ABJ v Public Guardian
[2011] NSWADT 172
•18 July 2011
Administrative Decisions Tribunal
New South Wales
Medium Neutral Citation: ABJ v Public Guardian [2011] NSWADT 172 Hearing dates: 16 May 2011, written submissions closed 6 June 2011 Decision date: 18 July 2011 Jurisdiction: General Division Before: C Huntsman, Judicial Member Decision: The decision is affirmed
Catchwords: Accommodation, best interests Legislation Cited: Guardianship Act 1987, sections 4, 78, 80A; Administrative Decisions Tribunal Act, so 63 Category: Principal judgment Parties: ABJ (Applicant)
Public Guardian (1st Respondent)
ACU (2nd Respondent)Representation: ABJ (Applicant in person)
R Storman (First Respondent
ACU (Second Respondent)
File Number(s): 113044 Publication restriction: S126 of the Administrative Decisions Tribunal Act 1997 applies
reasons for decision
Background
This was an application for review of a decision by the Public Guardian, which was an accommodation decision as to where an elderly gentleman, MMD, should live. The Applicant, ABJ, is the son of MMD. By order dated 12 January 2011 the Guardianship Tribunal appointed the Public Guardian as MMD's guardian , for a period of 12 months, to decide about his accommodation, health care, consent to medical and dental treatment and services. The Guardianship Tribunal found that MMD was elderly (he was 89 years at that time), frail and vulnerable, fully dependent for all activities of daily living, including prompting for eating and drinking, and that he had dementia and required extensive nursing care. The Guardianship Tribunal noted that MMD has four children, and his wife had died four years previously. After the death of his wife MMD had resided with his son, the Applicant, until MMD's admission to St George hospital on 31 October 2010. Hospital staff made an application to the Guardianship Tribunal for the appointment of a Guardian in November 2010. It is said that the application to the Guardianship Tribunal was made because of concerns that MMD required a higher level of care than the Applicant could provide, and that the hospital treating team saw the need for a guardian to be appointed to make decisions about accommodation and services for MMD. As appointed guardian, the Public Guardian made a decision about MMD's accommodation and MMD was subsequently discharged from St George hospital to that accommodation, and he remained at that accommodation at the time of the current proceedings. The Public Guardian's accommodation decision was that MMD should reside with his daughter, ACU. This accommodation decision is the subject of the current review proceedings, as detailed further below.
The Applicant sought review of the decision of the Public Guardian of 10 February 2011, being an accommodation decision that there be a trial of MMD residing at the home of his daughter, ACU. The application for review was filed on 21 February 2011. The Applicant also applied for a stay of the decision pending review. At proceedings at the Tribunal on 8 March 2011 the application for a stay was refused, and the Tribunal file notes that the Public Guardian was to make a new long-term accommodation decision, before the next Tribunal hearing date, in relation to where MMD would live.
At the date of the hearing of the current matter on 16 May 2011, the Public Guardian had made a further decision, on 1 April 2011, that MMD continue to reside at the home of his daughter, ACU. At the time of the hearing all parties agreed that the decision under review was the Public Guardian's decision of 1 April 2011.
At the commencement of the hearing on 16 May 2011 the Tribunal determined that ACU should be joined as a party to the proceedings: the Tribunal was satisfied that ACU had an interest in the proceedings as MMD is residing with her; the Tribunal also noted that ACU's application to be joined as a party was not opposed by the other parties, being the Applicant and the Public Guardian.
The Applicant's case
The Applicant's case is set out in a number of written submissions made by the Applicant and filed with the Tribunal. The Tribunal noted at the commencement of the hearing that these written submissions dealt with a number of issues, including the Applicant's wish that he be appointed as guardian for his father, MMD. The Tribunal explained the Tribunal's jurisdiction on the current application, including that the Tribunal did not have power in the current proceedings to make a decision to appoint a guardian; this was understood by the Applicant and he indicated that he wished to proceed with his application for review of the accommodation decision made by the Public Guardian on 1 April 2011.
