BFJ and BFK v Public Guardian

[2014] NSWCATAD 141

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	BFJ & BFK v Public Guardian [2014] NSWCATAD 141
Hearing dates:	24 June 2014
Decision date:	16 September 2014
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	A Scahill, Senior Member
Decision:	Decision of Public Guardian affirmed
Legislation Cited:	Civil and Administrative Tribunal Act 2013 Guardianship Act 1987 Guardianship Regulations 2005
Cases Cited:	Drake v Minister of Immigration and Ethnic Affairs (1970) 2 ALD 60 at 77 PZ v NSW Trustee and Guardian [2011] NSWADT 48
Category:	Principal judgment
Parties:	BFJ and BFK - Applicants DAB and DAC - Second Applicants The Public Guardian -Respondent
Representation:	H Bennett ( Applicants BFJ and BFK) G Moore (Respondent) Esplins Solicitors (Applicants BFJ and BFK) DAB and DAC (Applicants in person) Crown Solicitor's Office (Respondent)
File Number(s):	1410095
Publication restriction:	S64 Civil and Administrative Tribunal Act applies.

reasons for decision

Introduction

1. Mrs CFA is a 95-year-old woman of Italian heritage. She is widowed. She has four adult children. On 30th March 2012 the Guardianship Tribunal appointed the Public Guardian and Trustee to make decisions on her behalf in relation to access, accommodation, health care, medical and dental consents and services.

1. On the 7th of March 2014 the Public Guardian determined that CFA should reside permanently in a nursing home. The amended application before the tribunal is the amended application by BFJ and BFK her daughter and her son to review the decision to place CFA in a nursing home permanently.

1. The amended application seeks that CFA return to her home to live. A lift would be installed to enable CFA to enter and exit her home. The amended application also proposes alternatives such as a temporary stair climbing device or accommodation with her daughter BFJ while a lift is constructed.

Background

1. Until December 2013 CFA lived in her own home in Sydney's inner west with her eldest son BFK as her primary carer. BFJ, her daughter, lives in the next street. BFJ has assisted BFK to care for CFA in her own home over a period of time. CFA's other children, DAB, her daughter, lives nearby and her son, DAC lives a little further away.

1. In December 2013 CFA was admitted to Ryde Hospital with a chest/respiratory infection. After this admission, the Public Guardian decided in January 2014 to place CFA in respite care in Mary Potter nursing home. On 26th February 2014, BFJ and BFK applied to the New South Wales Civil and Administrative Tribunal (NCAT) to review the decisions of the Public Guardian on 10 and 31 January 2014 to place CFA in the nursing home in respite.

1. When the matter was considered by NCAT, the Public Guardian was required by NCAT on 4th March 2014 under section 28 of the Guardianship Act 1987 to make a final decision about CFA's accommodation by 11 March 2014.

1. The current matter before the tribunal is an amended application seeking review of the Public Guardian's decision of 7 March 2014 to place CFA permanently in a nursing home. This amended application was lodged on 14 April 2014.

Jurisdiction

1. Section 80A of the Guardianship Act 1987 ('Guardianship Act') and clause 17 of the Guardianship Regulations provide for NCAT to review a decision of the Public Guardian made in exercising the Public Guardian's functions under the Guardianship Act as a Guardian.

1. Applicants who may apply to NCAT under s80A of the Guardianship Act include the protected person, the spouse of that person, a carer, and 'any other person whose interests are, in the opinion of the NCAT, adversely affected by the decision' (s 80A (2) (d)). The tribunal is satisfied that the Applicants BFJ and BFK have been the carers for their mother, CFA, and so fall within the ambit of the provisions of s80A.

1. At hearing DAB and DAC, CFA's daughter and son respectively sought to become parties to the amended application for review under section 80A. This was not opposed by the other parties. DAB and DAC were granted applicant status on the basis that they said they were adversely affected by the decision to place their mother in a nursing home permanently. However at hearing DAB and DAC, CFA's daughter and son submitted that it was appropriate to place their mother permanently in nursing home care.

