DJA v Public Guardian

NCAT Administrative and Equal Opportunity|2018-04-13

What these proceedings are about

The subject person is a 90 year old woman. The Public Guardian has been given authority to make decisions about where she should live. The Public Guardian decided that she should live in a residential care facility This decision was made on the basis that it was no longer suitable for the protected person to live in her own home, due to occupational and health issues resulting in a number of falls and subsequent injuries in addition to general health problems. The applicant (the co-guardian and daughter) objects to this decision and believes that it is in the subject person's best interests to stay in her own home with the applicant as her personal carer.
These proceedings relate to the decision of the Public Guardian in respect of the placement in a residential care facility. The applicant and the first respondent are the joint guardians of the protected person. The applicant has decision making authority in respect of health care, consents for medical or dental treatment, and services to be provided to the subject person. The first respondent has authority for accommodation and access decisions. The decision under review relates to a decision by the first respondent to place the subject person in a residential care facility.
The applicant (a daughter of the protected person) has sought review by the Tribunal of that decision on the basis that it is not in the best interest of the protected person. For the reasons given below, I have decided that the decision to place the protected person in a residential care facility is the correct decision.

Legislation

Section 80A of the Guardianship Act 1987 ('the Act') makes provision for administrative review by this Tribunal, of decisions by the Public Guardian in connection with their functions. The section provides: 80A Administrative review by Civil and Administrative Tribunal of guardianship decisions of Public Guardian (1) An application may be made to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of a decision of the Public Guardian that: (a) is made in connection with the exercise of the Public Guardian's functions under this Act as a guardian, and (b) is of a class of decision prescribed by the regulations for the purposes of this section. (2) An application under this section may be made by: (a) the person to whom the decision relates, or (b) the spouse of the person, or (c) the person who has the care of the person to whom the decision relates, or (d) any other person whose interests are, in the opinion of the Civil and Administrative Tribunal, adversely affected by the decision.
I am satisfied that DJA has standing to make her application as a person whose interests are adversely affected by the decision under review.
Clause 17 of the Guardianship Regulation 2016 provides for administrative review by the Tribunal of guardianship decisions of Public Guardian in respect of the requirements in s80A (1) (b) of the Act. The clause provides: 17 Administrative review by Tribunal of guardianship decisions of Public Guardian For the purposes of section 80A (1) (b) of the Act, all decisions made by the Public Guardian in connection with the exercise of the Public Guardian's functions under the Act as a guardian are prescribed.
Sub-section 63 (1) of the Administrative Decisions Review Act 1997 ("the ADR Act") sets out the role of the Tribunal in determining an application for administrative review under the Act. That role 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."
Subsection (2) of section 63 provides that for the purpose of making my decision I may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision.
Section 4 of the Act sets out the general principles relating to the exercise of guardianship functions under the Act. Those principles apply in these proceedings to the Tribunal and how I might arrive at the correct and preferable decision. The section provides: 4 General principles 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 making the decision under review the Public Guardian was under a duty to comply with s 4 by observing each of these principles. The Tribunal is subject to the same duty. It is the application of those principles and the outcome that is the contested issue between the applicant and the respondents.
Based on the above matters, I am satisfied that the Tribunal has jurisdiction to deal with the matter.

Background before the Tribunal

The applicant lodged her application within time and there is no dispute that the Tribunal has jurisdiction to hear the matter. When the matter first came before the Tribunal on application the second and third respondent were joined as parties to the proceedings. In addition, a further application to be joined from a third party was refused. An earlier stay lodged by the applicant was withdrawn on the first listing and therefore the decision has stood since November 2017.

Written material

At hearing the parties filed a large volume of written material. The first respondent provided 846 folios of material (Exhibits R-1-4) comprising the s58 (ADR Act) documents. Some of this material was only obtained after the proceedings were commenced. A further bundle (comprising clinical notes from medical records produced under Summons - R-7) was received at hearing. The first respondent also filed detailed written submissions.
The second and third respondent filed two detailed compendiums of material (Exhibits R-5 and R-6) which partly comprised submissions. All of the respondent material was received by the Tribunal.
The applicant filed a number of items of written material in support of her application. Some of this material consisted of medical or expert reports. This material was examined at hearing with the authors giving evidence. The applicant gave evidence and a video file of a number of short items was played to the Tribunal in the presence of the parties at the conclusion of the second day of the hearing. The applicant's lawyers provided written submissions in addition to this material and the application for administrative review.
Included in the material were the relevant decisions of the Guardianship Division of the Tribunal.
The applicant set out in her application for review the following grounds: Disagree with the decision to place (subject person) at (residential care Facility) because it is not in her best interest and it is not the correct and preferable decision.

Protected person's attitude to the proceedings

Section 4 of the Act requires me to have regard to the views and to give paramount consideration to the welfare and interests of the subject person. 4 General principles It is the duty of everyone exercising functions under this Act with respect to persons who have disabilities to observe the following principles: … (d) the views of such persons in relation to the exercise of those functions should be taken into consideration,
At the commencement of the hearing I enquired of all parties as to what the position was in respect of the subject person. Was she aware of these proceedings, did she have a view on what should conclude from the proceedings and was she available to either observe or if required participate in the proceedings. At the outset it was apparent that this inquiry was unexpected but the applicant's counsel indicated they would take instructions about the possibility of a phone call and line being made available. Later on day one they indicated that they would look into the subject person attending on the second day of the hearing.
Whilst no input had been formally sought from the subject person various parties gave contrasting and at times conflicting evidence as to the subject person's position on the placement. This was especially the case with the applicant's oral evidence at hearing and the selected items of video footage which was provided on a limited tender. The parties did submit that the subject person had no knowledge of the proceedings and for that reason (and noting her age and condition - dementia diagnosis) alerting her and having her participate was of no utility. I note that on the second day of the hearing the subject person was not present nor was there any further submission about her attendance and or participation.
I also note that the subject person has a long standing diagnosis of dementia (almost a decade).
Having regard to the oral submissions of the parties in response to my inquiry at the start of the hearing, and the fact that there is some evidence of the subject person's views and wishes which I can directly address, in addition to the matters outlined in the preceding paragraphs, I am satisfied that the matter can proceed without any formal participation of the subject person.

