DGR v Public Guardian

Background

1. The Applicant's mother is 88 years of age. She resides at the H aged care facility and has done so since July 2017. She has two daughters, the Applicant and the Second Respondent, who was joined as a Respondent by order of the Tribunal made on 2 February 2018. The Second Respondent has not been allocated a pseudonym, but to protect her privacy she will be referred to by the initials CB. The daughters are estranged from each other, and the Second Respondent supports the position of the First Respondent, the Public Guardian.
2. On 10 August 2017 the Tribunal ordered that N should be the subject of a guardianship order under s 14 of the Guardianship Act 1987. The Tribunal appointed the Public Guardian to be N's guardian.
3. On 6 September 2017 the Applicant asked the Public Guardian to move her mother to another care facility. On 29 November 2017 the Public Guardian decided that N should continue to reside at H aged care facility.
4. The Applicant then filed her Application for Administrative Review on 6 December 2017.

The Tribunal Hearing

1. The Applicant relied on affidavits by herself, her husband (who will be referred to as G), Kay Cambourn, a private patient advocate, and Josh Pallas, a solicitor from the Applicant's solicitors' office. G and Ms Cambourn were required for cross-examination.
2. The Respondents relied on affidavits of the Second Respondent CB, of 26 April and 12 June 2018, Amanda McDonagh, Janelle Sayers, Justine Reefman, Linda Marie Crawford of 12 June 2018, and an expert report, a neuropsychological assessment by Dr Karen Wallace, dated 23 April 2018 . The Applicant's solicitor, Mr Levitt, objected to Ms Crawford's affidavit and counsel for the First Respondent, Mr Bhalla, decided not to rely on it.
3. The Applicant, the Applicant's husband G and Ms Cambourn were all required for cross-examination. The Applicant attended the hearing by telephone.
4. Mr Levitt told the Tribunal that the Second Respondent, Ms McDonagh, Ms Reefman, Ms Sayers and Dr Wallace would be required for cross-examination.
5. Kay Cambourn is a private patient advocate who was asked by the Applicant to prepare a report on the H aged care facility. She conceded in cross-examination that N was receiving appropriate care at H aged care facility.
6. The Applicant gave evidence over the telephone. She was asked about the effect on her mother of being moved away from H aged care facility and said that she would still be able to see her other daughter CB on a regular basis. CB spends time with N four to five times a week at present and would still be able to do that. She conceded that the relationship between her and her sister was not good. She also conceded that she had not visited the H aged care facility because of incapacity from which she suffers due to an accident.
7. The Applicant's husband G gave oral evidence. He was critical of the location of the H aged care facility, saying that it was not in an area that was consistent with the area in which N had previously chosen to live. He also gave evidence that N was "deeply unhappy" living at H aged care facility. He visits her regularly and had last visited her the day before the Tribunal hearing.
8. Dr Karen Wallace is a Senior Clinical Neuropsychologist who prepared a report of a neuropsychological assessment conducted on N to assess her degree of dementia and the impact of her cognition on her ability to express her preferences with respect to her living arrangements and the likely impact on her if she were to be moved away from her current accommodation.
9. Dr Wallace expressed the opinion in her report that N was suffering from a major neurocognitive disorder, of moderate severity, without behavioural disturbance. She stated that due to the nature and severity of N's cognitive impairments and her age, there are no prospects of improvement.
10. In particular, Dr Wallace stated that: 1. N's level of dementia is of moderate severity; 2. N is limited in her ability to communicate her daily support needs and wishes to care staff but is apparently able to accept or decline offers of care or activities; 3. The impact on N of a move to an alternative facility is likely to be negative and significant; 4. N's cognition, mood and behaviour are likely to deteriorate if she were to be moved to another facility against her stated wishes; and 5. Any disruption to living in a familiar environment, including daily routines and people for a person with dementia would be likely to result in negative emotions which may have substantial impacts on behaviour.
