DXG v Public Guardian

Relevant principles

1. The general rule is that an application for administrative review of a decision does not prevent the decision from taking effect. The Tribunal may make an order "staying or otherwise affecting the operation of the decision under review".
2. The power to do so is set out in s 60 of the ADR Act: 60 Operation and implementation of decisions pending applications for administrative review (1) Subject to this section, an application to the Tribunal for an administrative review under this Act of an administratively reviewable decision does not affect the operation of the decision under review or prevent the taking of action to implement that decision. (2) On the application of any party to proceedings for an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal may make such orders staying or otherwise affecting the operation of the decision under review as it considers appropriate to secure the effectiveness of the determination of the application. (3) The Tribunal may make an order under this section only if it considers that it is desirable to do so after taking into account: (a) the interests of any persons who may be affected by the determination of the application, and (b) any submission made by or on behalf of the administrator who made the decision to which the application relates, and (c) the public interest. (4) While an order is in force under this section (including an order that has previously been varied on one or more occasions under this subsection), the Tribunal may, on application by a party to the proceedings, vary or revoke the order by another order.
3. In QLD Protection Security Pty Ltd v Commissioner of Police, NSW Police Force [2018] NSWCATAP 113 the Appeal Panel discussed the principles concerning stays and other orders under s 60 in the following terms: 31. The Tribunal recently considered the power under s 60 of the ADR Act in Loveday v Commissioner for Fair Trading [2018] NSWCATAD 80 (Loveday). In that decision it was held at [8]: "… Section 60(2) and (3) give the Tribunal a single discretionary power to make a stay order or to refuse to make such an order taking into account all relevant considerations. Secondly, the words "to secure the effectiveness of the hearing" include a situation where the applicant will suffer irreparable loss in the sense that no recompense for it can be obtained if the application is ultimately successful: Re Pelling and Secretary, Department of Aviation [1984] AATA 179; (1984) 5 ALD 638 at 639. It is not confined to the situation where a hearing would be pointless because the applicant will go out of business if a stay is refused. …" 32. The relevant considerations in deciding whether to make an order under s 60(2) include: (1) whether the order is appropriate to secure the effectiveness of the determination of the application for review: ADR Act, s 60(2); (2) whether the order is desirable taking into account: (a) the interests of any persons who may be affected by the determination of the application for review: ADR Act, s 60(3)(a), Loveday at [10], Re Scott and Australian Securities and Investments Commission [2009] AATA 798 (Re Scott) at [4]; (b)any submission made by or on behalf of the administrator who made the decision to which the application relates: ADR Act, s 60(3)(b), Loveday at [10], Re Scott at [4]; (c)the public interest: ADR Act, s 60(3)(c), Loveday at [10], Re Scott at [4]; (3)the applicant's prospects of success on the application for review: AVS Group of Companies Pty Ltd v Commissioner of Police [2010] NSWCA 81 (AVS Group) at [129], Loveday at [10] and [11], Re Scott at [4]. 33. The circumstances that are relevant in any particular case to the considerations identified above may well overlap or be interrelated.