The hearing

The applicant relied on all of her material filed in the proceedings and the material in the first respondent's s 58 documents.
The first respondent relied upon the large amount of s 58 material and summons material. The second and third respondent relied upon the material referred to above as 'R-6' with only the second respondent also relying on 'R-5'.
In an opening submission the applicant's representative stated their position. The applicant wishes for the subject person to move back home, and if she remains in the residential care facility then her home will need to be sold in order to pay the accommodation bond.

Applicant's evidence at hearing

The applicant in evidence in chief outlined that the necessary home modifications could be carried out 2 weeks prior to her mother coming home. The applicant spoke about her mother's leg wounds since being in care and that these were exacerbated by getting the wound or dressing wet. In addition there was a dispute between the nurse and the GP, with the nurse believing that the dressing needs to be redone every 5 days and Dr 'F' (protected persons G.P. for last 10 years) stating that the dressing needs daily changing. Other matters were referred to concerning minor injuries caused by the bathroom door handle.
The applicant stated that she visits her mother every day for an hour or longer but occasionally she has other commitments which prevent this. The applicant stated that her mother's health had deteriorated since the placement in residential care, and that she is given little assistance including with her toileting.
The applicant had raised her concerns with a number of staff and advised that she had also conveyed these concerns with the relevant officer at the Public Guardian, Ms Horton. The applicant advised that Ms Horton had said that the care provided for the subject person by her in her home was more than adequate up until the end of 2017.
The applicant gave evidence that she had contacted an ambulance when necessary in respect of significant illnesses or infections, and agreed that the subject person's propensity for falls had increased and infections resulting from the skin breaks. However these falls were in the applicant's view 'low impact falls'.
In cross examination the applicant was asked about the occupational therapy (OT) reports and the recommendations for minor modifications to the subject person's home contrasted with the major modifications report. The major report was prepared by Southern OT. The applicant stated that they had said that the subject person would be best in their own home.
The applicant was questioned about taking the subject person for outings to her home and other locations since her placement in residential care. Issues were canvassed about problems with her brothers having access to the subject person. The applicant was questioned about why she appeared to be acting contrary to prearranged access matters. A Christmas Eve access by one of her brothers was thwarted by the applicant taking the subject person on an outing. The applicant stated that she had not read the relevant email making that arrangement.
In response to a series of questions about the second and third respondent accessing their mother and disputes with staff about taking her on outings, the applicant advised that she was not used to having to seek permission and that the subject person was used to going out regularly.
Further matters were raised concerning the applicant making ongoing appointments on weekend days for the subject person and how this clearly interfered with her siblings seeing their mother (due to weekday work commitments). The applicant denied that there was any deliberate action on her behalf and in respect of the Public Guardian endorsing the agreed access arrangements the applicant stated that she didn't realise the impact that those arrangements would have on her taking her mother out.
A further series of questions were put concerning the inappropriateness of taking the subject person home repeatedly as this was confusing and distressing when she had to leave and return to the residential facility. The applicant acknowledged various problems with this approach but denied that the subject person was distraught when she returned to the residential care facility. The applicant claimed that there were necessary and legitimate reasons for going against the wishes of staff, the Guardian and others at various times.
The applicant stated that one OT assessor had stated that the home was a safe place and the subject person could return home, however that assessor was the author of a detailed 11 page OT assessment which qualified such a position on significant improvements or modifications and additional care.
The applicant was asked about the subject person's dementia and claimed that it had been 'pretty stable since 2009'. In the applicant's view the noticeable deterioration of the subject person had been due to other health issues.
The subject person's medical history during the period when she was living at home in 2017 was summarised. It was suggested to the applicant that there had been deterioration in the protected person's health. The applicant agreed that the subject person can move around in the residential care unit more easily and independently but stressed that in the residential care unit the subject person still has falls and that these are not initially detected or witnessed.
Further issues were raised concerning the applicant telling the subject person that her boys won't let her go home and how this distressed the subject person and caused a scene. The applicant denied that this was deliberate, even if the Public Guardian was responsible for the placement arrangements. When asked why she made that statement the applicant stated that it was made, 'in the heat of the moment'.
A series of questions followed concerning the applicant's actions and responses to health issues involving her mother since being placed in residential care. The applicant disputed the purported social and to some extent health and treatment benefits of the care facility. The applicant attended an assessment by Dr 'S' who specialises in Geriatric and Perioperative Medicine. The applicant was asked why she had not been frank with the doctor and it was suggested that she had put across a biased view. The applicant denied this.
Further questions were put by the second respondent concerning what steps the applicant had taken to prevent a reoccurrence of the subject person's accidents and distressing incidents. The applicant had changed the medication, organised the OT assessment to deal with the fall issues and tripping up the step, as well as a wheelie table and removing excess furniture for the home. In addition the phone had been relocated to the wall.
The applicant referred to the outstanding matters that she would attend to including that she would get a ramp installed at the front of the house. The applicant repeated that the subject person had been continually happy to stay in her home.
When asked about what skills the applicant has gained in respect of providing care the applicant stated that she is involved with carer's groups and has done a First Aid course which she keeps up to date. When asked if she was still collecting the carer's benefit notwithstanding the subject person obtaining a permanent place in November 2017, the applicant advised that this benefit stopped being paid as at 18 February 2018.
Questions were asked about the incident described in [48] above and why she filmed the distress rather than doing something to calm the subject person such as distracting them. Other questions were put concerning how the applicant would look after the subject person if she moved back home. The applicant said that she would access other care assistance such a 'C' cottage (respite care), and the Sydney Adventist Hospital.
Other questions focused on an alleged failure to let the other children know about developments in the subject person's condition. Further questions focused on the applicant's own respite relief as a carer and whether the situation was ideal for the subject person.
The Tribunal inquired into the background of an incident of the type referred to in paragraphs [41]- [43 whereby the applicant told staff that if they tried to stop her taking the subject person out she would call the police. The applicant stated that she didn't know why she said that but that she was angry and confused.