11. In cross-examination, Dr Wallace said she assessed N at H aged care facility. She interviewed two staff members as well as N. Dr Wallace interviewed N throughout the day and noted that N was confused in the afternoon, possibly because she was tired. She said that she was asked primarily to assess N's degree of dementia and the impact on her cognition on her ability to express her preferences with respect to her accommodation and the impact on her if she were to be moved away from it. At no time was there a plan for her to assess the aged care facility.
12. Amanda McDonagh is the Regional Manager at the Public Guardian's Office for the Western region. Her affidavit effectively adopted the evidence that Ms Nicola McKenzie, the Senior Guardian, would have given if she were able to do so. She said that Ms McKenzie had suffered a medical emergency some two months earlier and was still unable to swear an affidavit. Ms McDonagh said in cross-examination that she accepted Ms McKenzie's decision based on her view that to move N from her present accommodation would cause her great distress. She was aware that the Australian Aged Care Quality Agency had previously inspected the H aged care facility and had revoked its accreditation. The facility had since changed hands.
13. Ms McDonagh said that Ms McKenzie had attended the H aged care facility and had made inquiries to ascertain whether the inadequacies that had been identified by the Australian Aged Care Quality Agency had been remedied. Ms McKenzie was satisfied that N was well and safe and healthy at the H aged care facility.
14. The Second Respondent CB said that she was estranged from her sister, the Applicant and has not had any relationship with her for 19 years because of an incident that took place 19 years ago. She had not had any discussions with any of the staff at H aged care facility about her mother's diet, saying that she was not aware that it was a problem.
15. CB went on to say that she usually arrives at H aged care facility in the morning, and she said that the morning staff at the facility "really care" about the patients. She did say that the staff do not usually say if there is anything wrong with her but will do so if asked. In cross-examination she spoke highly of the nursing staff.
16. Janelle Sayers is the Principal Guardian at the Office of the Public Guardian. She was asked in cross-examination about the fact that N had been hospitalised at Blacktown Hospital where she was diagnosed as suffering from community-acquired pneumonia. She confirmed that the Office of the Public Guardian had received a letter from the Applicant's husband G complaining that N had been suffering from a respiratory condition since January 2018 that was not able to be treated. She said that she had inquired about N's health when she visited the aged care facility on 7 February.
17. The Tribunal noted that Ms Sayers appeared to be an impressive witness.
18. Justine Reefman, the Quality Manager for Japara Health, was cross-examined on her affidavit of 4 May 2018. She said she was previously the Group Quality Manager for Riviera Health, the previous owner of the H aged care facility. She had started in that position on 30 January 2018. She agreed that she had been working at the aged care facility when it failed an audit by the Australian Aged Care Quality Agency in early February. Ms Reefman said that she had ongoing liaison with the Australian Aged Care Quality Agency and the Department of Health to bring about the necessary improvement. She said that the head nurse, who had previously worked at the aged are facility at the time when various failures were noted by the Agency, was still there and her position at the facility was safe.
19. Ms Reefman described the changes that had been put in place since the aged care facility had been taken over by Japara. She said that they were transitioning into Japara's quality systems, which include palliative care.
20. In re-examination by Mr Bhalla of counsel for the Public Guardian, Ms Reefman was asked if she was aware whether the failures identified by the Agency were general failures on the part of either Riviera Health or H aged care facility or were they specific failures in respect of specific residents. Ms Reefman replied by saying that it was a combination of both. It was mainly the failings of the then approved provider, Riviera, which was then removed as a provider and Japara acquired the aged care facility, but there were a few people who were identified within the report as being at serious risk. N was not one of those persons.
21. Ms Reefman appeared to the Tribunal to be an intelligent witness.

