CDJ v Public Guardian [2015] NSWCATAD 275 | Case summary

NCAT Administrative and Equal Opportunity|2015-12-14

The applicant's friend

A longstanding friend of the applicant and her late husband, who have also been her hairdressers, gave evidence to the Tribunal. The applicant's friend, who I will not identify by name, has known CJM since 2003 or 2004. In her statement, she described seeing CJM at the applicant's hair salon where CJM would be having her hair done, knitting or reading the paper.
It is her understanding that CJM saw the applicant's husband to be like a son and that she was very fond of the applicant: I noticed at the salon that the applicant was always caring for [CJM]. She would ensure she was comfortable, get her food and drinks, run errands for her, adjust her clothes, do her hair and hands and generally play the role that you might expect from a loving daughter..[CJM] kept herself busy knitting in the salon and talking to people. Each time I saw her, she was happy, content and comfortable…She was always well presented. Her hair was always done. Her clothes, which usually involved a long skirt, blouse and cardigan, were clean.
It is her experience that the applicant would purchase healthy food for CJM and would take her shopping and on outings and trips as well as to her medical appointments.
In relation to CJM's unit, she stated that it was always clean and tidy: I was usually in the living room with [CJM] and that room was well kept and maintained. [CJM] loved to play scrabble in there. The bathroom was clean. I did not see [CJM's] bedroom as I never went in there.
She told the Tribunal that carers started looking after CJM in April or May 2014, shortly before the applicant's husband became ill and was hospitalised. This was stressful for the applicant who had to see her husband but who worried about leaving CJM.
She stated that despite CJM having carers to look after her, the applicant would continue to cook for CJM, and the carers, after returning from the salon at night. It was her observation that the unit became more untidy after the carers moved in and that the applicant would be left to clean it up after returning from the salon.

The hairdresser at the applicant's salon

One of the hairdressers employed at the applicant's hair salon provided a statement to the Tribunal. In this decision, I will simply refer to her as the hairdresser. She told the Tribunal that CJM would be at the salon most days, generally arriving with the applicant and her late husband in the morning: [The applicant] would set [CJM] up at the start of the day with breakfast, knitting, patterns, radio and TV. [The applicant] was very caring and tried to ensure that [CJM] was occupied throughout the day…[CJM's] favourite pastime however was speaking to customers and staff of the business. She appeared to enjoy that interaction greatly and rarely stopped talking throughout the day….[The applicant] organised meals and refreshments for her throughout the day. They involved her and kept her entertained. I would often hear [them] on the phone organising things for [CJM], such as medical appointments, bus trips or service people for her home… In the evening [they] would drive her home.

CJM's second cousin

CJM's second cousin, who I will refer to as such in this decision, has lived interstate for close to sixty years but has remained in touch with CJM and visits her several times a year. Often she and CJM would be accompanied by CJM's cousins who live locally.
After the applicant and her husband moved in, CJM's second cousin found that there would be nothing to eat in the unit for breakfast and that the unit would be untidy and smelly. Often CJM's clothes were smelly too. Before the applicant and her husband moved in, the unit was kept in good order: Sometime after [the applicant and her husband] moved in, I noticed on my visits that [CJM] did not have any bed sheets on her bed or in her cupboard. I bought her at least three sets of new sheets. I recall two sets were blue. However, they went missing too. Until [the applicant and her husband] moved in, [CJM's] bed was always made up with bed sheets. I don't recall her ever saying to me she preferred to sleep without bed sheets….Since Reliant Health Care started looking after [her], her apartment is a comfortable place again to visit. I last visited [CJM] in August 2015…and have booked a flight to Sydney for November 10….I last spoke to her on 21 October 2015.., In July 2014 about a dozen family members gathered to celebrate her..birthday…[CJM] has not mentioned [the applicant] since her eviction from the apartment.
She described caring for CJM in 2013 when the applicant and her husband travelled overseas for 3 weeks. The applicant's son had agreed to look after CJM but after a week were unable to because CJM had had a fall and the daughter-in-law could not manage looking after CJM together with her own young children.