Evidence of Dr Fitzmaurice

The subject person's general practitioner (G.P.) Dr Fitzmaurice gave evidence by telephone. In summary his evidence was that he had been the protected person's G.P. for 10 years and had authored many reports concerning her as a result. The G.P. was aware of the tension between the applicant and her brothers about the subject person.
Reference was made to an opinion in a report dated 5 September 2017, concerning it being in the subject person's best interest to stay at her home. The G.P. advised that he came to that opinion after discussions with the subject person, assessment of the evidence, the applicant's information and many years of observing the patient. The G.P. gave evidence that in his opinion a return to her home permanently would improve the subject person's mental health, and that his opinion from the 5 September 2017 report had not changed.
The G.P. stated in his evidence that the applicant is an exceptional carer for the subject person and that her care is more than satisfactory, and was always ready to seek assistance when required. When asked about the challenges facing the applicant as the subject person's health issues increase, the witness advised that he had observed this decline since the subject person entered care through mental health issues, falls, Urinary Tract Infections (UTI), constipation and a rectal prolapse.
The G.P. gave evidence that UTI's are common in older people and that these were present both when the subject person was at her residence and at the residential care facility.
In cross-examination the witness was asked about his dealings with the Public Guardian about the placement and was taken to a note about the matter which it was submitted was supportive of the placement decision. The witness advised that the contents of the note are on the basis that he saw no reason to object to the placement from a care perspective. The witness also conceded that the care provided at the facility for the subject person is 'quality care'. The witness did not recall agreeing to the placement or saying that he was pleased with it, but noted it was in the same general geographic area as her home. The witness also did not recall saying that he had no objection from a professional perspective.
The witness did recall that the subject person had suffered falls and similar incidents in her home, however he agreed that there had been no hospital admissions since the residential care placement. When asked about the falls in the care facility that were referred to by the applicant, the G.P. said that he cannot tell the Tribunal what dates those were. The witness stated that he has more than 1,000 patients and sees 250 patients some weeks.
The witness stated that he was aware that the applicant's brothers believe that the applicant does not give them access to their mother. However the witness denied that this assertion by them was the case.
Further questions were asked of the witness by the second respondent. Many of these questions concerned an earlier placement in southern Sydney and queries about where the G.P. obtained some information. These matters do not primarily concern the central issue in these proceedings.

Evidence of Dr Shaheen

Dr Shaheen gave evidence by telephone at the hearing. In evidence in chief the witness confirmed that she did not read or apply the NCAT Expert Witness Code of Conduct to her report. The reason given was that she did not realise that the report was being used as evidence in legal proceedings.
Dr Shaheen is a medical practitioner who specialises in geriatric and perioperative medicine.
In cross-examination the expert was asked about her report dated 27 February 2018. There was some debate as to whether the report was written following the content of the applicant's solicitor's letter of instruction. The witness advised that she received the letter prior to writing the report, and the report was based on her observations of the subject person amongst other things.
The witness admitted that the quality of her advice might have changed if ideally she was able to speak with all of the family, not having two thirds (the sons) absent. The witness confirmed that she did not speak to them by telephone or meet with them.
A series of questions were asked about the residential care facility. In response the witness advised that she understood that it was a dementia unit providing 24 hour care and was a locked facility. Counsel took the witness through the layout of the Unit and suggested matters relating to the care model. The witness advised that it would all depend on the behaviour of the other residents. When asked as to what inquiries the witness had made with the facility prior to completing her report she advised that she had attempted to call but had not received a call back.
It was suggested to the witness that the lack of falls involving the subject person since entering the facility was not raised. The witness agreed that she had not received that information but advised that she was told that the protected person had on one occasion been found on the bathroom floor.
In her own practice the witness advised that as an ideal she tries to have her patients remain at home as long as possible.
The second respondent sought an opinion as to how the witness would classify 6-10 hospital admissions over a 12 month period as contributing to an Alzheimer's patient's deterioration. The witness agreed that this would have a significant adverse impact on such a person's mental condition.

