AZV v The Public Guardian
[2014] NSWCATAD 56
•02 May 2014
NSW Civil and Administrative Tribunal
New South Wales
Medium Neutral Citation: AZV v The Public Guardian [2014] NSWCATAD 56 Hearing dates: 12 November 2014 Decision date: 02 May 2014 Jurisdiction: Administrative and Equal Opportunity Division Before: L Goodchild, Judicial Member Decision: Decision under review varied
Catchwords: GUARDIANSHIP - Review of decision as to access - decision varied Legislation Cited: Administrative Decisions Tribunal Act 1997 Guardianship Act 1987 Category: Principal judgment Parties: AZV (Applicant)
Public Guardian (Respondent)Representation: AZV (Applicant in person)
Crown Solicitors Office (Respondent )
File Number(s): 133238 Publication restriction: S65 of the Civil and Administrative Tribunal Act 2013 applies
reasons for decision
The applicant has applied to the Tribunal under s.80A of the Guardianship Act 1997 for review of a decision of the Public Guardian to restrict the applicant's access to his son ("OL") at supported group home accommodation ('the group home") where the son lives such that the applicant is to have access to his son only at the group home and further that if the access is to be in OL's bedroom, the bedroom door is to be left open.
The applicant is the father of OL. There was no dispute that he is a person whose interests are adversely affected by the decision (see s.80A(2)(d) as to who can bring applications for review).
Background
OL is a 22-year-old man who resides in the supported group home accommodation operated by the MC and funded by Aging Disability and Home Care ("ADHC"). OL is said to have an intellectual disability, Asperger's Disorder, ADHD, bipolar disorder and mental illness. On my perusal of the voluminous documentation tendered by the respondent, there are multiple and conflicting diagnoses of OL.
On 23 April 2013, the respondent, the Public Guardian, was appointed by the Guardianship Tribunal as OL's guardian to make decisions for him about his accommodation, health care, access, medical and dental treatment and his access to services. In its determination, the Tribunal had regard to the necessity for an independent decision maker due to the conflict that arises between OL's parents when decisions need to be made regarding OL's care and welfare.
On 28 May 2013, the respondent made an access decision as follows:
The Public Guardian consents to [the applicant] having access with OL at the group home at [address]. OL's bedroom door is to be left open if access occurs in the bedroom.
The respondent says that the decision restricting access by the applicant to his son was made having regard to OL's safety and welfare and for the purpose of protecting him from neglect, abuse and exploitation, in response to, amongst others, a concern arising from:
an allegation that the applicant assaulted OL during an access visit on 4 March 2013 and other suggestions of violence and verbal/emotional abuse by the applicant; and
the applicant's persistent refusal to give OL his prescribed medication or accept the need for same.
The respondent contends that the decision is in line with the principles of the Guardianship Act 1997, namely the need to protect OL from abuse, exploitation and neglect whilst preserving family relationships. The respondent contends that the Public Guardian is promoting the welfare and interests of OL. This decision was reviewed internally and the result of the review was that the decision should be upheld.
The respondent relied upon a bundle of documents in these proceedings in excess of 550 pages. Whilst I have perused that bundle, when the proceedings were heard, I requested of the representative for the respondent that she seek instructions to file and serve a document identifying exactly what of those 550 pages I am to have regard for the purposes of this decision. The respondent has, subsequent to the hearing, provided a document entitled, "Outline of Evidence". I have had regard to all of that material.
The applicant tendered a bundle of documents. These documents included some of the documents relied upon by the respondent. They included photos, complaints to various bodies regarding the group home and the alleged poor care of OL, and documents requesting that OL's current medication regime be urgently reviewed. The applicant also prepared a document as a response to the respondent's outline of evidence. I have had regard to all of that material.
At the hearing of the proceedings, the respondent submitted that should this Tribunal be minded to vary the respondent's decision, the respondent would agree to orders being made by consent that the applicant be permitted supervised access at the group home for a period of 6 months with a view to easing restrictions gradually if the applicant, through his conduct, demonstrates that there are no risks of assault or verbal abuse and interference with OL's medication.
