeal warrant a new hearing under s 80(3) of the Civil and Administrative Tribunal Act 2013 (NSW). The appellant contended that there is “fresh evidence” that the Public Guardian has not complied with the December 2020 orders, and that the imminent sale of the family home means accommodation decisions need to be made. The Appeal Panel found that even if the purported evidence could be described as “fresh” in the sense used in ZND v ZNE [2020] NSWCATAP 34, the material is relevant to the merits of the decisions made by the Public Guardian, and not to the appropriateness of the decision not to review the decision to reappoint the Public Guardian under the July 2021 guardianship order ([125]-[128]). | ZXA v ZXB [2022] NSWCATAP 97 K Ransome, Senior Member, R Booby, Senior Member, S Johnston, General Member - 31 March 2022
In sum: An appeal was brought against the decision of the Tribunal to make a financial management order, committing ZXA’s estate to the management of the NSW Trustee and Guardian. The Appeal Panel dismissed the appeal, finding that there was no error of law and no injustice that would warrant granting leave to appeal the decision.
Facts: The appellant (ZXA) is a permanent resident of an aged care facility. The Care Manager of the facility (ZXB) made an application for a financial management order on the basis that ZXA’s aged care fees were in arrears and payments were irregular and insufficient. The application stated that ZXA’s finances were being informally managed by her daughter (ZXC), that ZXA had no access to her own funds and was at risk of financial abuse. ZXA owned a relocatable home. In June 2021, the Tribunal was advised that the home needed to be sold but required repairs. The sale would be used to pay off debts and allow ZXA to make a decision about where she might live. The Tribunal adjourned the matter twice. At the hearing in October 2021 the property had not been sold, no further payments had been made to the aged care facility, and the fees were still in arrears.
On 26 October 2021, the Tribunal made a reviewable financial management order, committing ZXA’s estate to the management of the NSW Trustee and Guardian for 12 months. ZXA appealed against this decision on the grounds that ZXB did not have standing to bring the financial management application, and that the decision not to appoint ZXC as her financial manager, involved errors of law.
Held (dismissing the appeal): (i) An application to the Tribunal for a financial management order may be made by the NSW Trustee, the person who is the subject of the application, or any person who, in the opinion of the Tribunal, has a genuine concern for the welfare of the person who is the subject of the application: s 25l of the Guardianship Act 1987 (NSW). The Tribunal made no error in accepting that ZXB had standing to bring the application in that she had a genuine concern for the welfare of ZXA ([22]).
(ii) It is not necessary to find that a person has a disability before making a finding that the person is not capable of managing their own affairs. The focus is instead on the functionality of a person’s management capacity and the question as to whether a person is capable of managing his or her affairs will require a judgment call, based on a close examination of the facts of the particular case, as well as the relevant legislation: Lindsay J in P v NSW Trustee and Guardian [2015] NSWSC 579 at paragraph [312].
(iii) On the available evidence, it was reasonably open to the Tribunal to conclude that ZXA was at least partially incapable of managing her own affairs as she had been unable to resolve her financial issues with Centrelink and her aged care fees, and was reliant upon others, particularly her daughter, to do so ([31]-[33]).
(iv) The Tribunal’s reasons for decision state that ZXC did not nominate herself to act as her mother’s financial manager. In any event, the Tribunal did not consider ZXC was suitable as the formalisation of the existing informal arrangement would not have assisted in resolving outstanding matters. There was no error in the Tribunal finding that there was a need for a financial manager who had a greater familiarity with the various bureaucratic processes involved, as well as the ability to communicate more constructively and manage ZXA’s affairs more objectively ([44]). | ZWA v ZWB [2022] NSWCATAP 113 J S Currie, Senior Member, J D’Arcy, Senior Member, S Taylor, Senior Member - 13 April 2022
In Sum: The Appeal Panel allowed the appeal and remitted the guardianship application to the Guardianship Division for re-hearing by a differently constituted Tribunal, finding that the Tribunal had misapplied the statutory criteria for the appointment of a guardian. By engaging in a “dispute resolution process” the Tribunal had fallen into legal error by identifying the wrong issue, asking the wrong questions and failing to take into account mandatory considerations, specifically sections 4, 15(3) and 17(1) of the Guardianship Act 1987 (NSW).
