DII v Public Guardian [2018] NSWCATAD 203 | Case summary

NCAT Administrative and Equal Opportunity|2018-04-19

REASONS FOR DECISION

This is an Application for review of a decision made by the Respondent on 14 December 2017 for the Applicants' mother to continue to reside at an accredited aged care facility in Southern Queensland.
By her Application, the first Applicant, DII, complains that when taking the decision about her mother's accommodation, the Respondent Public Guardian either failed to take a number of issues into account or did not weigh the evidence correctly.
In her Application, filed on 7 February 2018, the Applicant DII sets out some 14 grounds of review, as follows: 1. The decision does not respect the cultural values of [the mother]. In this the Public Guardian shows a lack of understanding of these issues in regard to [the mother's] lifelong, well-established beliefs. 2. The decision creates more familial conflict than previously existed. The Public Guardian has sought and published personal information about the parties which has not been conciliatory and has increased tension; she published personal information that is false and misleading, that had the effect of further separating the parties. 3. The Public Guardian does not consider important new evidence (provided to her) that the family does not need the Public Guardian to make decision around access as the problem no longer exists. 4. Evidence/written testimony/first hand knowledge of the applicant has not been weighted by the Public Guardian, in particular in relation to [the mother's] level of comfort in the family home and expressed wishes. 5. Applicants' care plan (which far exceeds the care [the mother] gets at the aged care facility as one of many) has not been weighted. The Public Guardian's decision denies [the mother] the right to have greater care than she is presently receiving. 6. Complaints about the care at the aged care facility which includes chemical restraint and breaches of privacy has not been weighted. Please Note: Dr Khateeb's evidence is limited by information given to him in one meeting that was supervised by Care Staff at the aged care facility that does not include evidence from the family about chemical restraint and breaches of privacy. 7. Government policy to support the elderly and frail "in place" is not weighted. 8. Dr Khateeb's evidence is selectively read and evidence that [the mother] "will adjust" is not weighted in the decision. 9. [The mother's] family (names and numbers provided by [DII] to the Public Guardian also letters of support) have not been contacted for their opinions. These people, closest to [the mother], support [DII's] application to bring her mother home. 10. The predictions, which are no more than worst case possibilities, of the Public Guardian are given more weight than the actual evidence of her own family that [the mother] is happy and adjusted in her daughter's home, participating and enjoying family life, eating well and independently. No photographic evidence was considered. The family state that wherever [the mother] sees family she is "home" and that the walls are of little importance as weighed against [the mother's] need for family. Dr Khateeb and Dr Butler have no first-hand knowledge of [the mother's] behaviour in the home; we have constantly informed the Public Guardian that [the mother] defies all predictions and does not suffer any distress or any other ill effects when residing in the family home, this was confirmed by Jen Turner/Care Manager at The Terraces to the Public Guardian. The Care manager's evidence was not weighted or considered. 11. The Public Guardian has not weighted or considered evidence of the poor quality of food supplied to [the mother] at the aged care facility; her dramatic weight loss as reported by the Care Manager at the aged care facility, that is a result of the poor quality of food and the findings of Bond University, The Lantern Project, using food at the aged care facility as an example of the poor quality of food in aged care facilities. 12. The Public Guardian makes a personal judgment about the distance [DII] has to travel in order to see her mother that [DII] says results in [the mother's] isolation and deterioration. The distance is said to be "40 minutes' as if this is not much. However, this is often up to an hour, especially during holiday time and weekends as [the mother] resides on the Gold Coast. The decision does not respect family values, expressed through generations, to support their loved ones that are elderly and frail on a daily basis by being in close proximity. 13. [The mother] has a history of anxiety that has been more present whilst being in the aged care facility where she is left wondering why she is there and where her loved ones are; her behaviours of shutting down, sleeping, getting agitated are symptoms of her anxiety. The evidence of the prescribing and administering of the drug Risperidone to deal with the agitation is not weighted however this is strong evidence that [the mother] is not settled or comfortable in the aged care facility. 14. The Public Guardian make[s] formulaic and not individual findings; only family can provide the proper response to this situation. The interference of the Public Guardian in preventing [the mother] from living with her family is cruel.