1. In conducting the review, it is the role of this tribunal to conduct a merits review to determine whether the Public Guardian's decision that CFA reside in a nursing home, on a permanent basis is the correct and preferable one having regard to the material before the tribunal including any relevant factual material and any applicable written or unwritten law. The tribunal may take into account material which was not before the decisionmaker. See Drake v Minister of Immigration and Ethnic Affairs (1970) 2 ALD 60 at 77.

1. In making its decision, the tribunal is to have regard to the principles set out in section 4 of the Guardianship Act, which provide as follows:

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. See PZ v NSW Trustee and Guardian [2011] NSWADT 48 at 16.

Decision and Report of the Public Guardian 7 March 2014

1. The decision subject of the amended application was the decision of the Public Guardian on 7 March 2014 that Mrs CFA should be permanently placed in a nursing home. CFA had been in respite care since late January 2014 in the Mary Potter nursing home.

1. The Principal Public Guardian's report set out the background to the decision. The reasons for the decision were set out in terms of the principles under section 4 of the Guardianship Act. The Report set out that the guiding factors in the decision-making had been to consider care in an institution as a last resort and that the welfare and interests of CFA were paramount. The decision was based on placing particular emphasis on promoting CFA's welfare and interests. The primary factor for the decision maker was the capacity of BFK and BFJ to meet CFA's high care needs. These included the need for 24-hour care; for two people to assist her mobilisation; and her dietary and therapeutic care. The Public Guardian was not satisfied on the basis of the information then before the Public Guardian that BFJ and BFK could provide this care. It noted that the volatile nature of the family relationships meant that there was an exposure to potentially traumatic family conflict which would be higher if CFA went home to the care of BFK and BFJ in her own home. A return to her own home in the care of BFK and BFJ would also mean there was difficulty in maintaining CFA's access with DAB and DAC. The report noted that the siblings DAB and DAC were supportive of the nursing home placement. The reports provided from staff at Ryde Hospital and the GP who had been seeing CFA in the Mary Potter nursing home also supported the placement. The Public Guardian noted that CFA's views were that she wished to see all her children; she wished to return home but that she was not unhappy in the nursing home.

1. The report considered the decision-making process through the six principles set out in the Guardianship Act as follows.

Welfare and interests

1. The Public Guardian referred to a report dated 13th December 2013 from Ms Belinda Allan, occupational therapist at Ryde Hospital who said that CFA needed two people on a forearm support frame with transfer belt for transferring and mobilising short distances. This recommendation was supported by the physiotherapist Ms Leung at Ryde Hospital in her report dated 16th December 2013. The Public Guardian drew the conclusion that this need could not be met at home in the care of her primary carer, BFK. This presented a risk to CFA's safety when she was mobilising.

1. There were multiple conflicts in the family in relation to CFA's nutrition, medication and personal care. These concerns and complaints could be better oversighted and monitored if CFA were in residential care. Residential care would provide 24-hour care by trained staff who were able to meet CFA's identified needs - such as medication, diet, and two-person support with transfers. It would also enable all of CFA's children to visit and assist with these needs.

1. The Public Guardian referred to a conversation between himself and the treating GP at the nursing home, Dr Bodil Broeng-Nielson, in his report of 7th March 2014. He said that Dr Broeng-Nielson identified that it would be an enormous task to meet CFA's needs at home. She thought that conflict was the most significant factor impacting on CFA's welfare.

Freedom in decision-making

1. The Public Guardian considered that a residential facility would give CFA a greater choice and opportunity for social and recreational activities and participation. She would be able to go out of the residential facility on access visits with children.

1. CFA's own views were that she wished to return home; she wished to see all her children but that the nursing home was not bad.