In his oral evidence the Applicant detailed his reasons for maintaining that the decision of the Public Guardian was not in the best interests of MMD. He maintained that it was the wish of MMD to return home and reside with the Applicant. He relied on a statutory declaration which was signed by MMD before a justice of the peace on 11 April 2011. The Applicant agreed that the handwriting on the statutory declaration was the Applicant's handwriting, however the signature was MMD's. In relation to the signing of this document the Applicant told the Tribunal that he talked to his father, asking his father if he understood that by placing his signature, the Applicant would take him back home. He says that his father then moved his hand. The Applicant states he did not read out the statutory declaration to his father, the Applicant states that he said to his father "according to what I told you I would like you to sign this to take you back home". The Applicant states he did not press his father to sign. He further states that his father said, in front of ACU, that he wanted to stay with ACU temporarily, and when asked by the Applicant whether he would like to go back home, he stated "as early as possible".
The Applicant states that his father is living in his sister's home, refusing to take any meals, he is dependent on fluid which is not a permanent solution. He is concerned that if his father stays in his sister's house, because he is not interested to be in that situation, because he is interested to go back home with the Applicant, he will die. The Applicant noted that his father is now receiving palliative care and this was not appropriate in the Applicant's view. The Applicant referred to telephoning an ambulance, early in May, approximately 2 weeks before the hearing, to take his father to hospital. He states that the Tribunal should have a look at the situation which his father is in, there are young children, ACU is busy. The Applicant maintains that his father wishes to be at home with the Applicant, and that this was previously the situation before a hospital admission, and that MMD should be returned to the previous accommodation.
Case of ACU, party joined as S econd Respondent
ACU gave oral evidence to the Tribunal by telephone. She noted at the proceedings before the Guardianship Tribunal the Guardianship Tribunal had asked MMD several times whether he was happy at the house of ACU and he had said that he was. She also noted that when asked if he wanted to go to live with the Applicant, he said "yes, God willing, when I am well".
ACU asked the Applicant a number of questions about how often he came to her house to provide personal care for their father. ACU noted that she had ceased employment so as to be able to provide full-time care for her father. She has also arranged for the care of her young children by family members providing extra support. She states her house is open to all, and that if the Applicant wished to make the time available, the Applicant could spend several hours caring for their father at her house. She noted that the Applicant telephoned an ambulance on 7 May 2011. ACU told the Tribunal that after her father was transported to hospital, she went to the hospital and remained at the hospital from 9 am to 2 pm, yet the Applicant went home after placing their father in the hospital. ACU states she remained with their father until a doctor came. The doctor told her that the hospital could not do any more than she was doing at home and her father was discharged. ACU noted that she had undertaken considerable effort to put services in place for the care of MMD as her residence and that the Public Guardian had assessed the suitability of those services.
The case of the Public Guardian
Relevant documentation was provided to the Tribunal by the Public Guardian, under cover letters dated 3 March 2011 and 14 April 2011, pursuant to section 58 of the Administrative Decisions Tribunal Act 1997. A number of file note records and copies of correspondence, and statements of reasons for various decisions made by the Public Guardian, are included in the documents. The documents included a decision record for a decision made on 10 February 2011 for accommodation trial at the home of ACU; and a reasons for decision report for a decision made on 1 April 2011 by Ms Hunt as guardian for the Public Guardian that MMD remain living with ACU. The reasons for those decisions, detailed in both records of decision, include that medical staff at St George hospital were concerned that MMD not return home with the Applicant as medical staff were concerned he could not be adequately cared for in that environment; the Public Guardian gave weight to the views of three of MMD's children who supported ACU's care for their father at home , but overrode the wishes of the Applicant. The Public Guardian records as a significant reason: that ACU was aware that MMD is unable to feed himself, lacks interest in eating and drinking, is at risk of aspiration, and ACU was observed to be extremely patient in feeding him. The Public Guardian was concerned that MMD may not eat sufficiently well in a nursing home environment for these reasons, and his eating could be better supported by residing with ACU. There was also concern for the lack of availability of a nursing home with Arabic speaking staff/residents. The Public Guardian also gave weight to the preparation undertaken by ACU to provide care at home: which included arranging for support by the Aged Care Assessment Team (ACAT); purchase of a special bed and mattress; arrangements for an Arabic speaking general practitioner with prior knowledge of MMD to visit him at her home to provide medical care and review; and advice received from an occupational therapist with the ACAT team in March 2011 that MMD was looking well, alert and well cared for. The Public Guardian considered the general principles in section 4 of the Guardianship Act 1987 and found that the best interests of MMD were served by him remaining with ACU in her home.
