Guardianship Orders and Genuine Concern

  • 23 Nov 2017
  • 23 Nov 2017
In a recent decision, the Guardianship Division of the NSW Civil and Administrative Tribunal (the Tribunal) were asked to determine whether Calvary Health Care (Newcastle) Limited (CHCN) had the necessary standing to apply for a guardianship order in relation to a patient. The same issues were considered in a decision by the Tribunal earlier this year in relation to whether a Local Health District had standing to make such an application (NEJ [2017] NSWCATGD 1). We reported on that decision in our blog in February 2017.
In this matter the Tribunal had received an application for the appointment of a guardian from a social worker, on behalf of Calvary Health Care (Newcastle) Limited (CHCN). The patient the subject to the application was a 73-year-old woman, who was recently diagnosed with cervical cancer, who lived alone in regional NSW and was without the support of close family, friends or external service providers.  She was reported to have a longstanding diagnosis of schizophrenia.
As a primary issue the Tribunal was required to decide in this interlocutory application whether CHCN had the requisite standing to make the application.  In reaching its decision the Tribunal was required to determine whether CHCN is a “person” within the meaning of s 9(1)(d) of the Guardianship Act and if so, if it had a genuine concern for the “welfare” of the patient.  The Tribunal accepted that CHCN as a corporation is a ‘person’, as defined in s 21 of the Interpretation Act and s 9(1)(d) of the Guardianship Act.
In relation to whether CHCN had genuine concern for the patient, the Tribunal had regard to the Health Services Act, which provides for non-government organisations to be treated as part of the public health system in certain circumstances, as well as CHCN’s Constitution and the service agreement that existed between CCHN and Hunter New England Local Health District.
The Tribunal considered the functions and objectives of CHCN, which are to deliver high quality care and protect and maintain the health of the community, together with the activities carried out by CHCN as being consistent with a genuine concern for a patient. Accordingly the Tribunal concluded that CHCN had standing to apply for the appointment of a guardian for the patient.
This decision is a reminder that in order to seek a guardianship order the person or entity bringing the application is required to have the necessary standing. Absent this, the Tribunal will decline to consider the application. 
QVC [2017] NSWCATGD 20

Post by Monica Pecker and Karen Kumar

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