Facts: The appellant is the daughter of the respondent (the subject person). In 2018, the subject person appointed the appellant and her sister (ZWC) jointly as her enduring guardians, and jointly and severally as her attorneys. On 22 June 2021, the appellant applied to the Guardianship Division for guardianship and financial management orders for the subject person, seeking to be appointed as the subject person’s guardian. In the context of family conflict, the Tribunal made a guardianship order appointing the appellant and ZWC’s sister, ZWD, as guardian.
The appellant appealed from the Tribunal’s decision on the basis that the Tribunal had erred in appointing ZWD as guardian and not the appellant. The Appeal Panel identified the following potential errors of law as requiring further consideration:
(1) Whether, in determining the identity of the guardian, the Tribunal had failed to take into account mandatory considerations; and
(2) Whether the Tribunal in deciding who to appoint as guardian, identified the wrong issue or asked the wrong question.
Held (allowing the appeal): (i) The Appeal Panel considered the statutory criteria which the Tribunal must apply in making determinations about whether a person can be appointed as a guardian under Division 3 of Part 3 of the Guardianship Act. Those criteria appear in four distinct provisions of that Act: sections 4, 15(3), 16(1) and 17(1). Of particular relevance is the need for the Tribunal to demonstrate that it has taken into account the section 4 principles ([37],[51])
(ii) The Tribunal fell into legal error, in that it had failed to take into account mandatory considerations; and, failed to reach a decision about the identity of the guardian in accordance with the relevant provisions of the Guardianship Act ([59]).
(iii) The Tribunal failed to identify adequately the section 4 principles on which it relied and failed to demonstrate that it had considered each relevant principle ([60](1), [62]-[66]).
(iv) The Tribunal conducted what was essentially a dispute-resolution exercise in an attempt to identify a consensus or failing that a majority view within the family as to who should be appointed. Adopting that approach led the Tribunal to overlook the statutory criteria for the appointment of a guardian; in particular to consider the criteria reflected by the section 4 principles ([60](2), [67]-[70]).
(v) Further, by adopting that approach, the Tribunal dismissed the possibility of the appointment of the Public Guardian on the basis that that was opposed by most if not all family members. It should instead have asked whether there was any private person who was willing and “able” to act as guardian, and if there was such a person by appointing that person: s 17(1) of the Guardianship Act. If there was no such person then, given the Tribunal’s finding that a guardianship order should be made, it should have appointed the Public Guardian ([60](3), [75]-[79]). | Supreme Court of New South Wales | Attorney General of New South Wales v Skerry (by his tutor Ramjan) (Final) [2022] NSWSC 9 N Adams J – 11 February 2022
In Sum: In determining whether to make an order extending the status of Mr Skerry as a forensic patient, the Court considered the regimes under the Mental Health Act 2007 (NSW) and the Guardianship Act 1987 (NSW). The Court found that a guardianship order was not adequate to manage Mr Skerry’s risk to the community, as this purpose is inconsistent with the principles set out in section 4 of the Guardianship Act.
Facts: Mr Skerry is a 54 year old man, who has schizophrenia, substance use disorder and cognitive impairment. He had a number of previous admissions to psychiatric hospitals in Sydney, and a lengthy criminal history including assault and drug related offences. He was first admitted as a forensic patient in 2012, with the order being extended by a further three years in 2015 and again in 2018. The Attorney General of NSW sought an order for the third extension of Mr Skerry’s status as a forensic patient under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW). Under that Act, an extension order can be made if the forensic patient poses an unacceptable risk of causing serious harm to others if the patient ceases to be a forensic patient (s 122(a)), and the risk cannot be adequately managed by other less restrictive means (s 122(b)).
Issues and outcome: (i) The Court was satisfied to a high degree of probability that the Mr Skerry poses an unacceptable risk of causing serious harm to others having regard to factors including his persistent psychotic beliefs and recent instability, his lack of insight into his offending and lack of insight into his illness and need for treatment ([90]). The principles for assessing the “unacceptable risk” and “serious harm” are set out by the Court in paragraphs [76]-[79].