Family relationships and cultural and linguistic environment

1. The Public Guardian noted the volatility of the family relationships. It was important to CFA to see all her children. The degree of conflict and the lack of cooperation between the siblings meant that family relationships were easier to conduct in an aged care facility.

1. The Public Guardian also noted the likely impact of carer stress on BFK were CFA to return home to live with him, given the increasing needs of CFA and BFK's need to conduct his own life.

CFA's self-reliance in respect of personal and domestic needs

1. This was limited, in that CFA needed full assistance with all functions of daily living.

Protection from neglect and abuse

1. The Public Guardian concluded that CFA's protection from neglect and abuse was best met through residential care. There was insufficient evidence to conclude that CFA had been subject to neglect or abuse in the family setting. At the same time there were many cross accusations from the siblings of neglect and abuse of CFA by each other. Residential care would allow for these concerns to be dealt with by an independent person and would also, in the opinion of the Public Guardian, provide greater protection for CFA.

Evidence

1. The following relevant documents form part of the evidence before the tribunal in this matter:

(1)   Section 58 documents produced by the Respondent. These included four categories of documents.

(a)   Documents relevant to the Guardianship Tribunal proceedings in 2012 and 2013;

(b)   relevant correspondence to and from the siblings and the Public Guardian and medical professionals;

(c)   Medical reports; and

(d)   File notes and records of interviews from the Public Guardian.

(2)   Documents produced by the Applicant

• medical reports from Dr Gail Jamieson dated 16th of September 2013 and 11th of December 2013;

• report of Dr Paul Bowe treating general practitioner, dated 28th of August 2012;

• discharge referral of Berna Gurisik, speech therapist, dated 17th of January 2014;

• expert report of Associate Professor Gideon Caplan dated 29th of March 2014;

• statement of Elaine King aged care worker, dated 4th April 2014;

• statement of Elizabeth Mumford aged care worker, dated 11th of April 2014;

• statement of BFJ dated 11th of April 2014 ;

• statement of BFK dated 13th of April 2014;

• application for administrative review filed on the 6th February 2014; and

• amended application for administrative review filed 14th of April 2014.

1. The following people gave oral evidence in the matter:

• Dr Bodil Broeng-Nielson - visiting general practitioner;

• Ms Anne Copeman social worker, Ryde Hospital;

• Ms Sarina Browne social worker, Ryde Hospital;

• BFK;

• DAB;

• DAC;

• Associate Professor Gideon Caplan- specialist geriatrician; and

• Mr Sean Hosking - Principal Public Guardian.

Evidence of BFK

1. BFK had made a statement dated 10 April 2014. He also gave oral evidence. BFK had lived in the family home with his mother for 40 years. After the Public Guardian had been appointed he had contacted the Public Guardian in August 2012 and noted the need for a lift to enable his mother to continue to enjoy her home. CFA's admission to Ryde Hospital in December 2013 had been a prudent precaution and within a short period of time Ryde Hospital had determined her well enough to be discharged. However in late January 2014 the Public Guardian had determined that his mother should go into respite care.

1. He noted that the disputes about access had been dealt with through decisions of the Public Guardian in December 2012, December 2013 and February 2014. Disputes had usually risen only when the terms of access were not made clear. He had used a respite worker to assist in the access visits at home from his siblings DAB and DAC.

1. He affirmed his capacity, together with his sister BFJ, to care for CFA in her home. CFA uses a wheelchair to facilitate getting around in the home. He and his sister BFJ were experienced in caregiving, having done so for their late father who also had dementia. He provided a care plan attached to his statement of 10 April 2014. He and BFJ were also able to provide the extra care, such as leg massages, that his mother needed. He contends these could not be provided in residential care. He said that a lift was needed to ensure that his mother could enter and exit her home.