Submissions

1. Both the Applicant and the First Respondent filed written submissions. The Second Respondent did not file a separate submission.
2. The Applicant, in her submission dated 10 August 2018, submitted that the accommodation decision was made in error in that none of the witnesses who provided statements or affidavits in the proceedings or their reports had taken into account the matters which the Australian Aged Care Quality Agency had considered in deciding to revoke the accreditation of H aged care facility on 3 April 2018.
3. The Applicant submitted that the relevant inspections of H aged care facility took place in January and February 2018 and found there was a comprehensive failure by the then operator, Riviera Health, to meet Australian standards with respect to a number of standards with respect to aged care, leading to a compliance score of only 8 out of 44.
4. The Applicant relied on the evidence of Ms Cambourn, the Private Patient Advocate, who said that the Nursing Director of H aged care facility had told her that nothing was changed, even though the facility had been reaccredited. The Nursing Director was not called to give evidence.
5. The Applicant also referred to the evidence of Justine Reefman that she had been in the position of Quality Manager for Japara Health after the takeover, having previously been employed by Riviera Health.
6. The thrust of the Applicant's submission was that key personnel who had senior responsibility for the "abject failures" of H aged care facility, as reflected in the revocation of accreditation at the beginning of April 2018, had been left in control of the facility where "nothing had changed", as reported by Ms Cambourn, quoting the Nursing Director.
7. The Applicant went on to submit that every medical practitioner who provided a report or a statement in the Public Guardian's case did so in ignorance of the findings which resulted in the revocation of H aged care facility's accreditation on 3 April 2018. The conclusion that the Applicant draws from that is that little weight can be attached to their expert evidence concerning the desirability of leaving N in the facility.
8. Further, it is submitted that N's urinary tract infection and respiratory infection, about which the Applicant's husband G had given evidence, worsened after she was admitted to Blacktown Hospital, as her condition progressively worsened at H aged care facility.
9. It is further submitted that N's cognitive function had declined over a period of less than one year, noted that Dr Lucy Xing Luo had recorded N's RUDAS [2] score at 19/30 immediately prior to N's admission to H aged care facility and 18/30 on 24 January 2018. By comparison, Dr Wallace had recorded N's RUDAS score at only 10/30 on 25 March 2018.
10. The conclusion that is sought to be drawn from this is that N had a serious decline in her cognitive functioning as a patient at N aged care facility over a period of less than a year.
11. The Applicant submitted that whilst she and her sister CB suffer from intractable mutual hostility, they both enjoy at least a reasonably good relationship with their mother. However, N's cumulative failings make it impracticable and entirely speculative to treat with any weight her statements concerning her wishes, likes and desires. Further: "She appears to be incapable of being taken at her word on those matters due to the loss of her memory and intellectual functioning". [3]
12. The Applicant submits that there is no reasonable basis upon which the Tribunal could be comfortably satisfied with the Public Guardian's decision. There does not appear to be any expert evidence taking into account all relevant matters which ought to have been considered.
13. The Applicant is not fully mobile, although her sister CB is. It is submitted that the decision to keep N at H aged care facility will be likely to deprive her of the ability to interact with the Applicant. The Applicant submits that the decision under review did not take into account the desirability of preserving the relationship between N and her daughter, the Applicant, or protecting N from medical neglect. It was also submitted that the decision did not give paramount consideration to N's welfare and interests, given the lack of inquiry with respect to the quality of the services being offered at H aged care facility.
14. The Applicant submits that N should be transferred from H aged care facility to an aged care facility with specialised dementia programs and facilities.
15. The First Respondent submitted that in carrying out its functions under the Guardianship Act 1987, the Public Guardian is required to have regard to the general principles set out in s 4 of the Act. In addition, when carrying out its responsibilities in respect of N specifically, the Public Guardian is bound by Order 6 made by the Tribunal on 10 August 2017 (see at [5] above).
16. The standard of proof that applies in respect of any factual dispute is the civil standard, the balance of probabilities (Briginshaw v Briginshaw (1938) 60 CLR 336). The Tribunal must decide what is the correct and preferable decision having regard to any factual material (Bronze Wing Ammunition Pty Ltd v Safe Work NSW (No 2) [2016] NSWSC 988 at [74]; Nakad v Commissioner of Police NSW Police Force [2014] NSWCATAP 10 at [28]-[34]), and Karakatsanis v Racing Victoria Ltd (2013) 42 VR 176).
17. The First Respondent submitted that the evidence before the Tribunal established that: 1. H aged care facility is a modern home with a pleasant outlook; 2. N's health and welfare needs are being mat at H aged care facility; and' 3. H aged care facility and Dr Gamboa, N's general practitioner, regularly update the Public Guardian in respect of N's medical condition and requirements.