The applicant

The applicant stated that she lived at CJM's unit from 2003 to 29 July 2015. Her late husband lived there, too, until his death on 1 July 2014. She agreed that her late husband had been declared bankrupt in 2003 and that he and the applicant had lived rent-free with CJM for twelve years. The applicant told the Tribunal that she had cooked and washed for CJM but that she and her husband had not paid for utilities. She agreed that her son and his family had leased the other unit in the block owned by CJM for $500 a week. This had been paid in cash.
According to the applicant: Since just prior to the death of my late husband I had been receiving letters from the respondent asking me to vacate the premises, but my solicitor had replied to those letters and I believed that the respondent had consulted with [CJM] and that I should stay with her. On 29th July 2015 I went home after work…and found that the locks had been changed and the representative of the respondent would not answer the door. When I buzzed after I found the locks had been changed the carer in the premises just hung up the intercom.
Documents contained on the respondent's tender bundle include correspondence between the respondent and the applicant's solicitors in relation to the request to vacate the premises.
According to the applicant, CJM lived very frugally: She had no interest in her clothing and she always slept without sheets on her bed. She used a tablecloth type cover in the summer for her bed and a doona in the winter, but did not ever use sheets. When I tried to make up her bed with sheets she said 'It looks very nice but don't do it again, I have always slept like that since I was a baby.' When we arrived to live there, the mattress she was using was very stained and looked very old. It had a big dent in the middle where she slept. My husband purchased a new mattress for him, but she still refused to use sheets. All her linen and towels were full of holes when we arrived and we replaced them all.
The applicant told the Tribunal that CJM never wanted anyone - even the cleaners - to enter her bedroom.
The applicant stated that she was not advised of the decision to lock her out of the apartment until 4 August 2015 when a letter arrived at the salon that had been wrongly addressed. This meant that the applicant had no notice that she was to be locked out on 29 July and no chance to either pack her possessions or explain to CJM the reason for her leaving.
Documents contained on the respondent's tender bundle confirm that a copy of the decision dated 27 July 2015 to deny the applicant access to CJM's apartment was wrongly addressed and did not reach the applicant until the locks to the apartment had been changed and she had been denied access to the apartment. There is no evidence that a copy of the decision was sent to the applicant's solicitors with whom the respondent had been corresponding.
According to the applicant: My husband..had known CJM all his life and she always said to me 'He is like a son to me.' Between 2003 and the time that the respondent took charge of [her] affairs, we took [CJM] with us everywhere and included her in all our activities. We cooked and cleaned for her, we drove her around after she lost her licence, shopped for her and cared for her and helped her manage her life. We have also given her a social life and taken her out with friends and family. We loved doing this as we loved [her]. [CJM] asked us to live with her. She said we were a substitute for the family we did not have. She may have some memory loss now, but was of very sound mind when the arrangement. At the time we moved in [CJM] was in her seventies and still maintaining an active life.
The applicant disputes that Reliant Health Care commenced looking after [CJM] on 28 April 2014. On 29th April there were no carers in the home and [my husband] and I were called to collect [CJM] from the hospital after her fall in the supermarket the week before. We took her home from the hospital, but first took her to see [the doctor]. [My husband] and I took her to dinner after that we then went home with her. It was the next day that [my husband] became very ill and was taken at St Vincent's Hospital. He stayed in hospital for 3 weeks and then spent one week at home. On 23th of May he went back to hospital and remained in hospital and the hospice.. for the rest of his life until he died on 1 July 2014.
A medical report dated 18 June 2014 confirms the cancer diagnosis for the applicant's husband and provides an estimated probable life expectancy of less than two months.
The applicant stated that: On 30th April 2014, I had to leave [CJM] at home alone so that I could be with my husband in the hospital. I went back a couple of times during the day and left the phone next to [the CJM's] bed so that she could call me if she needed me….On the same day the bus driver had telephone to find out why she wasn't waiting for her bus outing and she said 'help help I'm ill.' I believe that thought it was me that was calling. I had left the telephone next to the bed so she could call me if she had a problem. The bus driver, I believe, took her back to St Vincent's so she was there at the same time as my husband…From that time onward the respondent arranged to have two carers for [CJM] 24 hours per day. …In relation to allegations that I have kept [CJM] has always seen her cousin and I have always attempted to keep the two of them in touch. This was the only relative with which she had contact. She did have second cousins..She often said to me 'I cared for them when they first arrived in Australia and as soon as I got on my feet they disappeared out of my life. You..are my family now.'
The applicant admitted having smoked in the unit in her bedroom, but always with the door closed. She stated that she would wash and dry CJM's clothes in the hair salon rather than in the unit. She agreed that CJM would sometimes have a problem with body odour because often she wouldn't bathe. She denied that CJM lost weight whilst the applicant was living with her.
The applicant agreed that she received letters from the Public Guardian telling her to vacate the unit but insisted that CJM wished her to stay. She also agreed that she had been upset with CJM's carers after CJM's medication was changed when she attended a new doctor and subsequently became ill. She denied upsetting CJM. She denied telling CJM not to let carers into the unit. She agreed telling CJM about the eviction notice the applicant had received. At the time she was living at the unit, the applicant disputed that CJM needed two carers.
If the applicant were to be granted supervised access to CJM, the applicant would be prepared to meet any expenses incurred.