1. He observed that his mother was depressed in the nursing home

1. Under cross-examination he said that for his sister DAB to have access to his mother, CFA, there would need to be a supervisor at all times in the family home. He agreed that he and DAB and DAC could not have a civil conversation. He did not agree that in the nursing home two people were used to transfer CFA. He did not need a mobile phone as he was always with his mother and could be contacted by the home telephone. He said he had cared for his mother and father in their home by doing such things as shopping, banking and carrying things. His mother didn't speak very good English and so he had always spoken on her behalf.

Evidence of Associate Professor Gideon Caplan

1. Associate Professor Caplan is a specialist geriatrician and Director of Geriatric Medicine at Prince of Wales Hospital in Sydney. He had provided a report dated 29th of March 2014. He had visited CFA at the nursing home and his view was that she would be best placed in her own home. He bases this on his studies and experience that most people do better if living in their own home with support. He said that a nursing home placement should be a very last resort.

1. When he had visited CFA in the nursing home he had been able to assist her to move on his own by supporting her as she stood up and moved to a walking frame. Being in a nursing home did not prevent people from falling over. He said that people fall over wherever they are. Being in a nursing home presents a risk to people as illnesses spread quite easily. He considered the care plan which had been put together by BFJ and BFK to be very comprehensive. While CFA might need to be accommodated in a nursing home in the future, it did not mean that she should be there now. A movement from the nursing home now to home would not be disorienting for her. He was unable to say whether the family conflict caused trauma for CFA. In any event, he did not think that CFA being in a nursing home would help to fix the family disputes. He said that he considered that the nursing home offered CFA limited social interaction.

1. Professor Caplan concluded that, on balance, CFA would benefit both mentally and emotionally overall from returning home. Returning home may even make a difference to her physical health.

Evidence of Sean Hosking Principal Guardian

1. Mr Hosking had been the decision maker in determining that CFA should be placed permanently in a nursing home. He had provided his reasons in the report dated 7th of March 2014. He had had carriage of the matter since February 2014.

1. He said he had spoken with Mr Mgubua, the care manager at Mary Potter nursing home. Mr Mgubua had told him that the nursing home uses two-person transfers with CFA. Mr Mgubua had described CFA as "happy" rather than "very happy", in the Mary Potter nursing home.

1. He said that CFA's access with her 4 children was generally working when CFA was in the nursing home because of the arrangement worked out by the Public Guardian. This was so - other than on the first occasion where the plan had not been understood by DAB. He did not consider that the plan for access by all the siblings to CFA at home would work because of the Public Guardian's past experience of the continuous conflict in the family. He considered that having an independent person or respite carer overseeing DAB's access as proposed by BFK would be provocative. The issue of cost of respite carers was one for the Public Trustee. He had considered that it was important that CFA not be returned home temporarily then to be moved again, as frequent moves were not good for people with dementia. This was his conclusion from his experience in working in aged care. He also said that the Public Guardian needed to consider the overall implications of their decisions not just each individual step.

1. He did not have any medical evidence concerning the impact of the family conflict on CFA. He thought it was a common sense view that the family disharmony would have some impact on CFA. It was not strictly a medical matter. In his experience the nursing home offered a better likelihood that access by all family members would be functional. The nursing home environment could assist in controlling the conflict. There would not be such control were CFA to return home. The Public Guardian again considered it was a matter of common sense that the conflict in the family was more likely to escalate in the home rather than in the nursing home. There would be greater risk to CFA were the extremely volatile family relationships to escalate in the home than in the nursing home. It was more likely that the access plan that had been put together for the nursing home could be controlled within the nursing home rather than at home.

1. The Public Guardian had not investigated the multiple complaints received from family members about other family members as it was not an investigative body. He was not suggesting that the care at home had been poor. His primary concerns for CFA were that were she to be returned home, the risks of family dispute constituted a serious risk, as did the need for two-person transfers. He had reservations about the capacity of BFJ and BFK to meet CFA's needs at home.

BFK's submissions

1. BFK submitted that together with his sister BFJ they could meet their mother's identified care needs at home. Her health and physical condition was now similar to her condition prior to her Ryde Hospital admission in December 2013.