18. The Public Guardian is required by the Tribunal's Order 6 of 10 August 2017 and s 4(d) of the Guardianship Act to take all reasonable steps to bring N to an understanding of the issues and to obtain and consider her views before making significant decisions.
19. It is submitted that the evidence before the Tribunal shows that: 1. N is happy at H aged care facility; 2. N has consistently and on multiple occasions expressed opposition to leaving H aged care facility; 3. She has made friends at H aged care facility; 4. She likes living at H aged care facility; and 5. Moving N away from H aged care facility would cause her great distress.
20. Further, the Public Guardian submitted that whilst the Applicant's husband G had given evidence that N was "deeply unhappy" in her present accommodation, he provided no detail to support his claim, nor was there any corroboration of his evidence. It was submitted that he was not a credible witness. By contrast, the evidence of the Second Respondent CB, Dr Wallace, Justine Reefman, Janelle Sayers and Amanda McDonagh all corroborate the Pubic Guardian's assertions that N likes living at H aged care facility and does not want to leave there.
21. It was also submitted that there was some history of "animus [4] and lack of trust" on the part of N towards the Applicant, which the Applicant could not explain, apart from blaming her sister for "elder abuse".
22. The Public Guardian also made the obvious criticism that the Applicant suffered from the disadvantage of never having visited H aged care facility, although the Tribunal notes that her husband G certainly has.
23. The Public Guardian also took issue with the Applicant's criticism of H aged care facility had been the subject of a sanction by the Australian Aged Care Quality Agency, leading to the proposed revocation of the facility's accreditation. The Public Guardian met that criticism by stating that: 1. At the time of the original decision, the aged care facility was not subject to any sanction by the Agency; 2. At the time of the Tribunal hearing, on 13 June 2018, the aged care facility was not subject to any sanction by the Agency, as the earlier problems had been corrected by the facility's new owners; 3. The sanction was imposed on the aged care facility's previous owner and did not transfer to the new owner, Japara Healthcare Ltd, who bought the facility on about 29 March 2018; 4. When the Agency carried out an audit of the facility between 17 and 20 April, the facility achieved full compliance with all 44 of the expected outcomes; 5. The revocation of the accreditation of H aged care facility, which was to take effect from 26 May 2018, never took place, as by then the facility had changed hands; and 6. The complaints and conduct that led to the sanctions being imposed did not involve N's care and she was not a person identified by the Agency as being at immediate or severe risk.
24. The Public Guardian relied on the evidence of Dr Wallace that N was happy and well-settled at H aged care facility, and drew the Tribunal's attention to this passage from Dr Wallace's report: "[N] has not demonstrated any problematic behaviours of concern towards her fellow residents or staff of the facility (i.e. agitation, verbal or physical aggression, absconding, psychosis), which is unusual given the severity of her cogitative symptoms. Several reasons for the absence of significant and behavioural and psychological symptoms of dementia (BPSD) include [N]'s premorbid personality/disposition together with the current level of care, routine and support she receives from nursing and care staff in the current facility where she lives." [5]
25. It was further submitted that many of the complaints by the Applicant and her husband G seemed to concentrate on subjective and superficial factors, such as G's view that the facility was near to low socio-economic residences and her believed that the area was not good enough for N.
26. Counsel for the Public Guardian also referred to the evidence of Kay Cambourn, the private patient advocate, who "has no recognised qualification for that role, but does have a certificate of completion from a defunct 'institute' that operated for a couple of years in Melbourne, run by a lawyer". It was submitted that even Ms Cambourn conceded that H aged care facility had the capacity to provide N with her minimum clinical and physical requirements.
27. The First Respondent submitted that the following matters under s 4 of the Guardianship Act should be taken into consideration by the Tribunal in reaching its decision: 1. The welfare and interests of N should be given paramount consideration(s 4(a)); 2. N's freedom of decision and freedom of action should be restricted as little as possible (s 4(b)); 3. Her views should be taken into consideration (s 4(d)); and 4. N should be protected from neglect, abuse and exploitation (s 4(g)).
28. It is submitted that the weight of evidence is such that the Tribunal should be comfortably satisfied that: 1. N's medical and other care needs are being more than adequately provided for at H aged care facility; 2. H aged care facility is modern, clean and comfortable; 3. N is happy at H aged care facility, and likes it; 4. N's firm view is that she should remain at H aged care facility; and 5. To move N from the facility against her will would cause her great distress.
29. In conclusion, it is the submission of the First Respondent, the Public Guardian, that N's welfare and interests require that the decision of the Public Guardian made on 29 November 2017 that N should remain living at H aged care facility should be affirmed.
30. The Second Respondent CB made no separate submission but supported the submission of the First Respondent.