Evidence from registered nurse / assistant manager of care facility

The assistant manager of the residential care facility gave evidence at the hearing. The witness is a registered nurse (RN) of nine years experience and oversees the clinical portfolio of the facility.
The witness gave evidence that there are 9 residents in the subject person's unit, and is designed as a 'social model of care'. He and his staff have an understanding of what the subject person's individual needs are and managing those needs around that.
The witness outlined how the residential care facility is a purpose built dementia specific facility. Aspects such as architecture, lighting, small outdoor areas and other environmental aspects facilitate this purpose. The kitchen is in the middle and the unit layout is 'L' shaped. The line of sight is from the corridor to the rooms and there is an open rectangular space so that residents can move freely.
The idea behind this facility is that it resembles an apartment as distinct from a hospital. Whilst the facility is locked visitors are able to come and go. The rooms are also designed to easily accommodate wheelchairs, walkers etc. The doors are wider than the usual standard.
The witness dealt with the subject person initially during her respite placement. His evidence was that in respite they try to apply the same type of care that they would give a resident. The witness had assessed the subject person on 23 October 2017 by meeting with her and making observations. His observations were that the subject person was witty, used humour, and was alert. He also noticed that she was able to sit in a chair for a reasonable period of time.
The witness documented seven different types of skin integrity wounds. He was not aware of any falls by the subject person at the residential care facility. The witness had knowledge of one chest infection for which she was treated at the Sydney Adventist Hospital. The witness was not able to recall whether the subject person had presented with any UTI's whilst in residence.
In respect of the care arrangements the witness gave evidence that there are two care staff rostered for the morning and afternoon shifts. One care staff member is on the premises overnight (for the space of 9 + 1 Units). An R.N. is on duty all of the time. The care staff are empowered to refer emerging care or health issues to the R.Ns. Care staff are the equivalent to an assistant in nursing (Enrolled Nurse).
The witness gave evidence that he is located at the facility when working and he moves through the various Units on a regular basis. Individual care necessitates a dynamic approach to care rather than a linear approach. The facility gleans the resident's routine and preferences from both the resident and their family. In addition they review the medical history of an incoming resident for attention to individual behaviours. An example was given that a dementia patient does not usually call for help or press the buzzer.
The witness was asked as to the cause of the regular skin tears which the subject person presented with. The witness advised that the subject person's skin integrity is compromised by regular contact due to spatial challenges caused by a lack of depth perception. As a result they incur many bumps and grazes on their legs.
When asked specifically what a G.P.'s involvement with a resident entails the witness advised that usually they oversee the clinical care and reiterated that the G.P. has the resident's medical history.
The witness was taken to some of the medical records obtained by the respondent under summons, and confirmed notes of conversations with family members, evidence of old wounds and current wounds and treatment (up to 8 April 2018) from that material. The witness advised that the subject person's current wounds are wounds on the right leg. They are not large but they need to be actively managed.
In respect of a Care Plan Assessment the witness advised that they must look at the whole group and ascertain whether the needs are high, medium or low care. The basis is to place residents in the different Care Units with one another. The subject person has an 'intermediate' ranking and the assessment was done in the community prior to them being offered a place. The witness had no knowledge of any hospital admissions since November 2017.
Under cross examination the witness was asked to elaborate on the facility. He advised that there are nine residents per 'apartment' and six apartments in total all but one having nine residents. The sixth apartment has 12 residents.
The witness advised that the night shift runs from 9:15pm to 6:45am. The ratio of night staff is one to two apartments but outside of the night shift the ratio is much higher. In answer to a question as to how long would it take for staff to come from the other apartment to an incident the witness advised that it takes approximately one minute. In addition there is always one R. N. on duty for the total 57 residents, and two managers on site within the building. The witness stated that they would never remove both staff from an apartment if there was an incident, but one can be called on to assist.
When asked about a serious medical issue such as for example a broken leg, the witness advised that staff would administer immediate first aid until emergency services (paramedics) would take over.
In respect of the security arrangements the witness advised that the R.N. has the master key to the building but the subject person can lock her room from inside. The witness was not aware of any instances of the subject person not locking her door.
The witness was also asked what the 'high care' placement rating entails. The witness advised that it comprises the 12 resident Unit (the 6th Unit) where there is a higher ratio of staff to residents.
The witness stated that the subject person can perform and attend to many tasks independently such as eating lunch and socialising whereas other residents may require prompting and assistance. When asked about the subject person's toileting the witness agreed that she requires prompting to go to the bathroom, but sometimes she does this of her own volition. The witness confirmed that the level of assistance provided depended on her actual needs and what was happening on the day.
The applicant's counsel took the witness to one specific incident in care. The witness was aware of the issue but remained unaware as to why a G.P. could not be contacted over the matter on the day.
The Tribunal asked a number of questions about the training and qualifications of staff. The Nursing Assistants are trained in community nursing leading to a Certificate IV. The day shift is 8: 00am -5:00pm and staff can call in to the facility and speak to on duty staff out of hours.
The second respondent asked a number of questions about his mother's care needs. In response to a question concerning whether the subject person would be treated differently (or better) in hospital the witness advised that the treatment would not necessarily be better, but that different products and procedures would be used. When this question was extended to home nursing the witness advised that he could not give an accurate answer.
Questions about treatment responses including leg stockings were met with advice that this was carried out in consultation with the G.P. When asked if some of these leg injuries could arise on outings the witness advised that he did not have the relevant knowledge to answer categorically. Other questions concerning the second respondent's concerns with his mother going out with the applicant on many outings were put. The witness advised that he did not have sufficient information as to what occurs when the applicant takes the subject person out of the facility. The witness confirmed that they do not usually restrict a family member from taking a resident on an outing. He was unable to express an opinion as to whether outings involving the subject person were too long.
In respect of night time monitoring the witness advised that the door frames have movement sensors so staff know if a resident is up and about at night. Reference was also made to a geriatric program which can offer further services within (and without) the facility as necessary. If high-end pain relief was needed for a resident paramedics can assist and assess for hospital admissions. In response to a direct question as to whether in his opinion the Residential Care Facility could manage any distress of the subject person, the witness confirmed that it could.
The third respondent asked a number of questions about restrictions on family interactions with the residents. The witness confirmed that there were no restrictions on visiting. The witness also confirmed that the facility's manager can manage the protected person's distress. When asked whether the applicant visited the subject person every day the witness advised that he could not attest to this proposition due to a lack of knowledge.