Background

The Respondent Public Guardian is the appointed guardian of the Applicants' mother, who is 87 years of age and suffers from dementia. The Applicants, DII and DKH, are two of the mother's three daughters. The third daughter (R) resides outside Australia.
As the mother's guardian, the Respondent has the authority to make decisions about her access and accommodation.
In June 2017 the Applicant DII proposed to the Respondent that her mother should be moved out of her accommodation at the aged care facility and back into the home of DII, or to another aged care facility closer to where DII lives. She claimed that her sister R had placed their mother into the accommodation at the aged care facility against the wishes of the other two sisters. She proposed that her mother should move out of the aged care facility because the sister R was moving overseas.
The Respondent decided on 14 December 2017 that the mother should remain living at the aged care facility.
The Applicant DII sought an internal review of that decision. The decision was upheld on 2 February 2018.
On 7 February 2018 the Applicant DII filed an Application for Administrative Review of the Respondent's decision.
On 28 March 2018 the mother's other daughter was joined as a party to the proceedings in accordance with the provisions of s 44 of the Civil and Administrative Tribunal Act 2013 (NSW). She was allocated the pseudonym DKH.
The proceedings were heard by the Tribunal on 6 and 19 April 2018.

Evidence

The Applicant DII relied on her affidavit of 13 February 2018 and on various letters of support, including one from Mr RJC. Mr C gave oral evidence and was briefly cross-examined by Ms Rose of counsel, for the Respondent.
His evidence was that he had been a close friend of the family for over 40 years. He said that the Applicant DII had raised her daughter, J, and that the daughter had grown up with her.
With respect, very little turned on Mr C's evidence.
The Applicant DII told the Tribunal that she wished to make an opening statement, which was extremely lengthy. It was, in effect, unsworn evidence-in-chief.
In her statement, the Applicant said that in 2013 her mother moved to Kingscliff from Sydney to be near the Applicant's sister R.
In 2014 there was a plan made for the mother's long-term care. The Applicant said that in May 2015 she discovered that an amount of $60,000.00 was missing from her mother's account and she accused her sister of misappropriating the funds. She said that the sister's intention was to move overseas with her husband and put the mother into a nursing home.
The Applicant detailed various complaints about the care of her mother at the aged care facility, including that her mother was being overmedicated, especially with the drug Risperidone. She had put proposals to the Public Guardian but her proposals had not been accepted or given proper weight. She complained that no consideration was given to the fact that when her mother spent time with her at her home her physical condition improved daily. By comparison, the Applicant said that the food at the aged care facility is "disgusting". She and her sister DKH attended a Guardianship hearing on 21 March 2018, seeking to be appointed their mother's guardians. Their sister R successfully sought an adjournment of the proceedings. The Applicant DII also complained that her mother had been molested at the aged care facility by an elderly male patient.
The Applicant DII cross-examined the Acting Principal Guardian, Ms Sharni Kondrat, at some length, initially on 6 April and continuing on 19 April 2018.