Guardian ad litem's views

On 14 October 2015, the guardian ad litem, Dr Ainsworth, visited CJM. Dr Ainsworth attempted to explain his role as guardian ad litem in these proceedings but was not satisfied that CJM understood his explanation. He spoke to CJM about her life and expressed the view that CJM's long-term memory about her early life and adult career was excellent.
When Dr Ainsworth spoke to CJM about the applicant, CJM told him that the applicant 'had left her.' According to Dr Ainsworth, CJM spoke warmly about the applicant and her husband and how they were family to her and how they lived in harmony with each other. When asked, CJM expressed a firm desire to see the applicant.
Dr Ainsworth queries whether CJM saw the sharing of her unit by the applicant and her late husband as a commercial arrangement with the applicant and her late husband being tenants. According to Dr Ainsworth, it is just as likely to have been a satisfactory arrangement between people who had known each other for a significant period of time. Dr Ainsworth suggests that the Public Guardian's treatment of the applicant as a tenant may well be a mis-categorisation of her status.
Dr Ainsworth accepts that the Public Guardian has the power to deny the applicant access to CJM but suggests that the conditions giving rise to the denial of the access order no longer exist. This is because the applicant no longer resides in CJM's apartment and is no longer in a position to communicate her views about the role of the Public Guardian, the quality of the services provided by Reliant Healthcare and their staff carers to CJM. It is for these reasons that Dr Ainsworth believes that the issue of access should have become a matter for negotiation and that the Public Guardian should have agreed to enter into such a negotiation.
According to Dr Ainsworth: It is hard to believe that when the NSW Parliament passed the Guardianship Act 1987 that the power this bestowed on the Public Guardian would be used to deny access between two persons (one very elderly) who had resided together since 2003, a period of more than 10 years. This is regardless of the judgement, legal and moral, made by others as to the nature and quality of this relationship.
Dr Ainsworth's recommendations are as follows:

that access be granted against strict written terms signed by all parties;
that access to be limited to 2 hours once per fortnight at a time that takes account of CJM's poor health;
that the applicant must not talk to CJM about the role of the Public Guardian, the quality of services provided by Reliant Healthcare and their staff carers or the Tribunal hearings. Dr Ainsworth suggests that old memories should suffice;
that the applicant not bring any gifts including food for CJM;
that access be supervised by a person nominated by the Public Guardian or Reliant Healthcare and agreed to be the applicant. The role of the supervisor is to monitor the interaction between the applicant and CJM and is authorised to ask the applicant to leave immediately should any of the agreed arrangements be breached.