Evidence of Senior Guardian

Ms S Horton the acting Senior Guardian (NSW Public Guardian) gave evidence on behalf of the respondents. The witness outlined in evidence in chief her 35 years experience and her qualifications in mental health, counselling, disability and age care. The witness is the delegated decision maker in the decision under review.
The witness advised that an additional reason for keeping the subject person in the current residential care facility is because there has been no verified documented falls over the last six months. The witness visits the facility regularly to see the subject person, and participate in any necessary case conferences.
The witness was asked about the report prepared by Southern OT concerning home modifications. The witness advised that as the modifications had not been done she would not agree to the subject person returning home. However even if the modifications were completed the witness would require an independent Geriatrician report saying that it was appropriate for the subject person to return to that type of environment.
The witness had spoken about such a report to the manager at the facility and also that there was a more urgent need for surgery related to the prolapsed bowel and associated discomfort. Other than the surgery and the general skin tear issues the witness was not aware of any other pressing health problems.
The witness advised how previously she had facilitated arrangements for the subject person to visit her brother in southern Sydney when she was still living in her residence in northern Sydney. These visits ceased when the applicant advised the Guardian of the health issues arising 2016-2017.
Since the subject person has been in the facility the third respondent's visiting time has moved from Thursdays to Friday. Everything seems to be working fine and that is the only restriction on the subject person's availability for visitors.
The second respondent asked the witness about Dr Liu's 25 January 2018 report concerning the recommendation that the subject person is: A high level care patient, permanent high-level nursing home care is an adequate accommodation in terms of care needs. The choice is really relying on her person responsible / Enduring Guardian's. The witness advised that as a substitute decision maker she took that advice on board.
The third respondent asked whether he and his brother could be considered as co-operative in respect of dealings with the Guardian concerning their mother. The witness agreed that they were co-operative and that attitude had assisted in managing the subject person's needs.
In cross examination the witness was asked whether she questioned the independence of the medical experts: Dr Fitzmaurice the G.P., Dr Liu, Dr Chan and Dr Shaheen who had all provided material which had been relied on in these proceedings. The witness advised that she took into account the views of all (including family) and also believed that Dr Liu whilst not knowing the subject person to the same level as the G.P. she had seen the subject person over some years.
When asked if the subject person was referred to Dr Liu the witness advised that she did not know. Further questions concerning Dr Liu were put about a perception of a lack of independence. The witness advised that based on her dealing with the Doctor, her views were in the context of the subject person remaining in her own home. The witness had recorded this in the system.
When asked whether the witness would consider the 23 November 2017 report of Dr Liu as not being medically independent, the witness agreed and said that the author had not provided the information sought, but had given an opinion on a related issue.
The witness advised that she spoke to Dr Liu on the telephone and that she advised that she did not wish to discuss any aspect of her report. The witness decided that the report was of limited value as it did not provide the necessary information to make an informed assessment.
Concerning Dr Fitzmaurice (the G.P.) the witness was asked why she viewed his advice as not being independent. The witness advised that she was told by him that his recommendations concerning access would be different if he had not met the rest of the subject person's family, and that his opinion would be very different.
In respect of Dr Shaheen and her assessment of the subject person, the first the witness knew was when she was contacted a day prior to the appointment. When asked whether she had tried to contact Dr Shaheen the witness advised that she had sent an email. Discussion focused on allegations concerning the Dr Shaheen appointment arrangements with solicitor's emails being referred to and questions asked about when such emails were read. The witness could confirm that she read a specific email about these arrangements prior to the hearing date.
Specifically, as the Guardian's delegate, the witness deemed that on all the available information, the appointment with Dr Shaheen was not an independent appointment based on the instructions and the contents of the report.
The witness confirmed that the Public Guardian did send a copy of the Southern OT report to Dr Shaheen. Further examination occurred concerning liaising with doctors and the applicant and when various reports and documents were sent to other assessing professionals. In response to a question in cross examination as to when that report was sent to Dr Shaheen the witness advised that it was sent sometime after 27 February 2018. When asked why it was sent at that time the witness advised that Dr Shaheen had in fact requested the report on 2 March 2018. When asked whether the witness sought an updated report from Dr Shaheen, the witness answered in the negative. When pressed further the witness advised that she sought permission from the applicant to seek an independent report.
The witness gave evidence that she consulted with the applicant on the day that the Public Guardian made their decision re: placement. The witness recalled that she spoke to the applicant in the morning on the day of decision and that the applicant was quite angry and distressed over the matter.
When asked specifically if she saw fit to consult the applicant and obtain her views the witness advised that the situation was that the subject person could not be discharged from respite to her home as the required modifications had not been carried out.

Second and Third Respondent's evidence and submissions

The second respondent made a verbal submission in addition to the written material that he filed. The submission focused on his views concerning the best interest of the subject person. The third respondent advised the Tribunal that he adopted the second respondent's submissions.

Further evidence at hearing

The applicant through her legal representatives pressed for the showing of approximately 30 minutes of video recordings concerning the subject person in recent years. Some footage was apparently from her home whilst other footage appeared to be of the residential care placement from which these proceedings arise. The respondents collectively objected to the receipt and showing of this footage. I maintained some concerns bearing in mind neither party desired the subject person to have any role in these proceedings, and the lack of verification of the contents and context. However I agreed to a limited tender subject to weight and agreed to receive the footage on that basis.
In my view the footage confirmed the apparent current unsuitability of the subject person's residence. The location of the residence was quite apparent from the footage, as were the number of steps down from the house to the driveway where the subject person was seen being assisted into a car on the driveway. That footage (at least in respect of some of the inside and the front of the property) seemed to confirm issues raised in the Southern OT report concerning steps and a lack of level surfaces contributing to trip and fall risks. report
Other footage showed the subject person's interests and hobbies, general demeanour and matters whereby she became stressed and agitated. All of this was consistent with issues which arose in the written evidence of the competing parties. One video consisted of the subject person and the applicant in an ongoing exchange where the subject person stated repeatedly that 'I just want to go home.'

