Re FAV [2020] SACAT 19 (13 March 2020)

1. The application for a stay of the decision under review is refused.
2. Both proceedings are adjourned to a date to be advised by registry.

Guardianship and administration - Application for stay order - Whether applicant has a reasonably arguable case - Case reasonably arguable - Arguable case not determinative of outcome of stay or final determination - Where the balance of convenience lies - Not satisfied balance of convenience lies in favour of ordering a stay - Risks of granting stay outweigh risks of not granting stay - Stay application refused

South Australian Civil and Administrative Tribunal Act 2013 S 7, 73

Guardianship and Administration Act 1993 s 5, 66, 67, 81

Re LMP [2020] SACAT 2

Ms D Seal, Crown Solicitor's Office, for the Public Advocate and Department for Health and Wellbeing

Mr R Lawton, Crown Solicitor's Office, for the Public Trustee

This is an edited version of the Tribunal's statement of reasons issued pursuant to s 81 of the Guardianship and Administration Act 1993. The protected person has been de-identified and allocated a randomly selected pseudonym for privacy reasons. Other details that may lead to the identification of the protected person may have also been anonymised or omitted. These changes do not affect the Tribunal's decision or its reasons for decision.

Application for a Stay of Decision Under Review

Made under the South Australian Civil and Administrative Tribunal Act 2013 ('SACAT Act')

1. FAV asks the Tribunal to suspend, or even revoke, the order by which he is not allowed to decide for himself where he will live. Currently, the Public Advocate is his guardian and has decided that he should live at an Aged Care facility. FAV says he can make his own decisions and if he were allowed to do so, he would return to his own home to be looked after by his daughter.
2. In legal terms, this ruling determines whether an order of the Tribunal made on 8 October 2019 should be stayed pending the hearing and determination of a full hearing of a challenge to that order.
3. The original decision was made following a hearing on 3 October 2019 which appointed the Public Advocate as the full guardian of FAV with a review recommended on or before 3 October 2020. The Tribunal also granted the guardian powers that require FAV to reside at such a place as the guardian from time to time thinks fit, and also made that order reviewable on or before 3 October 2020. Further, the Tribunal made a full administration order and appointed the Public Trustee as administrator of the estate of FAV. It was recommended that that order be reviewed on or before 3 October 2022.
4. There are two applications for review seeking to challenge the original decision and the subsequent decision by the Tribunal on 2 December 2019 which varied the orders to authorise FAV's detention at the nursing home if required. It was recommended that that order be reviewed on or before 1 June 2020.
5. The primary application for review is brought by FAV himself. He is represented by Ms Bamford of Mead Robson Steele. The respondents to that review are the Public Advocate and the Public Trustee. The second review is brought by FAV's daughter, MXY, in respect of the same decision and with the same respondents. She represents herself. There are numerous interested persons, that is, persons who have been granted the status of interested person for the purposes of the Guardianship and Administration Act 1993 ('G&A Act'), which entitles them to be informed of the date and location of any hearings and to be provided with outcomes of decisions made by the Tribunal subject to any confidentiality orders that may be made by the Tribunal.
6. On 2 January 2020 MXY filed her own application for review in respect of the same decision (proceedings 2020/SIR000001). It was unclear from that document, and remains unclear, whether or not the grounds upon which she seeks to challenge the orders align wholly with the grounds of the primary applicant, FAV. This is not entirely surprising as FAV's application for review was made before the statement of reasons was produced and proper grounds of review had not yet been formulated.

The evidence on which the original decision was based

1. FAV was hospitalised in April 2019 following a fracture caused by a fall, in July 2019 for elective knee surgery, and in August 2019 following a further fracture caused by a further fall. He left the hospital following the third admission in the company of his daughter MXY prior to discharge. MXY currently lives at FAV's house with her husband and their three young children.
2. FAV returned to the intensive care unit in September in respiratory distress. Shortly after this admission, the hospital's social workers sought and obtained urgent interim (21 day) orders for full guardianship i.e. in respect of accommodation decisions, health decisions and 'lifestyle' decisions. The application was made in circumstances in which FAV's four adult children did not agree about where their father should be discharged to. In short, MXY advocated for him to return to his home to be cared for by her and the three sons advocated for professional care in a nursing home.
3. The interim orders, made on 23 September 2019, were confirmed following a hearing that was conducted on 3 October 2019. The Tribunal made its decision on 8 October 2019[1] and those orders are referred to as "the original decision".