THE EVIDENCE
There are conflicting diagnoses of the condition of OL. It appears that OL has had various psychological reviews and interventions since early childhood said to be for development delay and behavioural disturbance. There appears to have been brief admissions to paediatric wards. More recently, Dr Wurth, psychiatrist, has disputed most of the above diagnoses believing that OL may have mood disorder, is not convinced OL has bipolar disorder, pervasive developmental disorder or ADHD. Dr Wurth believes that OL's behaviour disturbance may relate to his ongoing cognitive impairment.
Dr Byrne, consultant psychiatrist, involved in the care of the OL for over one year opined in 2012 a provisional diagnosis of mild intellectual disability, mild autism spectrum disorder with a differential diagnosis of bipolar disorder. The notes from Dr Byrne indicate a plan of weaning OL off his current medication. Dr Byrne notes that OL's mother is concerned about the boy's medication regime and wanted a second opinion about his diagnosis and medication.
The applicant, and to a lesser extent OL's mother, have both been involved in their son's care. It is apparent from a perusal of the material filed in these proceedings that there is considerable conflict between the applicant and his former wife in relation to medical treatment and planning for OL.
It seems however that most recently, OL's mother has not been seeing her son. The applicant has continued to and wishes to continue spending time with his son. The applicant has had unrestricted and unsupervised access to OL since he has been a resident at the home from 2007.
Allegation of assault on 4 March 2013
There is an allegation that the applicant assaulted OL in March 2013. It seems that the circumstance of this alleged assault are that OL returned to the group home on 4 March 2013 with an abrasion on his nose, on his left ear, a small lump above his right eye and skin discoloration. This description is one documented by staff at the group home. There is further detail in this file note by the staff member, which records that when OL was asked about the cut across his nose, he became evasive. There is a further note, which records the staff member overhearing OL speaking to his sister, and he is reported to have said that his father had bit him on the ear. OL was taken the next day to Dr Leslie by staff at the Centre. Dr Leslie's notes are as follows:
Alleges that he was assaulted by his father at the shops when he became angry due to [OL] not answering his phone. He had a small abrasion on his nose and another below his left knee.
OL was taken to the police station to make a complaint. OL did not make a complaint to the police.
OL's sister was not called to give evidence. Dr Lesley did not give evidence. No staff from the group home were called to give evidence and none of those persons purporting to make statements adverse to the applicant were available for cross-examination.
The applicant responded to this allegation and admits that there was an altercation that he had with his son in the car, which he described more like "rough housing".
The applicant also submits that OL did not tell Dr Lesley that his father assaulted him. He says that Dr Lesley's note does not support such inference. The applicant submits that the staff from the group home who took OL to see Dr Lesley told Dr Lesley that his father assaulted OL.
In the circumstances of this case, I am not satisfied that the abrasion on OL's nose was as the result of an assault on him by his father. There is little probative evidence, which assists me so that a determination on this issue can be reached with any certainty.
Section 73 of the Administrative Decisions Tribunal Act 1997 makes it clear that, although the tribunal is not bound by the rules of evidence, its power to inform itself is subject to the rules of natural justice. The file notes and related documentary evidence relied upon by the respondent go to a core matter in these proceedings i.e. whether or not OL was assaulted by his father such that his father's access to him should be restricted. The respondent called no witnesses in the proceedings. The respondent relied solely on documentary material. None of the authors of the file notes or employees at the centre were available for cross-examination. Given the nature and source of the documents, the admissibility of the documents is not in issue. What weight can be placed on the assertions contained in them, when those assertions go to a core issue is the primary consideration.
The applicant gave evidence and he was available for cross-examination. It was not put to him that he had assaulted his son. In questioning by me, he admitted being involved in an altercation with his son, which he described as roughhousing. I have a lingering concern that in roughhousing with his son, his son should end up with injuries, albeit of a somewhat minor nature. The applicant should certainly exercise caution in the future in this regard.
However, I am not satisfied that I can safely make a determination that the applicant assaulted his son such that his access to his son should be restricted in the manner determined by the respondents.
MEDICATION
The applicant freely admitted that he had unilaterally altered his son's medication. This is simply unacceptable. The applicant is not a physician. It is an action that is irresponsible and unsafe. The applicant says he has only ever altered his son's medication regime by way of reducing the dosage, that he has never stopped his son's medication. That distinction is of no consequence. Any attempt to alter the medication regime as prescribed by medical professionals is unacceptable.
In questioning by me, the applicant accepted that he should not be altering his son's medication regime.