Applicant's submissions

The applicant made oral submissions in addition to written submissions filed in the proceedings. The applicant submitted that multiple reports Dr Fitzmaurice (the G.P.) Dr Smith, Dr Liu, Dr Chan and Dr Shaheen were all concluding and recommending that it is in the subject person's best interests to go home to her residence and to be cared for by her daughter (the applicant).
The applicant conceded that the subject person requires a high level of case but this in the context of her daughter caring at the residence is in her best interests.
The Tribunal invited a submission on what weight I should attach to the expert evidence considered in the hearing. The applicant submitted that the Tribunal should apply significant weight to the reports of Dr Fitzmaurice and the other reports which they relied upon in the proceedings.
In addition the applicant submitted that the Department of Veterans Affairs (Cth) was willing to help with funding to carry out the home modifications. The applicant (consistent with the application) submitted that the best outcome was for the subject person to return home. If there was a medical emergency the applicant submitted that the level of care would be the same, as the evidence indicates that whether the subject person returns home or remains in the facility an ambulance with trained paramedics would be summoned.
In written submissions reference was made to the case of WL v NSW Trustee and Guardian [2011] NSWADTAP22 where the Administrative Decisions Tribunal (ADT) examined s 4 of the Guardianship Act 1987. At [71] the Appeal Panel observed: 71. Section 4 is more than an objects clause. Objects clauses articulate the intended purpose of the legislation and regard may be had to them to resolve uncertainty or ambiguity when interpreting and applying the remainder of the legislation: Minister for Urban Affairs and Planning v Rosemount Estates Pty Ltd (unreported, 90640127, 14 August 1996). The 'principles clause' in the Guardianship Act not only articulates the intended objects of the Act, it requires any person exercising functions under that Act, to observe those principles.
There was no contest on this point in the proceedings, rather a contest about how the beneficial provisions should be applied.
The applicant used a four-point submission to illustrate how the four principles from WL should be applied. (1) That the decision maker is bound to observe the s 4 principles. (2) Those principles are not expressed in absolute terms and references to 'as little' and 'as far' - as possible - make clear that observation of a principle is not absolute where a discretion exists. (3) Following WL the relevant decision maker is bound to observe s 4 principles, but when observing those principles the decision maker must demonstrate expressly or in writing that those principles have been observed. (4) Reference was also made to the case of P v NSW Trustee and Guardian [2015] NSWSC 579. In that context the Supreme Court restated that the Act was beneficial legislation and as such should be construed beneficially having regard to its protective character.
Reference was made to the summaries of the medical reports relied upon by the applicant. Dr Smith the Psychologist report of 25 September 2017 was referred to where it stated that: I am of the professional opinion that (the subject person) should be supported in her decision to have all her children visit her and stay overnight in her home which is in line with the therapeutic goals identified in our sessions.
Personal references were also referred to by the applicant which focused on issues relating to the applicant's devotion to her mother and at times difficulties with the competing views of the second and third respondents.
In closing the applicant submitted that the totality of the evidence is that the correct and preferable decision is for the subject person to return and remain in her home.

Respondent's submissions

In oral submissions the respondent referred to the video material and submitted that it was gathered only for the purpose of influencing the Tribunal. The compilation of this material did not have regard to the real well being of the subject person.
In addition the Public Guardian did not make the decision to place the subject person in permanent care until it was absolutely necessary to do so and monitored the deterioration of the applicant's health over an 18 month period. The respondent noted that at some point the subject person will need to pay an accommodation bond and the home will need to be sold in order to discharge that obligation.
Reference was made to the clinical care notes summonsed from the residential care facility where the subject person now resides. It was submitted that those notes show the high level of care currently available to the subject person.
The respondent submitted after closing of the evidence that the evidence of Dr Shaheen should have limited weight. Counsel submitted that it was absurd to suggest that the subject person at present could be classed as being 'independent'. A submission was made about this report being contrived by the applicant and as a result it was not independent, and also that it did not conform with expert evidence requirements.
If the care by the applicant is equivalent to the current level of care available at the residential care facility, then the respondent asked what it is about the applicant's level of care that resulted in chest infections and falls.
In written submissions the respondent (like the applicant) also made reference to the case of WL. Reference was made to the case of DCX v Public Guardian [2017] NSWCATAD 377 which at [54] develops further the point arising from s4 in WL. 53. Firstly, in the WL Case the Tribunal noted that when exercising any function under the Guardianship Act a decision maker is bound to observe any relevant principle in section 4. 54. Secondly, in the same case at [76] the Tribunal observed that the section 4 principles are not expressed in absolute terms and that phrases such as "as little as possible" and "as far as possible" make it clear that observing a particular principle does not mean that, where discretion exists, the decision-maker must make a particular decision. The only gloss I would give to those observations is that although internally the section 4 principles are not expressed in absolute terms, it is clear that the principle in paragraph (a) is in a special category: the decision-make it is required to give consideration to the welfare and interests of subject person and that consideration must be the decision maker's paramount consideration. 55. Thirdly, in the WL Case at [75], the Tribunal confirmed that a relevant decision-maker is bound to observe any relevant principle in section 4 and at the decision-maker may demonstrate that he or she has observed those principles either by referring to them expressly or by writing reasons for decision which demonstrate that all relevant principles have been observed. I would add the gloss in relation to s4 (a) that the wording of that particular paragraph compels the decision maker to give regard to the welfare and interests of the subject person and demonstrate their compliance with that requirement by referring to paragraph (a) expressly or by providing reasons for decision which demonstrate clearly that that paramount principle has been observed. To put it another way, paragraph (a) is always "relevant".
Like the applicant, reference was also made to the case of P. The respondent submitted on the s 4 issues that (a) the subject person is afforded greater welfare protection and is safer in the facility than remaining in her home. The evidence shows that her health had improved since November 2017. In respect of s 4(b) the subject person requires 24 hour care but does not need to attend respite and carers do not need to attend with her. In respect of the s 4 (c) considerations because of her care needs the subject person can no longer live a normal life in the community but has made friends and is social in her residential care placement. Her family is free to visit. In respect of the s 4 (d) considerations concerning the subject person's views, they did not take part in these proceedings and this is a matter dealt with at some length earlier in these reasons. The respondent submitted that the subject person had stated on a number of occasions that she was more than happy living there. This issue was contested by the applicant and a central focus of some of the video.
The s 4 (e) family and cultural preservation consideration was addressed at some length at hearing and in the absence of available evidence the Tribunal has not focused significantly on the various allegations that the applicant actively prevented the second and third respondent from accessing and maintaining a relationship with their mother. However the respondent submitted that the neutral environment gave greater facility to this provision even if there was evidence of the applicant working around it.
In respect of s 4 (f) and (g) considerations the respondent submitted that the subject person can no longer be self-reliant and 24 hour care is conceded by the parties, however the neutral and professional care placement does protect the subject person from exploitation and abuse. I assume that this submission is made because of the claimed professionalism of the employees and because it is an open and transparent facility.