1. FAV sought an internal review of this decision, filed on 23 October 2019. An internal review application requires the Tribunal to determine whether the original decision is correct or preferable and the Tribunal must have regard to the original decision-maker's reasons and the evidence that was relied on and any other evidence the Tribunal decides to receive. At that time, the reasons for the orders had not been produced and so a request for reasons was made of the original decision-makers.
2. In the meantime, other events were occurring. The Public Advocate as guardian sought a more comprehensive assessment of FAV's capacity in the specific sense in which that term is used in the G&A Act. Dr Hecker, Consultant Physician, interviewed FAV twice in late October and produced a report dated 28 October 2019. The guardian also applied to the Tribunal and was granted orders under s 32 of the Act which authorised FAV to be detained where he was residing if necessary.

1. The Tribunal issued a statement of reasons for the original decision, dated 3 December 2019. In the statement of reasons the Tribunal identifies the oral evidence given by Dr Yong at the hearing and found that FAV has a mental incapacity within the mearing of the G&A Act. That definition is as follows:

mental incapacity means the inability of a person to look after his or her own health, safety or welfare or to manage his or her own affairs, as a result of -

(a) any damage to, or any illness, disorder, imperfect or delayed development, impairment or deterioration, of the brain or mind; or

(b) any physical illness or condition that renders the person unable to communicate his or her intentions or wishes in any manner whatsoever;

1. The medical evidence upon which the original decision was made included a report of Dr S Greenwood which relied on brain scans, a social worker's report and an occupational therapist's report, all produced in September 2019. Dr Greenwood's report indicated that FAV had a moderate, static condition of type 1 respiratory failure secondary to pulmonary embolism and "underlying cognitive impairment ? dementia secondary to hypoxia".
2. The applicants at that hearing were social workers employed by the Department for Health and Wellbeing. It was their case that decisions needed to be made regarding FAV's accommodation so that he might be discharged from hospital. The occupational therapist's report recommended that FAV have 24/7 care with two carers at all times to meet his care needs. An ACAT recommendation was for a level 2 package. It was the applicants' view that FAV required a substitute decision-maker to make decisions with respect to his accommodation and his medication and the level of care that he required.
3. In reliance on the medical evidence, the Tribunal reached the conclusion that FAV had a mental incapacity and that he was unable to make decisions protecting his own health or safety or to manage his affairs. The Tribunal formed the view that none of FAV's four children was suitable to be appointed as a guardian or administrator because the conflict between them was such that they were unable to make the decisions required for their father. At that point in time, the Public Advocate was appointed as interim limited guardian. The Tribunal concluded that there was a need for a full guardianship order and that the Public Advocate should be appointed. In relation to the application for an administration order, for largely the same reasons and on the same evidence, the Tribunal concluded that it was appropriate for FAV to have an independent administrator, namely the Public Trustee.

1. FAV, represented by a lawyer appointed to him under the scheme for free representation established under the G&A Act, applied to the Tribunal to stay the orders when the internal review came on for directions in November 2019. This was precipitated by the guardian's decision to authorise FAV's discharge from hospital to the Aged Care facility. By this time, the report of Dr Hecker was available and that supported the finding of incapacity. The application for a stay was refused and the transfer proceeded.
2. The matter came before me on 17 December 2019 for further directions. At that hearing Ms Bamford foreshadowed gaining further medical evidence to support the application for revocation of the orders. She sought a directions hearing in late March 2020 to allow those medical reports to be obtained. There was discussion at that point as to whether or not the applicant wished to withdraw or adjourn the internal review and seek an alternative course of action, namely an application for variation or revocation in the original jurisdiction, based on fresh evidence. No such application was made and the application for internal review progressed. The Tribunal adjourned the matter for further directions on 3 March 2020 in accordance with the applicant's request.
3. In January 2020, MXY brought her own separate challenge to the same decision. I listed the matter for directions on 4 February 2020 with a view to determining how the two proceedings might be heard. At this point, there were no clear grounds of review from either applicant.
4. On 3 February 2020, a report was provided to the Tribunal by FAV through his solicitor. The report was written by Anthony Walsh, Psychologist, at the request of MXY, and amongst other things, expressed the view that FAV has mental capacity, and does not currently suffer from a mental incapacity, and has capacity to make decisions in regard to his health, safety and welfare and does not require an administrator to manage his affairs. Based on this report, Ms Bamford requested to appear at the directions hearing on the internal review brought by MXY, in order to seek final orders in favour of FAV on his application for review.
5. At the hearing of MXY's application on 4 February 2020, representatives for the Public Advocate resisted the submission by Ms Bamford for, in effect, a summary determination of her internal review without further evidence or submissions. The Public Advocate indicated that it was not apparent upon what material Mr Walsh had prepared his report and that, as it was aware that FAV's intention if the guardianship order were lifted to leave the nursing home where he was currently living, and bedridden, such orders would be inappropriate.