Conclusions

1. The Tribunal, in making its decision on an administrative review, must have regard to the provisions of s 63(1) of the Administrative Decisions Review Act 1997 (NSW), which provides: In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following (a) any relevant factual material, (b) any applicable written or unwritten law.
2. The Applicant's case is that the decision for N to remain living at H aged care facility should be reversed.. The Applicant contends that the current arrangements are not in her mother's best interests, as they do not cater for her physical needs, her increasing dementia or her general happiness and wellbeing. The Applicant also contends that the Public Guardian's decision did not take into account the desirability of preserving N's relationship with her daughter, the Applicant, or protecting her from medical neglect.
3. The Applicant also claims that the Public Guardian did not have proper regard to the decision of Australian Aged Care Quality Agency to revoke the accreditation of H aged care facility, based on a failure to pass an audit by only complying with 8 out of 44 criteria.
4. The Applicant's case relies on the evidence of her husband, G, who visited the aged care facility, and Kay Cambourn, the Private Patient Advocate, who visited the facility to carry out an investigation, and the Applicant herself. The Applicant, on her evidence, has only visited the aged care facility herself on one occasion, on Mother's Day 2018. The last time that the Applicant had seen her mother face to face was in 2010, when her mother came to visit her in hospital.
5. The Applicant's husband G does visit N at the aged care facility, and it is his evidence that N is unhappy and not well cared for. He referred to a urinary tract infection and a respiratory infection from which N had suffered, which led to her being admitted to Blacktown Hospital.
6. Ms Cambourn is described as having given expert evidence, but her degree of expertise came under attack from counsel for the Public Guardian. She said that she attended a patient advocate training course in 2013 and received a certificate of completion. The patient advocate institute was run by a lawyer in Melbourne and has since dissolved. Ms Cambourn conceded in cross-examination that her certificate of qualification is not a recognised in Australia.
7. Ms Cambourn did say in evidence that she did not know what the standard of care at the facility is like but it does have the capacity to be able to deliver that care. She was not asked to address the likely effect on N if she were moved away from the facility and placed elsewhere.
8. The Tribunal did not place a great weight on her evidence.
9. By comparison, the Tribunal gave significant weight the evidence of Dr Karen Wallace, a senior clinical neuropsychologist, who prepared a report on N based on a neuropsychological assessment she conducted at the aged care facility. Her professional expertise in this area is beyond question.
10. Dr Wallace expressed the opinion that N's dementia was of moderate severity and she was well settled at H aged care facility. She said that the impact on N of a move to an alternate facility was likely to result in significant negative impacts on her psychological well-being and her cognition, mood and behaviour were likely to deteriorate if she were moved to another facility against her wishes.
11. Further, one of the reasons for the absence of significant behavioural and psychological symptoms of dementia included the level of care and support she receives from the nursing and care staff at the facility.
12. Whilst it is apparent that N's level of dementia has increased since she became a resident at the facility, as observed by Dr Wallace, there is no evidence that this has been caused by her residence at the facility. Indeed, the evidence of Dr Wallace suggests that the level of care N has received has alleviated the symptoms of dementia in N.
13. There is evidence that H aged care facility has engaged a dementia specialist to train staff and provides dementia-specific activities for residents.
14. The Second Respondent, CB, also gave evidence that N is happy and well-settled at H aged care facility. Her evidence is contradictory to that given by G, but it is clear that she attends the facility regularly and stays for lengthy periods of time.
15. It is noteworthy that the Applicant sought to have N removed from H aged care facility and placed elsewhere on 6 September 2017. The decision not to accede to this request was made by the Public Guardian on 29 November 2017. The decision by the Australian Aged Care Quality Agency to impose a sanction on H aged care facility was not made until 3 Aprilo 2018. The decision to revoke the accreditation of the facility was not a matter that the Public Guardian had to consider when making the decision on 29 November 2017.
16. It is significant that the facility has changed hands and that there is evidence of improvement since then. The facility's accreditation was not revoked. It is significant that the evidence of Ms McDonagh that the audit of the facility by the Agency did not identify N as being a person at immediate or severe risk.
17. In the Tribunal's view, the Applicant has not made out her case. The evidence, particularly from Dr Wallace and CB, shows that N is happy and well-settled at H aged care facility and is receiving at least adequate care. It is apparent that moving her from that facility to another facility in an unfamiliar environment away from people she knows would be distressing to her and may exacerbate the symptoms of her dementia.
18. The Applicant's claim that the decision for N to remain at the H aged care facility does not take into account the desirability of preserving the relationship between N and the Applicant is of little force, in the Tribunal's view. On the Applicant's own evidence, she has only spent face to face time with her mother on two occasions since 2010, a period of 8 years. It is clear from the decision under review that N has only lived at H aged care facility since July 2017.
19. The Applicant's mobility is restricted as a result of injuries she received in an accident, and this clearly contributes to her difficulty in travelling to see her mother. However, the Tribunal must regard N's welfare and interests as the paramount consideration.
20. The Tribunal is of the view that it is in N's best interests to remain living where she is at the H aged care facility, where she has been residing for some time and appears to be well settled.
21. The Public Guardian appears to have considered and applied the relevant principles in s 4 of the Guardianship Act and was not in error in placing weight on the neuropsychological report of Dr Wallace and the evidence of the other witnesses, including the Second Respondent.
22. The correct and preferable decision is for N to remain living in her present accommodation at H aged care facility.

Orders

1. Accordingly, in accordance with the provisions of s 63 of the Administrative Decisions Review Act: 1. The Tribunal affirms the decision of the Public Guardian made on 29 November 2017 that N should remain living at H aged care facility.

Endnotes

1. The particular aged care facility will be referred to as the H aged care facility for reasons of privacy
2. RUDAS stands for Rowland Universal Dementia Assessment Scale
3. Applicant's written submission page 10 paragraph 10
4. Hostility or ill feeling
5. Dr Wallace's report page 12 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: 23 November 2018