Applicant's evidence and submissions

1. The evidence of the applicant is that the decision of 6 December 2019 prevents him from vising his grandfather, now aged 102. He works full time hours and does not finish work until after 6pm. He and his grandfather have a longstanding family tradition of spending time together in the early evening between the hours of 6pm-9pm, time when he reads to his grandfather in his native Russian, and other activities to provide general companionship and support. He has employed Russian speaking carers to provide companionship and support, who have reported to him that DZO often calls out words to the effect of "where is [DXG]", and "when is [DXG] coming?". He and his grandfather have a family tradition of attending Friday night synagogue and religions festivals and the decision of 6 December 2019 prevents that.
2. The applicant states that he has offered to engage in a formal mediation with the Public Guardian on several occasions, which has been refused. He has telephoned, and sent letters to the Public Guardian to try to discuss the decision, which have not been responded to. He has requested evidence from the Public Guardian for the allegations made in the Reasons for Decision of 20 December 2019 but no evidence has been forthcoming. He has offered to engage in a mediation with the CEO of the Nursing Home, which has been refused. He has contacted the CJC Mediation Program who are in the process of contacting the Nursing Home to propose mediation.
3. The distress caused to DZO by the decision preventing DXG from spending time with him takes the form of DZO experiencing increased respiratory rate, heavy breathing, squeezing his eyes shut, clenching his fist, and calling out for him loudly in a distressed tone of voice.
4. The applicant stated that he has been told by staff at the Nursing Home that they have no problem with him staying later. He and his grandfather are very close, he is doing his best to support him and is only wanting to promote DZO's interests. It is distressing for him to be separated from his last family member.
5. The applicant submits that he seeks the stay to remove distress for his grandfather, secure his interests, support his civil liberties and religious freedoms, promote his right to exercise choice, and to protect his wellbeing. To remove the restriction on visiting hours would not undermine the other parts of the access decision. There is a public interest confirmed by the Aged Care Quality and Safety Commission and the Royal Commission into Aged Care Quality and Safety in the public not being restricted in attending their family in nursing homes to observe. There is a public interest in ensuring procedural fairness when making decisions of the kind that restrict DZO's access to his family, carer and support person; and in allowing family members to be together to celebrate religious and family events without restriction to freedom of association. The Nursing Home is a private corporate body and can restrict access to any visitors to its premises without needing an order from the Public Guardian.

Respondent's submissions

1. The Public Guardian opposes a stay. The access decision of 6 December 2019 is about the safety and care of DZO. There have been many incidents reported by the Nursing Home to the Public Guardian. There has been continued care by DXG against medical advice including turning off the PEG tube, deflating the mattress, interfering with occupational therapist recommendations, and using a nebuliser against charting and advice. The applicant has provided a video in which he gave oral care to DZO causing him to vomit, which resulted in a hospital admission. There are serious concerns as to DXG's interference in DZO's care, at times of reduced staffing on site. There are also concerns with DXG's behaviour on the property: he regularly arrives 10 minutes before the end time of 7pm. The local area police are aware, and there were court mentions for trespass in October/November 2018, and a further 8 mentions on 8 January 2020. There is a report that DXG pushed a security guard, and that he has threatened staff.
2. DXG has previously come to the Nursing Home at 1 or 2am. The staff report his visiting times are unpredictable. While the orders in September 2019 enabled a visit until 9pm on Friday, not once has DZO come out of his room with DXG to attend Shabbat services. The Nursing Home has employed a security guard. DXG has been getting medical supplies in breach of medical requirements, and going to other floors. The Nursing Home would consider complete denial of access; and there are concerns that it is at the point that the Nursing Home cannot sustain DZO's accommodation. DZO's care needs are being exceptionally well met at the Nursing Home. An interpreter is engaged when DZO has a consultation for example with the occupational therapist, however he is unable to engage. The Public Guardian does not object to DXG engaging additional Russian speaking carers, so long as they make themselves known to the Nursing Home staff.
3. The Public Guardian submitted that it had sought the views of the applicant and the Nursing Home on its review of the access decision: the applicant had sought unrestricted hours, and the Nursing Home sought a reduction.
4. The Public Guardian accepts that there is no doubt that DZO does not want DXG to leave when he is there. That is common to many families with relatives in nursing home care. The Nursing Home reports that when DXG is not there, DZO is fine, and he sleeps. There are half hourly checks on DZO. As to the participation in religious events, DZO is not attending with DXG. If the pattern was that he was attending, the Public Guardian would consider an extension of hours to facilitate that, however DZO is not well enough to attend.
5. The Public Guardian does not support mediation, having made the decision in the best interests of DZO. The attitude of the Nursing Home to mediation is a matter for it.
6. The Public Guardian notes that there is a reduction in nursing staff after 10pm. With the extension of visiting hours to 7pm management people have had to stay on site longer than otherwise required; if DXG is on the property they stay until he leaves. If there is no restriction on DXG's visiting hours DZO's accommodation would be under threat, given the concerns of Nursing Home management, and hospital staff, relating to DXG's behaviour concerning DZO's health and medical care.