1. The filing of an application for internal review does not affect the operation of the decision under review or prevent the taking of action to implement the decision: s 73(1), SACAT Act. However, s 73(2) of the SACAT Act provides that the Tribunal may make an order staying the operation of the decision until the proceedings are finally decided including an order made on conditions as may be specified in the order. I recently considered the manner in which a stay should be considered in the case of Re LMP.[2] I observed that whilst it is not beyond doubt, s 73, when construed with the provisions of the G&A Act, should be understood to permit the Tribunal to make, as an interlocutory decision following the filing of an application for internal review, an order the effect of which would be to suspend the guardian's appointment and reinstate the legal status quo immediately prior to the guardian's appointment. In this case, the effect of that would be that FAV would have no guardian and would be entitled to make decisions for himself, relying on whatever sources of assistance in terms of advice as he wished to.
2. In the case of Re LMP I said,
   1. Although s 73(2) uses the word 'stay', the power to be exercised must be understood by reference to its statutory context. The Tribunal has no inherent power to make a stay order. The application of principles derived from a court's inherent power are subordinate to the construction of the power as derived from the scheme created by the SACAT Act and the G&A Act read together.
   2. The exercise of this power is similar, but not identical, to the exercise by a court of the power to stay an order pending the determination of an appeal. An order made under s 73 is an order made in the course of internal review proceedings which temporarily affects the operation of the reviewable decision. In determining whether to grant a stay of orders pending an appeal in civil litigation, a court will usually consider whether the applicant has an arguable case on appeal. If an arguable case is established, the court will consider prejudice to the parties and where the balance of convenience lies.
   3. In internal review proceedings in the Tribunal, the proceedings within which the application is made are a particular type of review. The proceedings under s 70 of the SACAT Act are a hybrid of an appeal de novo and a merits review, and closer to the latter. The generous nature of the review renders the "arguable case" criterion less capable of strict application. The application of the arguable case principle risks viewing the review as a strict appeal. What is required to establish an arguable case is an account of how the applicants will demonstrate, either through analysis of the process in the original hearing, or the original decision, that there was a defect in that process or error in the reasoning and that the correct or preferable decision is the one they seek. Alternatively, they will demonstrate that they should be entitled to the exercise of the review Tribunal's discretion to receive fresh evidence which would have the effect that the correct or preferable decision is the one they seek.

1. I see no reason to depart from those observations in this matter.

1. FAV is currently bed-ridden. He did not attend a hearing of the proceedings until 10 March 2020. He previously participated by listening on the telephone from his accommodation. That was by and large successful except that during the longer hearing on Thursday he was not in attendance on the line when the hearing came to an end. He subsequently said that he could not sit that long and listen. At the hearing on 6 March he found it difficult not to interrupt Dr Hecker's evidence when he disagreed with it. On that second occasion Dr Hecker was giving evidence by telephone. He attended the hearing on 10 March 2020 and although it was not planned, he gave some evidence and that assisted the Tribunal in the making of its decision.
2. At the commencement of the hearing on 5 March 2020, three specialists attended and were invited to confer. Mr Walsh, Mr Rothwell and Dr Hecker adjourned to a private room and discussed the observations that they had made of FAV and the conclusions they had drawn. When they returned to the hearing room I allowed them to sit together and hear one another's evidence, though they gave that evidence sequentially. Each was examined by the Public Advocate, Ms Bamford and MXY. There was insufficient time to complete Dr Hecker's evidence. I adjourned to the following day and the Tribunal reconvened for approximately a further hour to enable Dr Hecker's evidence to be completed.
3. All three specialists agreed that there was a degree of impairment experienced by FAV. They all agreed that he can express his wishes and that his wish is to go home. They did not agree as to whether he currently has capacity to manage his own affairs and make decisions for his own safety. Dr Hecker had formed the view in October 2019 that FAV lacked capacity. She gave detailed evidence that at that time when she assessed him he was not affected by drugs, pain, anxiety or hostility (as was suggested by Ms Bamford and MXY) to the extent that his capacity could be markedly different from her assessment of it on that occasion. She considered him to be significantly impaired at that time.
4. Mr Walsh has assessed FAV most recently. He is a clinical neuro-psychologist. He has had the benefit of reading Dr Hecker's report and considers that FAV is much improved and now has capacity to make decisions. He readily concedes that the capacity that FAV has may not be the same as that which he once enjoyed, but considers that he is capable of making decisions about his own future.