Ms Kondrat told the Tribunal that she had been the mother's guardian since December 2016 and the Guardianship Order expires in August 2020. She said that she had visited the mother in September 2017 and February 2018 but was unable to obtain instructions from her because of the extent of the mother's dementia. She had spoken to both Applicants, their sister and DII's daughter J. She had also spoken to staff at the aged care facility, to Dr Katrina McLean, the mother's treating general practitioner, and to Dr Mohammed Khateeb, a consultant geriatrician. She denied that she had spoken to another geriatrician, a Dr Butler. She was of the view that the Applicants' mother requires a high level of care.
Ms Kondrat's evidence was that Dr McLean was of the view that the mother should remain living at the aged care facility. In a telephone conversation with her, Dr McLean had said that she believed that the mother's medication regime was appropriate and that she should remain living at the aged care facility.
Ms Kondrat also said that she had had a telephone conversation with Dr Khateeb, who had expressed the opinion that the aged care facility was a very good nursing home and the mother should stay there.
Ms Kondrat said that she weighed the medical advice heavily.
Ms Kondrat also said that, in her inquiries, the Applicants' sister R and DII's daughter J both opposed DII's proposal to look after the mother at her home and said that she should remain at the aged care facility.
Ms Kondrat told the Tribunal that she had had conversations with Mr John Gregory and Ms Gail Sherlock of the NSW Trustee and Guardian and, as a result, believed that if the mother were to go to live at the home of the Applicant DII she would need two full-time carers. This is because the mother needs "24/7" care. She acknowledged that DII was able to contribute the sum of $40,000.00 towards her mother's care but was of the view that the cost of care would be substantial, relying on a breakdown of cost provided by the NSW Trustee and Guardian.
As for the complaint that the food at the aged care facility was "disgusting", Ms Kondrat said that the mother required a soft diet due to her dementia. She also understood that the drug Risperidone was given to the mother quite rarely.
On 19 April, in further cross-examination, Ms Kondrat agreed that Applicant DII had told her that she would put $50,000.00 in an account to pay for her mother's care. She said that she did not believe that the amount of $40,000.00 would be enough to cover the mother's care.
Ms Kondrat also agreed that the mother's daughter, Applicant DKH, had said that she and her husband would pay for one full-time carer for the mother. Applicant DKH had also said that she would travel back on a monthly basis and would provide care for her mother in a block of five days at a time.
It was Ms Kondrat's view that the Applicants' proposal could not possibly cover all the care needed by the mother. She said that the mother would require two full-time carers. She also said that Dr Khateeb did not support the Applicants' proposal.
Ms Kondrat denied that she had rejected the Applicants' evidence about Applicant DI's daughter J. She weighed the need for family access to the mother very heavily because it is important for people with dementia.
Further, Ms Kondrat said that the mother's general practitioner and her geriatrician were of the opinion that the mother's care needs were too high for her to be cared for in the community.
Ms Kondrat gave evidence that she could not obtain a view from the Applicants' mother about her care and reiterated that the decision was heavily weighted on the clinical evidence. She denied that she was biased against the applicants and said that, whilst she was unable to seek the views of the mother herself, she sought the views of all interested parties. She had an obligation to record objectively all the information that was provided to her.