Applicant's reply

1. The applicant submits that the information coming to the Public Guardian from the Nursing Home, which is a private business organisation, is one-sided information. He did put his argument for unrestricted hours to the Public Guardian on the review briefly, but could not respond fully in the absence of evidence of the allegations.
2. In further evidence in reply on affirmation, DXG denied the allegations concerning his behaviour as stated by the Public Guardian, including the allegation that he records telephone calls. He stated that he has swabbed DZO's mouth, on medical advice. He disputes that the Nursing Home arranges an interpreter, or that there are half hourly checks on his grandfather. He agrees that he has unpredictable hours, however that is because of the Public Guardian restrictions. He has been prevented from spending Chanukah, which includes lighting a candle in the evening, with his grandfather. He disputes that he and his grandfather have not attended Shabbat services since the August 2019 decision. He is complying with the restrictions imposed by the Nursing Home on 23 December 2019.

Discussion and findings

1. The determination of the administrative review application will require the Tribunal to decide whether the correct and preferable decision is to restrict the hours in which DXG is permitted to visit his grandfather: s 63 ADR Act. The other four elements of the decision under review are not contested.
2. The Public Guardian's Reasons for Decision address the principles in s 4 of the Guardianship Act, which are also applicable in the review: 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.
3. The issue is whether, as required by s 60(2) of the ADR Act, an order is needed to secure the effectiveness of the determination of the review, having regard to all relevant considerations as identified in s 60(3) of the ADR Act. As held in QLD Protection Security Pty Ltd v Commissioner of Police, NSW Police Force [2018] NSWCATAP 113, the words "to secure the effectiveness of the hearing" are not confined to a situation where a hearing would be pointless, for example because an applicant would go out of business if a stay is refused, and it includes a situation where the applicant will suffer irreparable loss if the application is ultimately successful.
4. In considering first the interests of any persons who may be affected by the determination of the application, DZO and DXG are clearly persons whose interests are affected. The Public Guardian notes in the Reasons for Decision that it has been informed that DZO recognises DXG and works well with him, and that the relationship continues to be important to him. The evidence of the applicant is, and the Public Guardian accepts, that DZO is distressed when DXG is required to leave.
5. The access decision refers only to DXG. While there are several references in DXG's emails to "family" being prevented from being with DZO, in oral evidence DXG clarified that there are no other family members, and he is the only person who visits DZO. The interests of other residents in the Nursing Home are also relevant, in the context of the concerns reported by the Nursing Home to the Public Guardian.
6. The access decision does not prevent all access by DZO to the support and companionship of his grandson. The applicant clarified in his oral evidence that he works full time in the city, and had 25 and 26 December off. He studies law part time at university; there are currently no classes, and classes will resume in January or February 2020. The Tribunal accepts that DXG's ability to visit during the specified hours is constrained by his work and study, however given the time of year, and his evidence as to current commitments, the Tribunal is satisfied that DXG currently has increased flexibility in maintain his visits during the specified hours.
7. The Reasons for Decision record that in reaching the decision the Public Guardian considered reports from various stakeholders including medical professionals, clinical staff, and NSW Police, and that the decision to reduce the hours of access from those ordered on an interlocutory basis in proceedings 2019/260778 was made to maintain DZO's health care and safety while ensuring that DXG has ample hours of access available to support DZO. The Reasons for Decision acknowledge the important relationship between DXG and his grandfather, however state that there are continued concerns about the behaviour exhibited towards Nursing Home and medical staff, security guards and other medical professionals that significantly impact on their ability to provide a high level of care to DZO. The Public Guardian records that it has been informed that the Nursing Home staff are unable to carry out their professional duties due to DXG's behaviour, interference and harassment; that there have been multiple reports to NSW Police; that DXG continues to provide care against medical advice which significantly impacts on DZO's safety; and that the Nursing Home has resourced a full-time security guard to stay outside the room to ensure that DXG is not accessing areas that are inappropriate such as the medical supply room and to ensure that other residents and family members are not impacted by his behaviour.
8. The Tribunal accepts that the limitations on DXG's access have been imposed by the Public Guardian in response to concerns held by staff at the Nursing Home in relation to the impact that that access is having on the care provided for and the welfare of DZO. DXG regards the reports from the Nursing Home as one-sided, and disputes the claims of aggression and that he interferes with care of DZO. He denies doing anything outside advice he receives from staff. He does, however, acknowledge that he carries out some aspects of personal care such as swabbing his grandfather's mouth. Whether the substance of the claims reported by the Nursing Home to the Public Guardian on which it acted in reaching the decision is ultimately made out will be a matter for the hearing of the review application. However, while noting that no firm conclusions either way can be drawn on an interlocutory basis, the Tribunal considers the fact that the Nursing Home has taken the step of engaging a security guard, and has implemented its own restrictions on DXG's hours of access and limitation on his movement in the Nursing Home, is an indication of the seriousness with which it takes the current circumstances.
9. The Tribunal acknowledges the importance of maintaining the close family relationship between DZO and his grandson, and DZO's cultural and linguistic environment, as recognised in s 4(e) of the Guardianship Act. The variation of hours in September 2019, agreed to by the Public Guardian, to permit DXG to be with his grandfather on Friday evenings until 9pm recognised the importance of participation in religious events for both DZO and DXG. However, on the available evidence, DZO is not currently attending those services.
10. The Tribunal accepts that the various elements of the public interest identified by DXG in his written submissions are relevant. DXG acknowledged that he had an opportunity for input on the review of the earlier access decision. The Tribunal notes that DXG also had an opportunity to challenge the earlier access decision in proceedings 2019/260778, which did not proceed to a final hearing because the applicant withdrew the application.
11. DXG's access to the Nursing Home, and his grandfather, is now restricted by the decision of the Nursing Home on 23 December 2019. The impact of those restrictions, or any further decisions made by the Nursing Home, and their relationship with the access decision of 6 December 2019, will be a matter to be considered by the Tribunal on the hearing of the substantive review. For the purposes of the stay, the restricted hours established on 23 December 2019 mean that any order made now under s 60(2) of the ADR Act to extend or remove the hours specified in the access decision would appear to serve no purpose. DXG submits that it would, as it would enable him to negotiate a variation of the 23 December 2019 decision: however, given his evidence as to his unsuccessful attempts to discuss the issues both with the Nursing Home and with the Public Guardian, the Tribunal does not consider that to be a realistic possibility.
12. The evidence before the Tribunal does not enable a view to be taken as to the likelihood of success of the application for review of the decision of 6 December 2019. At the conclusion of the hearing of the stay application directions were made to have the hearing conducted as expeditiously as possible, with the views of DZO, if he is able to express them, and submissions as to his best interests, to be before the Tribunal.