(ii) The meaning of “adequately managed by less restrictive means” is explained by Garling J in Attorney-General of NSW v McGuire [No 2] [2014] NSWSC 288 at paragraph [64]. Section 122(b) is satisfied where the community’s interest in being kept safe is outweighed by the community’s interest in not having the forensic patient being confined in institutional care ([81]).
(iii) The Court was not satisfied that a Community Treatment Order (CTO) made under s 56 of the Mental Health Act 2007 (NSW), on its own, or in conjunction with a guardianship order, would suffice to manage Mr Skerry’s risk. A CTO only covers decisions related to mental health care, while a guardianship order permits decisions to be made on Mr Skerry’s behalf in areas beyond the scope beyond the CTO, such as restrictive practices in the form of seclusion and restraint during times of mental destabilisation. The Court’s reasons for finding that a community treatment order (CTO) made under the Mental Health Act 2007 (NSW) is not suitable, is summarised in paragraphs [93]-[101].
(iv) The Court was not satisfied that a guardianship order, made in conjunction with a CTO, would adequately manage the risk posed by Mr Skerry. The Court found that the Public Guardian could not adequately manage the risk posed by Mr Skerry because he or she would be required to give paramountcy to Mr Skerry’s welfare and interests and only make decisions which restricted Mr Skerry’s freedom of decision and action as little as possible: Guardianship Act s 4. In addition, the Public Guardian is not obliged to consider the safety of the community. Further, the Public Guardian’s role is “decision specific” as opposed to taking a holistic approach to Mr Skerry’s future case management needs ([102]-[104]).
(v) The Court made an order extending the status of Mr Skerry as a forensic patient, for a period of three years from 13 February 2022.
| Moser v Ky [2021] NSWSC 1634 Sackar J – 15 December 2021
In sum: The Court held that the revocation by the plaintiff of his appointment of the defendant as his attorney and enduring guardian was valid as there was clear evidence that he had the capacity to revoke those appointments. The Court also found that the attorney had acted unconscionably by taking advantage of the plaintiff’s vulnerable state and securing control over the plaintiff and his money.
Facts: The plaintiff is an 87 year old man with no children and no relatives living in Australia. In October 2018, he executed an Enduring Power of Attorney (EPA) and an Appointment of Enduring Guardian (EGA) appointing the defendant, his friend and accountant, as his attorney. Between 2020 and 2021, the plaintiff made three payments to the defendant totalling $13,000, purportedly as gifts. On 19 February 2021, an amount of $48,510 was paid to the defendant by the plaintiff. The defendant used his authority as attorney to open a joint account in his name and that of the plaintiff. The plaintiff could not access that account without the defendant’s permission. On 6 March 2021, the plaintiff executed revocations of the EPA and EGA. The main issues before the Court were whether the EPA and EGA were validly revoked and whether the money paid to the defendant during 2020 to 2021 were procured by undue influence, unconscionable conduct, were otherwise in breach of fiduciary duties, or, give rise to a claim in restitution.
Issues and outcome: (i) The Court held that the revocation of the Power of Attorney on 8 March 2021 was effective, noting: evidence from a geriatrician found the plaintiff to be mentally clear, exhibiting the ability to reason and deliberate about his choices. He was found to be competent in making decisions in all areas of financial management and was capable of understanding and signing legal documents and a will ([97]-[98]). there are no formal requirements in the Powers of Attorney Act 2003 (NSW) for what a revocation should contain. The documents were prepared by a solicitor who witnessed the plaintiff’s signature. The revocations were expressed in clear terms and the language is unambiguous. The fact that the attorney does not accept the revocations is not relevant to its validity ([100]-[101]). it is clear on the evidence that the plaintiff became heartily sick and tired of the defendant’s controlling behaviour and wanted to put an end to it. However, the plaintiff’s motive in revoking the powers is not relevant to its validity, if he had capacity to do so. ([94], [99]).