Consideration

There was a large amount of medical evidence considered over the two days of hearing. Criticisms were made of much of that evidence by the respondent. Other than Dr Liu I note that both Dr Fitzmaurice and Dr Shaheen were subject to cross examination. In addition I note that they both agreed to be available to give evidence in the proceedings on behalf of the applicant.
In my view a number of the medical witnesses did not provide truly independent evidence due to the fact that some of them had long term professional therapeutic relationships with the subject person and her then primary carer (the applicant / DJA). This observation applies to the evidence of Dr Fitzmaurice and to a lesser extent Dr Shaheen. Some of the language and opinions could in my view be viewed as not entirely objective because of this therapeutic history. In respect of Dr Shaheen it appears that her report was addressing the matters that the applicant specifically raised (through her solicitors). It is clear from both their written and oral evidence that they had been provided at times with unverified information about the second and third respondents and this has had some bearing on the applicant's case. The totality of much of the medical evidence submitted on behalf of the applicant is that it is not entirely objective, and based on those written and oral comments of Dr Fitzmaurice and Dr Shaheen I so find.
Putting the subjective aspects of that evidence to one side, I observe that when various matters were put to them about the level of care available to the applicant in the residential care facility, they all agreed that the care provided was quality care and appropriate to the subject person's needs.
The main thrust of the respondent's position (and evidence of the first respondent's witness) was that the subject person's home is unsuitable for her to live in without substantial modification. The evidentiary dispute about these issues also became a contest between the parties. The applicant relied on the brief (1 page) report for Occupational Therapist M. Ho which concluded on 21 November 2017 that: In my opinion (the subject person) is safe to continue living in her own home, supported by the assistance from her daughter and existing care services in place.
On the other hand the much more detailed home assessment by Southern OT (11 pages) reaches a very different conclusion finding that the home is not safe without significant exterior and interior modifications. The applicant was unable to rebut the findings of that assessment during the hearing, and continued to rely on the M. Ho assessment and other material in support of her position concerning returning home. I note the multiple letters and sworn statements in support of the applicant's position, and note that none of those persons were required at hearing. As this evidence has not been tested and the full context of the circumstances cannot be evaluated, I give those documents limited weight.
I also note that the Public Guardian's preliminary objection to any return home is founded on the current risk to the welfare of the subject person due to a lack of the detailed and independently assessed modifications being made.
A number of critical submissions were made by both parties about the family members motivations behind their relative positions and alleged bad faith and conflicts of interest in the applicant's and to some extent the other parties' actions. Having regard to the guiding principles and the ultimate consideration of the matter before me, I have had no significant regard to those matters, other than to the extent they might inform the basis for certain third party evidence (such as medical and O.T. reports).
Both parties lodged a large amount of written material for the hearing. Included in that material was a copy of the lengthy decision of the Guardianship Division of NCAT dated 12 April 2016 concerning the subject person. That decision was referred to during the hearing and I have had regard to the relevant observations of the Tribunal, and in particular the recommendations about how the family might resolve any disputes about their mother's situation.
The decision of this Tribunal in the matter of DGE v Public Guardian [2018] NSWCATAD 76 deals with a similar factual scenario to the current matter. That matter concerned whether the subject person should remain in an aged care facility or return to a more independent setting of an independent unit / residence in a retirement village.
However unlike the current matter, in DGE the subject person was in a position to express her views and these views were a significant consideration by the Tribunal. At [119] the Tribunal observed the following concerning s-4 (b) principles on the evidence: 119. At the retirement village the applicants assert that the mother will have much greater freedom of action and decision than is provided at the aged care facility. I do not agree. At the retirement village the mother will have to live with the constant presence of a carer in her own living space, a prospect, which I accept she strongly opposes. I think she would find this much more intrusive on her freedom of action and decision, than the wider and less invasive supervision at the aged care facility. 120. DGT made much in her submissions of what is a normal life in the community and of the requirement that the Tribunal's decision encourage the mother, as far as possible, to live a normal life in the community. The words "as far as possible" in s 4(c) represent an acknowledgment that individuals differ in many ways, for example in age, health, stage of life and physical or intellectual capacity. Not everyone is able to participate in the community in the same way. How people live a normal life in the community differs as a result. Because of her age and illness, the mother is not like the majority of individuals in the community who are blessed with good memories, are fully oriented and well, able to walk unaided, and do not get easily exhausted. Her capacity to partake in a normal life in the community, like a considerable percentage of people her age and younger, is necessarily constrained by her illness and physical capacity. Because she is no longer able to make decisions herself and is suggestible, a guardian must make decisions for her which acknowledge the limits required by her condition, but at the same time ensure that she continues, as far as possible, to live a normal life in the community. 121. In my opinion, both proposals for the mother's future accommodation involve significant and similar restrictions on her ability to leave her home environment. In the retirement village she may be able to access the community more often than her regular weekly outings at the aged care facility, but the price of that is the presence of a permanent carer, which is a price the mother has indicated she does not want to pay. That is an understandable view which I must consider.