Conclusion

1. The Tribunal acknowledges that continuing the limitation on DXG's access until the hearing continues a situation which both DXG and DZO, an elderly and frail man, find distressing. The Tribunal acknowledges that if the application for review is successful, continuation of any distress caused by the restricted hours for a period until the review is determined would be a loss for both DXG and DZO which could not be remedied. However, the Tribunal is satisfied that that distress can be mitigated to some extent by an expeditious hearing of the review application, as reflected in the directions made on 30 December 2019.
2. The safety and welfare of DZO is the paramount consideration. That requires that he continue to receive appropriate medical and personal care at the Nursing Home. The Tribunal is satisfied that there is sufficient evidence for the purposes of this interlocutory decision that the issues concerning DXG's behaviour in compliance with hours of access, and with the other elements of the access decision, and the impacts that is having on the ability of the Nursing Home to discharge its responsibilities to DZO and its other residents and staff, are such as to put in jeopardy both DZO's health and safety and his continued residence in the Nursing Home.
3. The Tribunal is not satisfied, having regard to all the relevant considerations, that an order under s 60(2) of the ADR Act affecting the operation of the access decision made on 6 December 2019 is required or appropriate.
4. The decision of 6 December 2019 has not been the subject of an internal review as required by s55 of the ADR Act. The stay application was heard as a matter of urgency, and the Public Guardian does not oppose an order being made under s55(4) of the ADR Act, to enable that to occur.

Orders

1. The Tribunal orders: 1. The application for an order under s 60(2) of the Administrative Decisions Review Act 1997 to stay the operation of the access decision made by the Public Guardian on 6 December 2019 is refused. 2. Pursuant to s55(4) of the Administrative Decisions Review Act 1997 the application for administrative review made on 18 December 2019 may proceed notwithstanding that the applicant had not duly applied for an internal review.

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: 08 January 2020