(ii) The Court ordered that the defendant take all necessary steps to remove his name from, and renounce authority to operate, any bank account in the name of the plaintiff and any account jointly held. The Court found that the amount of $48,510 was procured by the defendant as a result of undue influence and/or unconscionable conduct and ordered that it be repaid to the plaintiff with interest ([128]).
(iii) The Court provided a useful summary of the legal principles relating to: the presumption of a gift ([43]-[45]); undue influence ([46]-[53]); unconscionable conduct (54]-[56]); and obligations to litigants-in-person ([57]).
| | Fairbairn v Radecki [2022] HCA 18 Kiefel CJ, Gageler, Keane, Gordon, Edelman, Steward, Gleeson JJ - 11 May 2022
In Sum: The Court held that in determining whether there is a “breakdown of a de facto relationship” for the purpose of s 90SM of the Family Law Act 1975 (Cth), regard must be had to all the circumstances. The cessation of cohabitation and one party’s decline in cognitive ability are relevant factors, but are not determinative of whether a de facto relationship has broken down.
Facts: The appellant and respondent commenced a de facto relationship in late 2005 or early 2006. The appellant was diagnosed with dementia in 2017 and suffered rapid cognitive decline. After that diagnosis was made, the respondent arranged for the appellant to replace an existing enduring power of attorney with one appointing him and the appellant's brother as attorneys. The new enduring power of attorney gave the respondent considerable control over the appellant’s assets, including her home. In addition, the respondent arranged for a solicitor to attend upon the appellant while she was hospitalised for the purpose of drawing an updated will, which markedly favoured his financial interests.
Over the respondent’s opposition, NCAT made a guardianship order appointing the Public Guardian as the appellant’s guardian. In addition, NCAT made a financial management order, committing the appellant’s estate to the management of the NSW Trustee and Guardian. The Trustee sought to sell the appellant’s home to fund her ongoing care in an aged care facility. The respondent opposed that proposal and remained living in the home. The Trustee sought property settlement orders alleging that the de facto relationship had broken down, enlivening the jurisdiction of the Court to make property settlement orders: s 90SM of the Family Law Act.
A “de facto relationship” is defined in s 4AA of the Family Law Act. The appellant argued that s 4AA(1)(c) of that Act requires cohabitation at some place and that permanent cessation of cohabitation, whether voluntarily or involuntarily, was said to result in every case in a de facto relationship ending. The Federal Circuit Court held that the relationship had broken down by reference to the respondent’s conduct, when he refused to permit the Trustee to sell the home and suggested that the cost of her care be paid from the appellant’s superannuation while he remains living in the home. The Full Court of the Family Court of Australia disagreed, finding that the respondent’s conduct was not inconsistent with a continuing de facto relationship.
Held (allowing the appeal): (i) The Court held that physical cohabitation is not a necessary feature of “living together”. Two people, for any number of reasons, may not reside in the same residence, but nonetheless be in a de facto relationship in the sense required by s 4AA ([33]). The reference to “living together” in s 4AA should be construed as meaning sharing a life as a couple. Its language is sufficiently broad to accommodate the great variety of ways a de facto relationship may exist and does not assume that every de facto relationship must have a “common residence” ([39]).
(ii) Involuntary and enduring separation due to illness will not always justify a conclusion that a relationship has ended. In Stanford v Stanford [2012] HCA 52 (per French CJ, Hayne, Kiefel and Bell JJ), the Court decided it was not just and equitable to make property settlement orders where the wife had developed dementia and moved into full-time residential care, but where the husband who remained at the residence had made “necessary or desirable adjustments” to continue to provide for her. However, where one party fundamentally acts contrary to the interests of the other in relation to the property of the couple, it may be possible to conclude that the mutual commitment to a shared life has ceased ([37]-[38]).