I believe that the observations of the Tribunal in DGE as to the subject persons obvious limitations and the extent that the s4 principles can be fulfilled are clearly applicable to the current matter.
In my view whilst the evidence of the parties is at times similar and at other times in direct conflict, I do not assess the weight of the applicant's divergent evidence on the central issue of this decision as being strong at the time of the hearing. In particular the medical evidence of a lack of subsequent hospitalisations, no substantial verifiable evidence of falls, and the lack of modifications to the home all have significant weight. In addition the weight of the medical evidence concerning the high quality of current care is strong.
In assessing these matters I have had particular regard to the evidence and the reasoning and analysis of the Guardianship Division. In particular their decision to revoke the enduring guardianship order in favour of the applicant and make a guardianship order giving the applicant and the Public Guardian discrete roles. I have also had significant regard to the evidence of the parties as given before me at the hearing.
It appears that the applicant is a loving daughter who clearly desires the best for her mother. It is also clear from the material before me that she has always had her mother's interests in mind, and has attempted to ensure that decisions were both appropriate and sound as to her care and wishes. I gathered from her evidence that the applicant's desire to remain as the support carer for her mother is a strong factor somewhat enmeshed with those issues. I do not infer anything adverse arising from that observation but believe that it explains the basis of these proceedings which in my view are well intentioned.
The second and third respondent likewise present with positive feelings towards their mother. This is clearly demonstrated in the manner in which they spoke before the Tribunal and their willingness to engage with the Guardian following the earlier orders. I note that the Trustee and Guardian gave positive evidence in the Guardianship hearing about the second respondent's appropriate financial management of the subject person over some years.
The Tribunal has often observed that when determining how to best assist a family member who might have a disability or relevant condition in the areas of care and financial management, persons with good will often legitimately differ in views and attitudes as to how those needs should be met.
I note the observations of the Tribunal in CPE v NSW Trustee and Guardian [2017] NSWCATAD concerning the basis for the protective jurisdiction. Paragraph 27 of that decision sets out how the matter must be approached. When referencing the case of P v NSW Trustee and Guardian [2015] NSWSC 579 27. This protective jurisdiction is governed by the central informing idea that the jurisdiction exists for the care of those who are not able to take care of themselves. The exercise of this jurisdiction must be for the benefit, and in the best interests, of the person in need of protection as an individual, not for the benefit of the state or for the convenience of carers: P v NSW Trustee and Guardian [2015] NSWSC 579
I again observe that the subject person did not take any role in these proceedings. Whilst it was asserted that the applicant would benefit from her mother living with her, understandably this was not explored in any detail. The general need to allow all members of the family access to the protected person to provide the mutual benefits conferred by the principles under s-4 was canvassed. However in accordance with the principle from P's case, it is clear that the subject person must benefit from the decision, to the detriment (if necessary) of all others.
On the totality of the evidence I prefer the evidence which supports the subject person remaining in the current residential care facility. The evidence in support of this is predominantly the evidence of the respondents but also some of the evidence about the high level and quality of the current care - as referred to in the applicant's evidence. In my view it is clear that the home is currently unsuitable for the subject person to reside having regard to her current health condition. I prefer opinion in the Southern OT report to the opinion in the report of M Ho and so find.
I also find that on the evidence and material before me, the level of care provided in the current residential care placement is at this time superior to any alternate care arrangement proposal.
I have attempted to the extent possible to have regard to the subject person's views as set out in the parties' evidence and discussed above. The respondent's views being that the subject person is happy with the placement, contrasted with the applicant's views that she is very unhappy and distressed with the placement and wants to go home. I note that there was significant conflicting evidence on this point. However I have had particular regard to the matters as conveyed in the Guardianship Division hearing two years prior to this hearing in making the order concerning the accommodation decisions of the subject person. I have also considered the finding of the Guardianship Tribunal on review on 4 October 2017 concerning ongoing separate guardianship functions for the subject person. I have therefore also taken those matters into regard in reaching my decision.

Finding

I find that it is currently in the best interests of the subject person for her to remain at the residential care facility (as a permanent placement resident) as decided by the first respondent after consultation with all of the interested parties.

Conclusion

On the basis of a consideration of all of the material presented to the Tribunal, I am satisfied that the decision of the first respondent on 30 November 2017 for a permanent placement, and under internal review on 24 January 2018 regarding the permanent placement, is the correct and preferable decision.
The first respondent's decision will therefore be affirmed.

Orders 1. The decision of the first respondent is affirmed.

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: 13 July 2018

At a glance

Court

Decision date

Source

Judgment (21 paragraphs)

Parties

Cases Cited (4)