The records of Dr Lesley exhibited by the respondent show that Dr Lesley has made a recommendation that a second opinion with respect to OL be obtained as soon as possible. The documents disclose as recently as a few weeks prior to this matter going to hearing, that arrangements were to be made to seek an opinion with respect to a diagnosis of OL. One would assume that any second opinion would involve a consideration of the medication regime. In the circumstances of this case, and given the history of diagnoses and medication for this young man, the seeking of a second opinion is highly recommended and should be actioned as soon as possible. The second opinion is something that both parents have been calling for, for some time.
I was reminded by the legal representative for the respondent that the actions taken by the respondent or its agent with respect to OL's medication and medical decisions are not matters that are properly before me for my consideration in this hearing. That may be the case, however, the respondent's decision to restrict the applicant's access to his son was not a decision taken in isolation to facts and circumstances. One of those circumstances is a serious and ongoing concern by both of OL's parents with regard to their son's diagnoses and the appropriateness or not of the medication their son was taking. Giving the recent request by Dr Lesley for a second opinion, I would expect that the concerns of the applicant have gone some way to being addressed and as such I would hope that some heat will go out of the applicant's future dealings with the group home.
The submissions of the respondent point to file notes and records of the group home authored during 2012 and 2013 which reported combative and hostile behaviour by OL upon his return from his father's care, OL being unsettled upon return to the group home after spending time with his father and allegations that the applicant is verbally abusive to OL. The respondent relies upon these instances as support for its position that access to OL by his father should be limited to a controlled, contained environment. Again, it was not possible for these allegations to be tested.
The applicant denies the allegations of violence and verbal abuse. The applicant disputes the records made by the MC with respect to the behaviour of OL after his visiting. The applicant says that on many occasions, OL does not wish to return to the group home and that some instances of OL's behaviour is due to the medication regime.
It is apparent from the applicant's case that the most significant issue that concerns him is the medical care and the medication regime of his son. The applicant also says that because he has made complaints about the group home to various bodies - to the NSW Police, NSW Ombudsman and various Ministers offices, that the approach by the group home to seek to limit the contact with his son is not about concern for OL's welfare but as some sort of retribution and an attempt to silence him. I make no finding about these allegations.
The complaints made by the applicant are separate and unrelated matters to the proceedings before this Tribunal. This venue to not the appropriate one to ventilate those complaints. I am solely concerned about what is in the best interests of OL and whether or not the decision made to restrict the applicant's access to his son is the correct and preferable decision in the circumstances having regard to the objects and principles of the legislation.
The totality of the evidence discloses that the applicant's dealings with the group home have at times been combative and challenging. This is an unfortunate situation and clearly troubling for the applicant. I have no doubt, from my perusal of the notes from the group home, whilst not making findings of the factual matters, that the staff have found the applicant challenging in their dealings with him. I am concerned that this situation may have an adverse impact on OL.
There is no evidence that OL does not wish to spend time with his father or that he does not enjoy the time he spends with his father. Preserving familial relationships is an important and key principle that guides decision makers in matters such as these. This principal must be balanced with ensuring that person the subject of these orders is safe from exploitation or neglect or abuse.
Having been satisfied that the evidence does not allow me to determine that the applicant assaulted his son as alleged, I consider that restricting his access to his son solely to the group home with the restrictions imposed is not the correct and preferable decision. However, given the applicant's admitted conduct of interfering with his son's medication regime, I do determine that the applicant's access to his son should be restricted to daily contact with his son such that those charged with administering and monitoring OL's medication as recommended by his treating professionals can continue as recommended by them unhindered by the applicant.
CONCLUSION
In the circumstances of this case, the correct and preferable decision is that the access decision should be varied to the following:
That for a period of 6 months from the date of this order, that the applicant should have unrestricted day access to OL be it at the group home or away from the group home but that such access not include overnight time.
This Tribunal does not have the power to order the Public Guardian to undertake a review of the Applicant's access to his son in the future. I would expect however, that those charged with the care of OL would monitor how OL and his father's contact is progressing and on the basis of the information about OL's progress and wishes, and only when satisfied that the applicant will not modify or alter any treatment regime with respect to OL, consider re-instating the previous contact regime. If necessary, I grant the parties leave to relist the matter solely in respect of the terms of the variation I have determined. This relisting can be facilitated by telephone hearing with arrangements being made with the Registry.
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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
Decision last updated: 05 May 2014
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