The Relevant Law

Counsel for the Respondent has provided a useful submission about the Tribunal's jurisdiction and powers and the relevant considerations.
The Tribunal has administrative review jurisdiction over the accommodation decision by virtue of s. 80A of the Guardianship Act 1987 (NSW), regulation 17 of the Guardianship Regulation 2016, s.9 of the Administrative Decisions Review Act 1997 (NSW) and s.30 of the Civil and Administrative Tribunal Act 2013 (NSW). The Tribunal must conduct a merits review of the accommodation decision, to determine whether the Respondent's decision for the mother to remain at the aged care facility is the correct and preferable decision, having regard to the material before the Tribunal. The Tribunal exercises a "protective jurisdiction", and the welfare of the mother, the protected person, is always the paramount consideration (IR v AR [2015] NSWSC 1187 at [48]; P v NSW Trustee and Guardian [2015] NSWSC 579 at [53]). The exercise of the Tribunal's jurisdiction affecting a person in need of protection must be for the benefit of, and in the best interests of, that person as an individual (Re Eve [1986] 2 SCR 388). The general principles that the Tribunal must consider are set out in s.4 of the Guardianship Act 1987.

Submissions

The Applicants submit that the Respondent did not take various issues into account or did not weigh the evidence correctly, when making the accommodation decision, in respect of the matters set out in paragraphs [3] and [4] above. The Applicant DII also submitted that her daughter, J, should not have been consulted about the accommodation proposal, as she is not a stakeholder and did not visit the mother.
The Respondent submits that all of the Applicants' concerns were addressed in the lengthy cross-examination of Ms Kondrat on 6 and 19 April 2018.
The Respondent submits that each of the principles in s.4 of the Guardianship Act was considered when the accommodation decision was made on 14 December 2017. This decision was upheld in an internal review.
It was submitted that Ms Kondrat had sent to the Applicant DII an email on 7 July 2017 setting the matters that her proposal should include and the evidence needed to support the proposal. This evidence included: 1. Medical clearance from the Applicant's General Practitioner as Ms Kondrat was concerned about the Applicant's inability to drive comfortably, impacting on the care she could provide to her mother; 2. Information about the Applicant's other caring responsibilities, including her grandchildren; 3. Advice from the mother's treating doctor outlining the risks and benefits of the mother returning to live in the community; 4. A service plan outlining the formal and informal support proposed to care for the mother and how it would be paid for; and 5. Advice about how the mother's extended family could access her if she lived with the Applicant due to documented conflict between the mother's relatives.
The Applicant certainly attempted to provide the information, which included stating that she would place no restrictions upon extended family members visiting her mother. However, Ms Kondrat said in her evidence that the Applicant's response was insufficient to support a decision to move her mother away from the aged care facility for these reasons: 1. She was concerned that the chronic pain suffered by the Applicant as a result of a car accident would hinder her ability to look after her mother; 2. The Applicant had her grandchildren living with her for half of each week; 3. Dr Khateeb, the geriatrician who provided an independent medical report assessing the care plan, concluded that the mother should not be moved; 4. The mother's treating GP, Dr Mclean, told Ms Kondrat that it was her "gut instinct" that the mother should not be moved from the aged care facility; 5. Jennifer Turner, the Care manager at the aged care facility, did not think it was in the mother's best interests to move; 6. Ms Kondrat considered that the Applicant had insufficient financial resources to pay for the two full-time carers that she believed the mother needed; 7. The Applicant's other sister and the Applicant's daughter did not support the proposed care plan; and 8. Some of the mother's family members may not be able to visit the mother, or feel comfortable visiting the mother, at the Applicant's home.
The Respondent submits that the Applicant's care plan was carefully considered and had considered the report of Dr Khateeb, the specialist geriatrician who the Applicant DII had asked to provide a second opinion in relation to the mother's care and accommodation. Dr Khateeb concluded that a move could be detrimental to the mother and said that one would have to be "very cautious" in allowing that decision (to move the mother) to be made.
The Respondent formed the view that the medical evidence from Dr Khateeb and Dr McLean did not support the Applicant's complaint that the mother was being over-medicated at the aged care facility.