Medical reports relating to MMD's admission to hospital in 2010 were also included in the documentation provided. A report by the Consultant, Dr Dedousis, details that MMD was admitted to hospital from home (where he then resided with the Applicant), via ambulance, on 31 October 2010, with severe dehydration, severe Hypernatremia, acute chronic renal failure, malnourishment and delirium. It was noted that this was on a background of severe dementia and benign prostatic hypertrophy, glaucoma, previous cholecystectomy and hypertension. The Doctor notes in his report that the hypernatraemia was one of the worst he had ever encountered. He notes also that MMD was deconditioned as well as malnourished and markedly dehydrated. It was noted by the doctor that MMD improved over the hospital admission with excellent nursing care, nutritional replacement and fluid replacement. The Dr states "it is my opinion that the ability of (MMD's) son to manage him at home is limited...... I do not believe he is able to continue to give appropriate medical, nursing and dietary care despite all the best of intentions..."
A report by an aged care speech pathologist of 19 November 2010 notes the need for MMD to receive food of certain consistency because of swallowing difficulties. A social work report of 22 November 2010 indicates that during an admission to hospital in November 2009, the Applicant received instruction in how to thicken fluids as advised by the dietician at the time. The reports of hospital staff are that, given the condition of MMD on admission in 2010,it appeared that these directions had not been complied with. A report by an occupational therapist of 22 November 2010 indicates that a trial of care was organised on 11 November 2010 - for the Applicant to come to the hospital and attend to the care needs of his father between the hours of 9 am and 5 pm. It was arranged that he would receive education, advice and assistance during the trial. It was said that the Applicant fed his father at an increased pace, not allowing time to swallow, and despite prompting from nursing staff continued to feed his father at a fast pace against recommendations. Nursing staff were required to take over feeding. Nursing staff reported that the Applicant was reluctant to assist with the care of his father, and he questioned his father's current functional level and was said to be not accepting advice given as to MMD's current level of function despite conversations with the occupational therapist and physiotherapist who advised that the care needs had increased. The Applicant reportedly stated that prior to the hospital admission MMD had not required so much assistance. It is reported by the hospital staff in the reports that the Applicant did not complete the trial of care, leaving the hospital after four hours. These records about the trial of care were put to the Applicant by the Tribunal during the hearing so as to give the Applicant an opportunity to respond. The Applicant stated that he stayed until 12 noon, he did not need to stay longer, because he is a doctor. The Tribunal queried whether he had fed his father too quickly, as alleged, and he stated that maybe it appeared quickly in front of them. He said, however, given his professional background as a doctor, that he knows what he's doing with feeding. He says he previously practiced as a doctor in his own country, which he departed in 2002. ACU put to the Applicant during the hearing, that he had not used the food thickener which he had been given by the hospital treating team in 2009, as the container at his home was still full, so had not been used. The report by the senior aged care dietician also details advice given to thicken fluids in 2009, and reports that the Applicant was reluctant despite having food thickener at home.
The Public Guardian's documents also contain a copy of the Guardianship Tribunal's order, and reasons for the decision for the order of 12 January 2011.
The guardian, Ms Hunt, from the office of the Public Guardian gave oral evidence to the Tribunal. Ms Hunt stated that when she first saw MMD in the hospital he was not very well, with dementia and significant physical illness. She visited him at the home of ACU just before making the second accommodation decision of1 April 2011 and was surprised by the significant improvement in his presentation: she stated he looked much better, he smiled, held her hand, and spoke to her in Arabic, and had a good colour - she was pleasantly surprised at his improvement. She said when he was in hospital he was so unwell the Consultant would not allow him to go home. Professional staff at the hospital were very cautious about a home placement for him. Ms Hunt described how ACU did a very satisfactory trial of care, of her father, at the hospital. The Public Guardian then agreed to a trial of ACU caring for MMD at her home. Ms Hunt noted that prior to the trial at home, ACU had complied with all recommendations in relation to equipment and services which would be required for home based care, and all was set up before the trial at home. Ms Hunt stated that MMD had been twice admitted to hospital at ACU's request and ACU had responded appropriately on those occasions. During the second of those admissions there were long discussions with the doctors at the hospital. They noted MMD was doing very well in ACU's care at home, they had no concerns in relation to that care. The doctors noted that MMD had irreversible kidney failure and palliative care was recommended. On review of the medical information the Public Guardian is satisfied that this recommendation is appropriate.
