ABJ v Public Guardian (GD)

[2012] NSWADTAP 3

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:	ABJ v Public Guardian (GD) [2012] NSWADTAP 3
Hearing dates:	25 November 2011
Decision date:	02 February 2012
Jurisdiction:	Appeal Panel - Internal
Before:	Magistrate N Hennessy, Deputy President L Goodchild, Judicial Member M Bolt, Non-Judicial Member
Decision:	Appeal dismissed
Catchwords:	APPEAL - - further evidence - leave to extend to the merits -
Legislation Cited:	Guardianship Act 1987
Category:	Principal judgment
Parties:	ABJ (Appellant) Public Guardian (1st Respondent) ACU (2nd Respondent )
Representation:	ABJ (Appellant, in person) NSW Trustee and Guardian (Respondent)
File Number(s):	119037
Publication restriction:	S126 of the Administrative Decisions Tribunal Act 1997 applies
Decision under appeal	Citation: ABJ v Public Guardian [2011] NSWADT 172 Date of Decision: 2011-07-18 00:00:00 Before: General Division File Number(s): 113044

REASONS FOR DECISION

1. HER HONOUR: ABJ has appealed against a decision of the Tribunal affirming a decision made by the Public Guardian that his father reside permanently with his sister. ABJ has appealed both on a question of law and has requested leave for the appeal to be extended to the merits of the Tribunal's decision: Administrative Decisions Tribunal Act 1997 ( ADT Act ) s 113.

1. The circumstances of the case are that ABJ' father was living with him until he was admitted to hospital on 31 October 2010. Following an application to the Guardianship Tribunal by hospital staff, an order was made that the Public Guardian be appointed to make decisions about ABJ's father's lifestyle and where he should live. The Public Guardian decided that ABJ's father should live with his daughter on a trial basis. That decision was then made permanent on 1 April 2011. That is the decision that was the subject of review by the Tribunal.

1. After the hearing, the Tribunal gave ABJ an opportunity to file and serve further evidence from a doctor who he said had made a comment to him about what was in the best interests of his father. The Tribunal gave a two week adjournment to obtain a statement or report from that doctor who ABJ said he had seen in 2009. The Tribunal stated at para 17 of its decision, that the purpose of the adjournment was not to provide an opportunity for the obtaining of a psychiatric review of ABJ's father. As it transpired, the medical report provided by ABJ did not support his oral evidence that a doctor in the hospital had told him that his father should be living with him. ABJ has explained to us today that he was unable to obtain such a report.

1. The Tribunal made a decision on 18 July 2011 in which it carefully examined the evidence, stated the law and applied the factual findings to the law. At para 25, the Tribunal said;

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.

1. The question of law that ABJ has identified as the ground for his appeal is that the Tribunal has failed to comply with s 4 of the Guardianship Act 1987 which sets out the general principles applicable to anyone exercising functions under that Act.

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.

1. ABJ relies on all eight principles set out in s 4 and says in particular that the Tribunal did not take into account the views of his father when making its decision. At the Tribunal hearing, ABJ attempted to tender a statutory declaration to the Tribunal in which his father purports to state that he wishes to live with ABJ. The Tribunal did not accept that statutory declaration. The Tribunal made the following observations and findings in relation to the principles in s 4 at para 20:

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..

1. It is the duty of the Tribunal and of this Appeal Panel to observe the principles set out in s 4 when exercising any function under the Guardianship Act . The Tribunal in this case was careful to set out those principles and take them into account. As we explained to ABJ in the course of the hearing, taking into account the principles in s 4 does not mean that the Tribunal is bound to give evidence as to those views or to make a decision which reflects those views.

1. The Tribunal observed the principles in s 4 extremely carefully and in accordance with the factual findings that it made. No error of law is disclosed.

1. The second basis for ABJ's appeal is that he seeks leave for the appeal to extend to the merits of the Tribunal's decision. In his Notice of Appeal he sets out thirteen matters on which he relies in support of that application. Each of those matters is either a disagreement with a factual finding made by the Tribunal or an effort to adduce further evidence which was not tendered at the hearing at first instance.

1. In their Notice of Reply the Public Guardian addresses each of the points made in ABJ's Notice of Appeal and correctly identifies the flaw in ABJ's grounds of appeal. In particular, the Tribunal did take into account the evidence that was put before it. ABJ adduced further evidence after the hearing of a view expressed by two of his relatives that he was a suitable person to care for his father. He says that the Tribunal did not take that evidence into account. However, that omission is explained by the fact that the Tribunal did not give ABJ permission to file further evidence of his relative's views after the hearing had been completed.

1. Even if the Tribunal should have taken that evidence into account, it was merely an expression of an opinion by some relatives of the appellant as to his suitability to care for his father. Expressions of opinion by non-experts with regard to the suitability of the appellant's care of the father are not, in the circumstances, given great weight.

1. In determining whether to grant leave to extend an appeal to the merits, one relevant principle is whether the findings of fact that have been made are so unfair or unorthodox that they should be set aside: K v K [2000] NSWSC 1052 per Young J at [15]. Apart from disagreeing with the Tribunal's decision ABJ provides no basis for concluding that the way the Tribunal went about its task was unfair or unorthodox.

1. ABJ's main point today was that he considers that his father should be referred for a psychiatric assessment because he says he is suffering from severe depression and should be assessed so that he can receive suitable medication. ABJ believes that that would assist him to recover and to be able to feed himself, to communicate and to understand what others are saying.

1. Another reason ABJ says that the evidence from a psychiatrist would be useful is that the psychiatrist could say whether his father had capacity to sign the statutory declaration which purported to say that his preference was that he live with his son. The Tribunal dealt with this issue specifically at para 17 of its decision. The Tribunal said:

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.

1. The Tribunal goes on to specify the purpose of the adjournment, that is, to obtain a report from a doctor, not to obtain further psychiatric evidence.

1. Through this appeal, ABJ is requesting that his father be given the opportunity to see a psychiatrist because that would bolster his evidence that the statutory declaration represents his father's true views. As with several of the other points ABJ makes in his Notice of Appeal, this is an attempt to re-run his case before the Appeal Panel. ABJ has had a full and proper opportunity to present his evidence and run his case before the Tribunal at first instance. The Tribunal has made findings which are adverse to him and which led it to conclude that the Public Guardian had made the correct decision. We refuse to extend the appeal to the merits of the Tribunal's decision.

1. The fact that ABJ is keen for his father to be assessed by a psychiatrist is a collateral issue to the issues properly raised by an appeal. The Public Guardian has the power to make decisions about ABJ's father and the medical attention that he should have. That order was made by the Guardianship Tribunal on 12 January 2011 and is reviewable at that time next year. The Guardianship Tribunal, gave the Public Guardian the functions of determining where he should live as well the health care, medical and dental treatment and other services he should receive. Consequently, it is the Public Guardian who has the power to arrange for a psychiatrist to assess ABJ's father if it is the view of the Public Guardian that that is in his father's best interests.

1. This Appeal Panel is not the forum to request that such an appointment be made or to express a view about the need for such an appointment. That is a matter for the Public Guardian alone.

1. ABJ has identified a question of law but has not persuaded us that the Tribunal has made an error of law. Nor has he satisfied us that the findings of fact made by the Tribunal are so unfair or unorthodox that they justify revisiting the decision. The appeal is dismissed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Administrative Decisions Tribunal.

Registrar

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Decision last updated: 03 February 2012