(iii) The appellant’s mental incapacity and her move into a permanent aged care facility are not determinative of a breakdown of the de facto relationship. For the purposes of ss 90SM and 4AA of the Act, having regard to all of the circumstances, including the conduct of the respondent, the de facto relationship between the parties had, by no later than 25 May 2018, broken down ([42]-[43]). While there had been a degree of mutual commitment to a shared life, that commitment ceased when the respondent refused to make the “necessary and desirable adjustments” in support of the appellant, and by his conduct, acted contrary to her needs ([46]). | | Inquest into the deaths of Judith Chrupalo & Christopher Clee Coroner’s Court of New South Wales at Lidcombe Magistrate Derek Lee, Deputy State Coroner - 23 December 2021
In Sum: An inquest was held under the Coroners Act 2009 (NSW), after Mrs Judith Chrupalo (aged 74) and Mr Christopher Clee (aged 55) were found dead inside their home in Dubbo on 9 March 2016. The home showed signs of squalor, poor living conditions, and neglect. It was apparent that Mrs Chrupalo and Mr Clee were deceased for a significant period of time and the cause of their deaths could not be ascertained.
Under s 82 of the Coroners Act, a coroner may make recommendations about any issues in connection with the investigation that may adversely impact upon the safety and wellbeing of the wider community. As part of the coronial investigation, the Coroner examined the actions taken by Dubbo Base Hospital, Lourdes Hospital and Community Health Service (Lourdes) and the NSW Public Guardian, who were all involved in the care of Mrs Chrupalo and Mr Clee in late 2015 to early 2016, and made a number of recommendations.
Facts: Mrs Chrupalo was being cared for at home in Dubbo by her son, Mr Clee. Both Mrs Chrupalo and Mr Clee were heavy drinkers, and both had previously attended hospital for alcohol related issues. Mrs Chrupalo was taken by ambulance and admitted to Dubbo Base Hospital twice in 2015. On the first occasion, she was admitted on 12 June 2015 and discharged on 17 June 2015 (First Admission). She was again admitted on 19 June 2015 and discharged on 8 July 2015 (Second Admission). As a result of an Aged Care Assessment Team (ACAT) assessment conducted on 29 June 2015, Mrs Chrupalo was found to have “mild cognitive changes” and scored 23/30 on the Mini-Mental State Examination (MMSE). She was approved for permanent residential care and residential respite care, due to her very high level care requirements. However, she chose not to accept care outside the home and self-discharged from hospital against medical advice. A second ACAT assessment was conducted at Mrs Chrupalo’s home on 16 July 2015. Following that assessment, she was approved for permanent residential care, residential respite care and Home Care Packages Level 3 and 4. There was information available to the hospital which indicated that Mrs Chrupalo may have been the subject of elder abuse, carer neglect or self-neglect.
In July and August 2015, Mrs Chrupalo was visited by Lourdes’ community nurses and staff who held continuing concerns about her living conditions and neglect. On 26 August 2015, Ms Kaylene Green made a guardianship application to NCAT. On 18 September 2015, Mrs Chrupalo was discharged from Lourdes’ services after community nurses made multiple attempts to attend the property, but were refused entry by Mr Clee.
On 8 October 2015, the Tribunal made a guardianship order appointing the Public Guardian as Mrs Chrupalo’s guardian for three months with accommodation, health care, medical and dental consent, and services functions. On 7 January 2016 the Tribunal conducted an end-of-term review of that order and decided not to renew the order. Thereafter, no one from the Public Guardian, Lourdes or the Hospital contacted Mr Clee or Mrs Chrupalo. The Coroner’s findings indicate that Mrs Chrupalo and Mr Clee died sometime between 16 February 2016 and 2 March 2016.