Ms Hunt expressed the view, based on her knowledge as the health care guardian, that the admission of 7 May 2011, instigated by the Applicant, was not necessary or appropriate and not in his best interest. The palliative care team is engaged and reviewing him at the home of ACU, and have advised that he reside at her home as long as possible. There was clear professional opinion by the hospital team, being the consultant, the occupational therapist and social worker, because of the poor condition of MMD on admission, that he should not go home with the Applicant. There was also a belief that there was no alternative to a nursing home because of the high level care needs. However, the Public Guardian had noted that there was no Arabic speaking nursing home available and that ACU was willing to obey all guidelines by health professionals and care for her father at home. Ms Hunt stated that ACU "did it by the book" - in relation to the level of care which ACU provided during the initial one-month trial (pursuant to the Public Guardian's decision of February 2011) - and an appropriate level of care was provided. Ms Hunt stated that MMD is comfortable with the care, and with family around him. Registered nurses attend ACU's home to assist with personal care and hygiene, including to shower him. In Ms Hunt's view it is appropriate, given his elderly age and the end stage of life which he is in, that MMD be cared for at home, amongst his own language group, if it is safe to do so, and during the one-month trial it was clearly was demonstrated that it was safe and in MMD's best interests, in Ms Hunt's view. Given the success of the one-month trial of ACU providing care in her own home, and given the Public Guardian's view as to the benefits of such care amongst family and Arabic speakers, then the public Guardian made the decision that MMD should continue to reside with ACU, and be provided with care at her home.
Applicant's further views, and application for adjournment to obtain further evidence.
The Applicant maintained that the care was not appropriate, palliative care was not appropriate, and he should care for his father at his home. He maintained that as a doctor, he was well qualified to provide care and did not agree that he had been unable to provide care prior to the hospital admission. Indeed, he told the Tribunal that a doctor who was aware of the Applicant's history of providing care for his father, would provide a medical report to support the Applicant's care of his father. The Applicant told the Tribunal that this doctor had said to him that MMD should be with him. The Tribunal agreed to a two-week adjournment to allow the Applicant to obtain a report from this doctor. Directions were made that the report should be obtained and filed, and time was given for the other parties to respond to this report. It was indicated that after filing of the written material the Tribunal would make a decision.
The Applicant did file a report from a Dr Selim, dated 18 May 2011. The report is in the nature of a referral letter by Dr Selim to a Dr Younan, and merely details a brief medical history and current medications. The report/ referral requests an opinion in the management of a 90-year-old man with depression and refusal to eat. A letter from the Applicant attached to the report, indicates that the Applicant is requesting an appointment with a psychiatrist as the psychiatrist does not make a home visit. The Tribunal notes that the purpose of the two-week adjournment was to allow the Applicant to obtain a report from a doctor/specialist who the Applicant stated had seen MMD in 2009, and who the Applicant states supports his father being located with him at the Applicant's home. The purpose of the adjournment was not to provide an opportunity for the obtaining of a psychiatric review of MMD by the Applicant. The medical report provided does not support the Applicant's oral evidence during the hearing that a doctor/specialist in the hospital told him that his father should be with him. An adjournment was given to the Applicant to allow him to obtain a report confirming his evidence at the hearing that he had been told by a doctor/specialist who had seen him and MMD in 2009, that MMD should be with the Applicant.
Discussion of law and evidence and the Tribunal's findings
The Guardianship Act 1987 provides for review by the Tribunal of decisions made by the Public Guardian:
80A Review by ADT of guardianship decisions of Public Guardian
(1) An application may be made to the ADT for a review 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 ADT, adversely affected by the decision.
The Tribunal has accepted that the Applicant, MMD's son who previously had the care of MMD, has interests which are adversely affected by the decision that MMD reside with ACU. The Tribunal is satisfied that the Tribunal has jurisdiction to review the decision.