Power to make access decision

It is common ground that CJM has been a person subject to a guardianship order under the Guardianship Act since 31 May 2012 and that the Public Guardian has been her guardian since then. It is also common ground that on 7 May 2014, orders were made to extend the functions of the Public Guardian to accommodation, health care, medical/dental consent and services. It is again common ground that these orders were varied on 27 June 2014 to extend to access.
It is also accepted that the letter to the applicant informing her of the decision to lock her out of CJM's apartment was wrongly addressed and did not reach the applicant until 4 August 2015, well after the locks had been changed to the apartment. It is unfortunate that the letter was wrongly addressed. It is also unfortunate that a copy of this decision does not appear to have been sent to the applicant's solicitors, which whom the Public Guardian had been in contact since 2014.
Despite this, I accept that the failure to serve the notification of the access decision before the lockout does not invalidate the access decision (see s48(3) of the Administrative Decisions Review Act)
I accept that in conducting this view, the Tribunal stands in the shoes of the decision maker and that the Tribunal is limited to making a decision about access.

Whether CJM's wishes should be taken into account

According to the Public Guardian, CJM's medical conditions and her advanced and ongoing state of ill health make it inappropriate in all the circumstances to place a considerable amount of weight on her wishes. It is the Public Guardian's further submission that it would be unreasonable and counterproductive to protecting CJM's interests to place weight on her views regarding the access decision.
Despite these submissions, it is common ground that CJM and the applicant have known each other for many years and lived together in CJM's apartment from 2003 to 29 July 2015. In his submissions, Mr Higgins for the Public Guardian refers to the decision of the Guardianship Tribunal (as it then was) on 7 May 2014. In a decision granting the Public Guardian authority to make decisions for CJM concerning her accommodation, health care, medical and dental treatment, the Guardianship Tribunal found that the evidence showed that the applicant and her late husband were good friends of CJM and provided her with company.
The Public Guardian also concedes that CJM has on occasion asked about the applicant's whereabouts.
In light of the evidence about CJM's cognitive impairment and the evidence provided by Ms Cohen in relation to the drafting of CJM's statement dated 5 June 2014, I have placed no weight on CJM's statement.
Instead I have relied on the evidence of Dr Beveridge, Ms Baulderstone, the applicant's friend and the hairdresser to find that CJM has viewed her relationship with the applicant to be a good one and that the two women have a longstanding friendship.