Findings: The Coroner made findings about the actions and inactions of Dubbo Base Hospital, Lourdes and the NSW Public Guardian, which reflect a failure to provide Mrs Chrupalo with sufficient care. Relevantly, these include:
Deficiencies in the capacity assessment performed by the Doctor at Dubbo Base Hospital, which was rushed and done at short notice ([9.30]-[9.39]). Mrs Chrupalo was discharged home without having been referred to any services to provide support. When it became clear that Mrs Chrupalo and Mr Clee would not accept permanent residential care, the hospital did not develop a strategy to ensure her short and long-term needs were met following discharge from hospital ([10.2]-[10.9]). Failure by hospital staff to identify the possibility of elder abuse, particularly during Mrs Churpalo’s second admission ([10.12]-[10.19]). The hospital staff had limited understanding of when to make a guardianship application as the Guardianship Application Guidelines are inconsistent with the Guardianship Act 1987 (NSW). E.g. the Guardianship Application Guidelines state that the Tribunal must have evidence of incapacity before appointing a guardian. The requirement of mental incapacity for making a guardianship application is inconsistent with the statutory requirements that a person have a disability and be totally or partially incapable of managing his or her person ([9.22]). Lourdes should not have discharged Mrs Chrupalo from its services until at least the Public Guardian was appointed ([11.1]-[11.16]). Lourdes’ staff had a limited understanding of the guardianship process ([13.20]). The Public Guardian failed to make enquiries in relation to what services were required and what decisions needed to be made for Mrs Chrupalo, despite knowing that Mrs Chrupalo was a person with very high care needs who had not been provided with any community services for more than two months ([14.22]-[14.23], [14.29]). The Public Guardian did not make relevant enquiries, perform any risk assessment or make any attempt to arrange alternate support services or to appoint a case manager for Mrs Chrupalo ([14.48], [14.66]).
A number of findings were made in relation to the guardianship application. This included that the hospital should have made an application for a guardianship order prior to Mrs Chrupalo’s discharge, however, there was a lack of understanding by hospital staff about when a guardianship application can be made. For example, it was noted that the “threshold for making those applications was perceived to be higher” in terms of the subject person’s capacity and level of risk ([9.10]). In addition, an application should have been made by the Public Guardian to extend the order and the Tribunal should have been informed of the limitations of information about Mrs Chrupalo’s resistance to the assistance of outside services ([14.56]-[14.60]).
Further, the Public Guardian and the hospital should have made an application for a coercive order, such as a coercive accommodation function or power to override a person’s objections to medical treatment. However, the Tribunal was not in a position to assess those authorisations given that Mrs Chrupalo had not had a full capacity assessment, the Tribunal did not have detailed reports about the current situation, and had not spoken to Mrs Chrupalo ([14.61]-[14.63]).
The Coroner noted that the Tribunal was presented with information about alleged ‘threats’ made by Mr Clee and Mrs Chrupalo towards service providers, that were potentially misleading without clarification ([13.6]-[13.11]).The Public Guardian also made “unqualified submissions” to the Tribunal that were not supported by objective evidence and were not checked for accuracy. For example, submissions were made that service providers were not willing to work with Mrs Chrupalo and Mr Clee, and that Mrs Chrupalo was “resistant to their services”. These submissions were central to the Tribunal’s consideration of whether the guardianship order should be extended ([14.49]-[14.55]).
Recommendations: The Coroner made a number of recommendations to NSW Health, Western NSW Local Health District, Lourdes, and the NSW Trustee and Guardian. These include recommendations that the hospitals review procedures for discharge against medical advice, and provide training in relation to elder abuse, neglect and exploitation of patients.
The following recommendations are relevant to the Guardianship Division:
That NSW Health review The Guardianship Application Process for Adult Inpatients in NSW Health Facilities (GL2017_013) in relation to the requirements for making an application under the Guardianship Act, particularly in relation to the concept of disability, including physical disability, and the Health Guardianship Project. That Dubbo Base Hospital and Lourdes introduce procedures and provide training to staff in relation to guardianship applications that set out: (a) the circumstances in which it is necessary to make an application; (b) who is responsible for coordinating such an application; (c) the requirements for guardianship applications, including the reports to be provided to NCAT to support the application and guardianship process (whether a Public Guardian is appointed); (d) the role of the Public Guardian once appointed, and (e) coordination with the office of the Public Guardian in relation to the Health Guardianship Project. That Dubbo Base Hospital introduce written procedures and provide training in relation to elder abuse, neglect and exploitation of patients, which provides guidance on the indicators, the means of responding, and the duty of care and responsibilities of staff. Such procedures and training would refer to the procedures relating to appointment of the Public Guardian or a hospital guardian, the availability of assistance from the Ageing and Disability Commission and the operation of the Health Guardianship Project. That the NSW Trustee and Guardian provide training to staff within the office of the NSW Public Guardian in relation to the Policy: Recognising and responding to allegations of violence, abuse, neglect and exploitation of customers.
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