In exercising powers/functions under the Guardianship Act 1987 as appointed guardian the Public Guardian must observe the general principles in s4 of the Guardianship Act 1987:
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.
By a decision of the Guardianship Tribunal under the Guardianship Act 1987 the Public Guardian was appointed to make decisions about MMD's accommodation, health care and consent to medical and dental treatment and services. The Public Guardian made a decision, subject of the current review proceedings, as to MMD's accommodation. Under s78 of the Guardianship Act the Public Guardian may delegate functions, in this case Ms Hunt as a senior guardian within the office of the Public Guardian was delegated decision making functions.
Section 63 of the Administrative Decision Tribunal Act 1997 ("the ADT Act") provides that in determining an application for review the Tribunal is to make the correct and preferable decision having regard to the material before it, and any applicable law. It is well established that in considering an application for review the Tribunal is not restricted to a consideration of the material that was before the Respondent, but may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409.
A frequently used phrase is that, when conducting a review, the Tribunal 'stands in the shoes of the decision maker' and exercises the same functions and powers. The Tribunal is therefore constrained in its powers to those held by the decision maker.
Section 63(3) of the ADT Act provides that in determining an application for the review of a reviewable decision, the Tribunal may decide:
(a) to affirm the reviewable decision, or
(b) to vary the reviewable decision, or
(c) to set aside the reviewable decision and make a decision in substitution for the reviewable decision it set aside, or
(d) to set aside the reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.
The Tribunal finds that the evidence provided in the reports of professional and medical staff at St George hospital, relating to the admission of 31 October 2010, copies of which were provided by the Public Guardian, indicates that MMD was very unwell on admission to hospital. Prior to his admission he had been cared for by the Applicant at home. Professional and medical staff at St George hospital formed the view that the Applicant was not able to meet the care needs of MMD by caring for MMD at his home. The Tribunal has no basis for making a finding which contradicts the views of the professional and medical staff, on the evidence presented in this matter. The evidence includes reports of observations by staff at St George hospital of the trial of care at the hospital, including feeding of MMD by the Applicant. It is reported that he did not complete the trial of care time period, and the Applicant did not dispute this during the hearing. The Applicant's reason was that as a doctor he did not need to remain for the whole period. When the allegation that he fed MMD too quickly was put to the Applicant he did not dispute this, but told the Tribunal that it may have appeared that he fed his father too quickly. He did not dispute the evidence of ACU that he did not use the food thickener after his father's discharge from hospital in 2009; however he maintained that his care was appropriate because he was a doctor and therefore skilled. However, it is clear on the evidence that when MMD was admitted to hospital his presentation was such that the hospital staff formed a view that the Applicant was unable to adequately care for him at home. The Public Guardian reports that professional medical staff supported a nursing home placement. However the Public Guardian records the guardian's concern, given MMD's problems with eating and drinking, that he would not receive adequate nutrition in a nursing home. The Public Guardian observed the patience with which ACU fed her father, her care approach during a trial at the hospital was approved, she consulted with the ACAT in providing care during a trial period of care at home. The Public Guardian gave weight to the views of family members, being three out of four of MMD's children, that he reside with ACU, noting also that this was against the wishes of the Applicant. The Public Guardian considered that being cared for by family members at the home of ACU, amongst Arabic speakers, who had demonstrated appropriate care decisions and the ability to be patient with feeding MMD, was in his best interests. Further, the Public Guardian gave weight to the opinion of an occupational therapist in March 2011 as to how well MMD presented. Ms Hunt, guardian for the Public Guardian, also gave evidence of her own observations in this regard, when she visited MMD at the home of ACU just prior to making the decision of 1 April 2011.