The applicant's behaviour

It is common ground that on 28 May 2014, the Public Guardian sent a letter to the applicant and her late husband giving them notice to vacate the property. I accept the applicant's evidence that her husband became ill in late April 2014. It is uncontested that the applicant's late husband was subsequently diagnosed with terminal cancer, as set out in the letter from his treating oncologist dated 18 June 2014, which is contained in the Public Guardian's tender bundle. This tender bundle also contains correspondence between the applicant's solicitors and the Public Guardian's solicitor in relation to the request by the Public Guardian for the applicant to vacate CJM's premises.
On the evidence before me, I accept that the applicant was never a carer of CDJ and never made medical decisions for her. Rather, I agree with the findings of the Guardianship Tribunal that she was a friend to CDJ who provided her with company.
I agree that on 22 May 2014, 23 May 2014, 30 May 2014, 2 June 2014, 4 June 2014, 6 June 2014, 7 June 2014, 14 June 2014, 15 June 2014 and 7 October 2014 notes taken by CJM's carers refer to events involving the applicant that are said to have agitated and distressed CJM.
The evidence reveals that between April and June 2014, the applicant was caring for her terminally ill husband whilst running the couple's hairdressing salon, checking on CJM's welfare and seeking legal advice in relation to her eviction notice. By October 2014, the applicant's husband had been dead for just over three months.
In his submission as to the exploitation and neglect of CJM by the applicant and her late husband, Mr Higgins for the Public Guardian relies on the reasons for decision as to the access decision dated 27 July 2015. In part these reasons read as follows: A pattern of financial exploitation [was] documented from 2012 including [the applicant's late husband's] attempts at seizing control of [CJM's] finances; [the applicant's son] living in [CJM's] adjacent [apartment] with no evidence that he paid rent during this period; and a bathroom renovation initiated by [the applicant and her late husband] in the premises and paid for by [CJM] to an unsatisfactory manner.
Other concerns relate to CJM's malnourishment and dehydration on presentation to hospital, the absence of bed linen for CJM and CJM's poor hygiene. These concerns reveal that the applicant was ill-equipped to be the carer for such an elderly woman who, as it transpires, required 24-hour care. The Guardianship Tribunal did not accept that the applicant had been a carer for CJM and the applicant is not claiming that she should be her carer. She is simply submitting that she is a longstanding friend of CJM.
Further concerns were raised in relation to the applicant smoking in the premises, Reliant Health Care having to appoint more staff to manage the applicant's behaviour and the applicant agitating and distressing CJM over the costs associated with her care and medical treatment.
The examples as to exploitation of CJM seem focused not on the applicant but rather her late husband and her son (who lived in the adjacent flat). The applicant is included in criticism of the bathroom renovation but there is no evidence that the problems with its construction can be attributed to her. There is no evidence that the applicant abused her position in living with CJM and no evidence that she was considered by CJM to be a tenant rather than simply a friend who had been living with her since 2003. There is no evidence that in 2003, when the applicant and her late husband moved in with CJM, that CJM had a cognitive disability such that she was unable to access the consequences of offering rent-free accommodation.
It has now been almost 18 months since the applicant's late husband died and almost six months since the eviction. I agree with Dr Ainsworth that the circumstances giving rise to the eviction have now disappeared and the situation is quite changed: CJM has 24-hour care, the applicant is residing elsewhere and appears to be continuing to manage her hair salon.
The applicant has submitted that she accepts that CJM has a cognitive disability. She simply wants to be able to continue a friendship with CJM at some level, at some time.
Dr Beveridge has given evidence that the applicant's 'tirade is like a maelstrom that is a problem for [CJM] no matter how the contact occurs.' He gave evidence that he doesn't believe this can be controlled and that he cannot envisage the applicant changing her personality.
It is common ground that Dr Beveridge is a physician in geriatric medicine. Whilst he is CJM's treating doctor, he has never treated the applicant and has met her only on one occasion in 2012. Given that Dr Beveridge has never been asked to review the applicant or to provide a report on her, and his knowledge of her, it seems, is limited to those documents relevant to these proceedings, I have given limited weight to his opinion that the applicant is incapable of change.
On the evidence before me and given the changed circumstances, I do not agree with the Public Guardian's submission that there remains a possibility that allowing the applicant to have access to CJM may lead to CJM's exploitation. I note the acceptance by the Public Guardian that, as a consequence of the operation of the financial management order made on 31 May 2012, the risk of financial exploitation of CJM no longer arises.
On the evidence before me, I am satisfied that, given these changed circumstances, the applicant can be relied upon not to upset CJM during any visits to her.