Conclusions

The Applicant DII clearly wants her mother to live with her, and is supported in this wish by her sister, DKH. She believes that she can provide better care for her mother than that which is provided by the aged care facility, and she claims that the Respondent has not given proper weight or consideration to her claims. This view is not shared by the other sister, who now lives out of Australia, or her daughter, who the Applicant states does not visit the mother anyway.
The Applicant DII has also accused the Acting Guardian, Ms Kondrat, of bias against her. This has been denied by Ms Kondrat, and the Tribunal sees no evidence of bias.
It is clear that Ms Kondrat has relied heavily on the medical evidence from Dr McLean, the mother's General Practitioner, and Dr Khateeb, the specialist geriatrician. Whilst it appears to be the case that Dr McLean spoke of a "gut instinct", the report by Dr Mohammed Khateeb of 14 November 2017 is a detailed and comprehensive document.
Dr Khateeb states that he is a Specialist Geriatrician and Physician. He regularly assesses cognitive and mental capacity in patients. He visited the mother on 5 November 2017.
Dr Khateeb diagnosed the mother as showing signs of severe dementia. He went on to say: "Otherwise, there is nothing remarkable apart from signs consistent with frailty, global muscle weakness, apraxia and the features of Parkinsonism as described above. All of these would constitute a high falls risk. She is incontinent. She requires full supervision, including directions to her room, toilet, the dining room and full assistance with her basic needs and personal cares." [1]
Further, Dr Khateeb recommended that: "[the mother] has advanced dementia, is frail and by all accounts requires 24 hour nursing care. If this was not provided, the risk to her quality of life would be immense. There is a risk of falls, aspiration, pressure ulcers, malnutrition, serious physical injury, hazards due to worsening behaviour and cognition, non-compliance with medications to mention just a few… My opinion is that [the mother] requires 24 hour nursing care as a first option, however a fully trained carer, along with readily available medical care, is a possible option if conducted properly with good supervision and full awareness of the care needs of the patient." [2]
Dr Khateeb also stated: "I have no doubt in stating that [the mother] seems very well settled in [the aged care facility]…I must say that all of the staff that I talked to seemed to know her very well, are well versed with her cares and she was comfortable being amongst them. I would add that the care of the dementia person is a unique experience and requires compassion, vigilance and knowledge and I believe that, at this stage, it is being very well addressed at [the aged care facility]." "I must inform that [the mother's] medical, cognitive and general status is expected to decline in the future but I cannot put a time frame or the rate at which that decline will take place."
As to the proposal to move the mother from the aged care facility, Dr Khateeb stated: "A move can be detrimental and in that I agree with my colleague, Dr Sean Butler, as it disturbs the entire orientation and visuo-spatial settings of a person with cognitive impairment. However, that is something that can be adjusted to, but with what difficulty and speed, I am unable to predict." [3]
Whilst Dr Khateeb considered the Applicants' proposals that the mother either moves out to live with her or moves to another nursing facility closer to where Applicant DII lives, Dr Khateeb came to this view: "In conclusion, after considering all aspects (both medical and social), the best option for [the mother] is to stay in the facility where she is, receiving the optimum level of care which she requires." [4]
Whilst the Applicant DII submits that Dr Khateeb said that the mother would adjust to a move, it is clear that Dr Khateeb does not recommend a move at all, but recommends that she stays where she is.
The Applicants claim that the Respondent read Dr Khateeb's report "selectively", but the Tribunal's reading of the report is that the overwhelming thrust of the report was that Dr Khateeb recommended that the mother should not be moved from her current accommodation, which is clearly meeting her need for care.
In the Tribunal's view, Dr Khateeb's report provides strong evidence in support of the Respondent's decision that the mother should remain living at the aged care facility. Dr Khateeb is an independent specialist geriatrician and physician, and it is unsurprising that the Respondent placed such weight on his report and recommendation.
Dr Khateeb was clearly aware that the mother was being prescribed Risperidone, because it was listed as one of her medications on his report. He did not say that he believed that the mother was being over medicated.
The Tribunal must consider the general principles set out in s.4 of the Guardianship Act 1987, which are: It is the duty of everyone exercising functions under this Act with respect to persons who have disabilities to observe the following principles: (a) the welfare and interests of such persons should be given paramount consideration; (b) the freedom of decision and freedom of action of such persons should be restricted as little as possible; (c) such persons should be encouraged, as far as possible, to live a normal life in the community; (d) the views of such persons in relation to the exercise of those functions should be taken into consideration; (e) the importance of preserving the family relationships and the cultural and linguistic environments of such persons should be recognised; (f) such persons should be encouraged, as far as possible, to be self-reliant in matters relating to their personal, domestic and financial affairs; (g) such persons should be protected from neglect, abuse and exploitation; (h) the community should be encouraged to apply and promote these principles.
In all the circumstances, the Tribunal is of the view that it is in the mother's best interests to remain living where she is at the aged care facility, where she has been residing for some time and appears to be well settled.
The Guardian appears to have considered and applied the relevant principles in s.4 of the Guardianship Act and was not in error in placing such a great deal of weight on the medical evidence in making the decision that the mother should continue to reside at the aged care facility.
The correct and preferable decision is for the mother to remain living in her present accommodation at the aged care facility.
Accordingly, in accordance with the provisions of s.63 of the Administrative Decisions Review Act 1997, the Tribunal makes the following order.

Order 1. The decision of the NSW Public Guardian made on 14 December 2017 for the Applicants' mother, known as DKI, to continue to reside at the aged care facility where she currently resides is affirmed.

Endnotes

Report of Dr M. Khateeb 14/11/2017 at Tab 6 of the s.58 documents
ibid
ibid
ibid 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: 31 August 2018

DII v Public Guardian

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