The Tribunal considers that the decision that MMD be accommodated at the home of ACU is the correct and preferable decision on the evidence before the Tribunal. The general principles in section 4 of the Guardianship Act provide that MMD's welfare and interests are the paramount consideration. Further, the general principles provide that MMD should be encouraged to live as normal a life as possible in the community, and be protected from neglect, abuse and exploitation. The general principles observe the importance of preserving family relationships and cultural and linguistic environments. Placement with a family member, allowing access to the Arabic language, is consistent with those general principles. The views of MMD should also be considered - the Tribunal notes that the Guardianship Tribunal found at the time of those proceedings that MMD expressed a wish to go home, but given the medical evidence about his dementia and impairment of executive function the Guardianship Tribunal was not satisfied as to MMD's understanding of 'going home'. ACU and the Applicant both gave evidence about MMD's views in the current proceedings (refer paragraphs 6 , 8 and 9 above). The Tribunal does not accept that the statutory declaration signed by MMD and relied upon by the Applicant can be accepted as evidence of his views - the evidence of the Applicant is that the words used in the statutory declaration were not read to the Applicant before he signed. The evidence about MMD's views is not clear, and whilst the Tribunal should consider evidence as to those views, the Tribunal is also to consider as the paramount consideration the welfare and interests of MMD. In the Tribunal's view the welfare and interests of MMD are best served by being accommodated where he will be well cared for, and where his interests and welfare will be best maintained and advanced.
The evidence before the Tribunal is that ACU has made appropriate arrangements to care for MMD in her home; she has accepted the advice of professionals such as hospital staff and the ACAT in arranging care and service provision to MMD in her home , she exercises care in feeding him, and an occupational therapist as well as the guardian from the office of the Public Guardian, have observed a significant improvement in MMD's presentation. The Tribunal is satisfied that this accommodation placement is in MMD's best interests for these reasons.
The Applicant has maintained that MMD's best interests would be served by a return to reside with the Applicant, the Tribunal does not find that this is established on the evidence. The Tribunal finds, on the evidence, that MMD was in poor health when admitted to St George hospital after residing with the Applicant, and the poor health exhibited included malnutrition and deconditioning - which is indicative of problems with delivery of adequate care in the Tribunal's view (the report by the senior aged care dietician is of this opinion in relation to nutrition). The Tribunal further finds on the evidence that the Applicant did not follow advice after MMD's discharge from hospital in 2009 (in relation to use of food thickener) - the Tribunal so finds given the evidence of professional staff from St George hospital in the reports, as discussed above, and given the evidence of ACU that the food thickener given to the Applicant on MMD's discharge from hospital in 2009 was unused at the time of the admission in 2010.
The Tribunal finds that the evidence indicates that the Applicant has difficulty following professional advice as to the care of MMD, and finds this is indicated also by the evidence that he did not follow professional advice during the trial of care which was set up at St George hospital during the admission, in particular as to the feeding of his father, nor did he complete that trial of care. The Applicant relies on his own medical opinion as a doctor in relation to the care of MMD, and does not follow advice given by other medical and professional staff, including dieticians and speech pathologists, on the evidence before the Tribunal. (The reports by the occupational therapist and speech pathologist express concern about provision of care by the Applicant in terms of compliance with professional advice as to care). When the allegations about inappropriate care, or failure to follow advice, were put to the Applicant by the Tribunal his response was that his care would be appropriate and his feeding of MMD correct, given his status as a doctor.
The Tribunal considers, on the evidence in this matter, that the Applicant may not be able to maintain nutrition for MMD - MMD was malnourished on admission to hospital in 2010, and during the trial of care at St George hospital the Applicant did not demonstrate good skill in feeding his father (he fed him too fast during the trial at the hospital and refused to follow nursing advice) - this causes the Tribunal concern that the Applicant may not be able to maintain nutrition for MMD. Given the importance of maintaining MMD's nutrition and hydration, then the Tribunal cannot be satisfied on the evidence, that it would be in MMD's best interests to be cared for by the Applicant at the home of the Applicant. Given the Applicant's difficulties in following professional advice generally as to care of MMD, and given MMD's high care needs, then the Tribunal could not be satisfied that MMD's welfare and best interests would be met by being accommodated with the Applicant. The evidence indicates that ACU demonstrated patience in feeding MMD, so as to be able to best maintain nutrition and hydration. Given that the evidence also indicates that MMD's presentation has improved during his time at ACU's house, and that services are in place to meet MMD's high level care needs, and given the other benefits of the accommodation there as detailed above, then the Tribunal is satisfied on the evidence in this matter that the correct and preferable decision is for MMD to reside with ACU.
Accordingly, for reasons detailed above, the Tribunal affirms the decision under review.
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Decision last updated: 18 July 2011
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