The Welfare and Interests of CJM

It is accepted that the primary object and purpose of the Guardianship Act is to protect the interests and welfare of CJM.
I accept that in light of her medical conditions, CJM requires the 24-hour care that is being provided to her by Reliant Health Care by her. I accept the evidence of CJM's second cousin that Reliant Health Care have ensured that CJM's apartment is a comfortable place to be.
I accept that due to her medical condition and the fact that CJM's apartment is up stairs, she is house bound. I accept that the carers occupy CJM by playing scrabble with her and that a previous Italian-speaking carer would converse with CJM in Italian. I accept that CJM's second cousin, who lives interstate, visits CJM when she can and that CJM's cousins who live locally also visit her.
I am satisfied that CJM has asked after the applicant and that for many years, she has enjoyed the company of the applicant, who, I accept, speaks both Spanish and Italian in addition to English.
I accept the submissions by the guardian ad litem that the circumstances that existed at the time of the applicant's eviction no longer apply. I also accept the submissions by the Public Guardian that as CJM is subject to a financial management order, she is not liable to financial exploitation. For the reasons set out above, I find that there is no evidence before me to show that the applicant has financially exploited CJM.
I am satisfied that there is a long-standing friendship between CJM and the applicant. I accept that CJM has been asking for applicant and speaks of her warmly and fondly. It is my view that some contact with the applicant would be beneficial to CJM. In reaching this view, I have considered the need to protect CJM's interests and welfare. I have also considered the other principles set out in section 4 of the Guardianship Act.

Supervision

Although Ms Conroy told the Tribunal that she had no knowledge of any carers supervising access to their clients, there is evidence before the Tribunal that, for a period of time, Reliant Health Care placed two carers in the unit: one to care for CJM and the other to manage the behaviours of the applicant to prevent CJM becoming upset.
Should Reliant Health Care or Public Guardian have any concerns in relation to visits to CJM by the applicant, it may be an option to have two carers rostered on during visits to CJM by the applicant. The applicant has offered to pay costs associated with any visits to CJM.

Recommendations for access

For the reasons set out above, I find that the correct and preferable decision is that the decision of the Public Guardian to deny the applicant access to CJM for a period of six months should be varied as follows: For a period of three months from the date of this order, the applicant should be granted access to CJM for a two-hour visit each fortnight at a time when CJM is not otherwise precluded from receiving visitors. This is contingent upon the applicant providing a written undertaking to the Public Guardian that:

she will not talk to CJM about the role of the Public Guardian, the quality of services provided by Reliant Health Care and their staff carers or the Tribunal hearings;
she will not bring any gifts including food for CJM;
she will not smoke in CJM's apartment; and
she will leave quietly when asked to do so by CJM's carers.

Order

The decision of the Public Guardian dated 27 July 2015 to deny all access by the applicant to CJM is varied to the following: For a period of three months from the date of this order, the applicant should be granted access to CJM for a two-hour visit each fortnight at a time when CJM is not otherwise precluded from receiving visitors. This is contingent upon the applicant providing a written undertaking to the Public Guardian that:

she will not talk to CJM about the role of the Public Guardian, the quality of services provided by Reliant Health Care and their staff carers or the Tribunal hearings;
she will not bring any gifts including food for CJM;
she will not smoke in CJM's apartment; and
she will leave quietly when asked to do so by CJM's carers.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 December 2015

Jurisdiction

In conducting the review, it is the role of the Tribunal to determine whether the Public Guardian's decision to prohibit the applicant having access to CJM for a period of 6 months from 27 July 2015 is the correct and preferable decision, having regard to the material and any applicable written or unwritten law (s63 of the Administrative Decisions Review Act 1997 (NSW)). The Tribunal may take into account material which was not before the primary decision maker: Drake v Minister of Immigration and Ethnic Affairs (1970) 2 ALD 60 at 77.)
In exercising its jurisdiction, the Tribunal should be guided by the paramount purpose of the guardianship jurisdiction, to protect the welfare and interests of CJM, the person the subject of a guardianship order (s4(a) of the Guardianship Act 1987 (NSW); P v NSW Trustee and Guardian [2015] NSWSC 579). A related objective of the Act is protecting CJM from 'neglect, abuse or exploitation.' (s4(g) of the Guardianship Act)
According to section 4 of the Guardianship Act, it is the duty of everyone exercising functions under this Act with respect to persons who have disabilities, including this Tribunal on review, 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.

CDJ v Public Guardian

At a glance

Court

Decision date

Source

Judgment (13 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (1)