Applying the legal test to the evidence - an arguable case?

1. The question for the Tribunal is whether the material advanced by the applicants establishes that a stay should be granted pending the determination of the internal reviews. It can be assumed that the full hearing of the internal reviews may not occur within the next few weeks if any of the suggested assessments proposed by the specialists are undertaken. If the stay is granted, it would have the effect of lifting each of the orders. It would seem likely that FAV, faced with an opportunity to make decisions on his own behalf, would leave the facility and return to his home. Further, as is the case in relation to the applicants' ability to make an application for revocation of the orders in the original jurisdiction, it would be open to the parties to apply to the Tribunal to lift the stay if it was considered that evidence had arisen that would justify that.
2. The first question that the applicants need to establish in order to be granted a stay is that they have an arguable case on the review in these proceedings. That means that the applicants need to establish that it is reasonably arguable that the original decision was not or is not now the correct or preferable decision. It is my assessment that MXY's focus was that the original decision was not correct or preferable. She directed her cross-examination of Dr Hecker at Dr Hecker's original report of 28 October 2019 and appeared to seek to argue that Dr Hecker's original opinion was formed on the basis of erroneous information gained from the staff of the hospital in which he was being treated at that time. I did not find that approach to be compelling. Dr Hecker's view was not undermined by the questioning she received. It was bolstered, in that Dr Hecker was able to confirm that she did not think that the variables that MXY suggested might have caused the assessment results and did not account for the impairment she observed.
3. Further, MXY submitted that the Tribunal had failed, in the original decision, to give her father the benefit of a presumption of capacity. However, that legal principle is not a component of the test for the appointment of a guardian or administrator under the legislation. I am satisfied that MXY does not have an arguable case on this issue. The task of those assessing FAV was to consider whether he has a "mental incapacity" as defined in the G&A Act. They did so by administering various tests and then drawing conclusions. That was the appropriate approach, though there may be (and was) room for differences of view as to which tests yield the most useful information and how the results should be interpreted.

1. It is not sufficient for the applicants to establish that they have a reasonably arguable case for a stay to be ordered. The second limb of the test is that it must be appropriate to order the stay in all of the circumstances. This is sometimes described as deciding "where the balance of convenience lies". That phrase is not particularly appropriate in these circumstances as it is not a matter of the convenience of the order, but rather what are the consequences for the parties and all of the implications of the making of the proposed order or, on the other hand, of the decision not to make the order.
2. The implications for FAV of this decision are significant. It has been submitted, and I accept, that he is extremely unhappy at being required to reside in the nursing home. If the order was lifted, he would make the decision to return to his home. He anticipates being able to progress his physical health to the point where he may be able to walk unassisted. He would be relieved of the financial burden of the facility in which he lives and the costs associated with it. He would be with his daughter and her husband and their children. He would be in the home that he was familiar with. These are the same benefits as would accrue if the internal review was successful in due course.
3. On the other hand, it has been submitted by the guardian that if he were to return home where he would not be receiving the professional care of a nursing home with the equipment and specialised services associated with it, he would be at risk of further injury. Dr Hecker, in particular observed that it can be difficult to care for a person who is unable to get out of a chair or bed by himself but may wish to do so. One can imagine how such a circumstance might arise while MXY attempts to fulfil the needs of her young family and care for FAV in the two storey house at the same time.
4. If the stay order is made and FAV moves home, it may be that in due course, perhaps within several months, he is required to return to a nursing home if the ultimate decision is unfavourable to him. On the one hand that could seem disruptive but on the other it may provide a circuit breaker for the frustration that he currently feels. If the order for a stay is not made, FAV is required to remain where he is currently unhappy. Some closely associated with FAV have been at pains to establish to the Tribunal how unhappy he is, by indicating that he refuses food from time to time.

1. The application for a stay of the decision under review is refused.
2. Both proceedings are adjourned to a date to be advised by registry.

1. [1] There were two slip rule amendments made to this order; one on 11 October 2019 and one on 6 December 2019. As these do not affect the application for review, they are not referred to further in this decision.

[2] [2020] SACAT 2.