1. The Public Guardian could set out clear access arrangements which could be made workable together with an independent person such as the respite worker. His mother was unhappy in the nursing home. She was distressed by the condition of others around her and felt captive. She cried when he and his sister BFK would leave her. He and his sister and a respite worker could provide the lightness and happiness that his mother enjoyed. She would feel safe at home and had her memories and security. Her cultural and linguistic environment could be best preserved at home. The access arrangements could not be better policed or managed by the nursing home. The Public Guardian's paramount concern should be to observe CFA's values of life, health, freedom, independence and her wish to go home.

Evidence of Dr Bodil Broeng- Nielson

1. The Public Guardian had included in his report a summary of his discussion with Dr Broeng-Nielsen, a general practitioner who visits the Mary Potter nursing home. Dr Broeng- Nielsen also gave evidence by telephone to the tribunal. Dr Nielsen had noted that CFA requires 24-hour care and that caring for her at home would constitute an enormous task. She expressed doubt to the Public Guardian as to how the proposed care arrangements at home could meet the requirement of two-person assistance for transfers. She said that CFA appears happy at Mary Potter nursing home. She is more stressed by her family than by her living arrangements. Mary Potter offers her more activities and an occupational therapist coordinating activities. She appeared to enjoy the company of other people and may be far less stimulated at home.

1. Under cross-examination by telephone at the hearing Dr Broeng- Nielsen said that she would defer to the opinions of a geriatrician. She did not have a view on whether CFA required two people to transfer her as this is a nursing matter. She did not know anything about CFA's home conditions. She sees CFA once a month individually, but also sees her interacting within the nursing home at other times.

1. She thought CFA was probably now more medically stable than she had been prior to her admission to the nursing home. She had not assessed her for her suitability to live at home. She said she was not aware of the impact of CFA's awareness of family disputes upon her. While caring for CFA at home would be an enormous task, she did not think it would be an impossible task. When asked by DAB whether her mother was happy in the nursing home, Dr Broeng- Nielsen said she had seen her laughing there.

Evidence of Ms Anne Copeman

1. Ms Copeman gave evidence by telephone. She is a senior social worker who had seen CFA at the Ryde Hospital during her admission from December 2013 to January 2014. Ms Copeman provided a letter dated 3 January 2014 addressed to the Public Guardian. She had said that residential care would be the best option at that time. She supported all of the siblings seeing their mother each day. She had considered at that time that respite care was appropriate for CFA until a lift were installed at home and the disputed access issues sorted. Had all the issues been resolved in January 2014, CFA would have been able to go home then.

Evidence of Ms B Allan

1. Ms Allan gave evidence by telephone. She is an occupational therapist at Ryde Hospital. Ms Allen had provided a report to the Public Guardian dated 16th of December 2013 concerning CFA's needs. Ms Allan had assessed CFA during her stay in December 2013- January 2014 as having high level needs which appeared to be being met by her son at home. In her oral evidence she recommended that two people needed to assist CFA in her mobility. There had been concerns from the speech therapist about CFA's diet. She considered that the decision to return CFA to her home would need to be made by considering lift and access issues, diet and mobility needs at the time of decision.

Evidence of Ms Sarina Browne

1. Ms Browne, Senior Social Worker at Ryde Hospital provided a letter dated 13th of January 2014 and gave oral evidence by telephone at the hearing. She had seen CFA four or five times in Ryde Hospital when Ms Copeman was on holidays. She had concluded that CFA did not like going out with her daughter DAB, as she was bossy. She had been shown photos and videos of injuries by BFK and BFJ. CFA had told that her bruises had been caused by her daughter DAB. However Ms Browne was not able to draw a conclusion about who had caused the bruises.

1. Under cross-examination she said that CFA had never complained about her care at home with BFJ and BFK. She considered that until a lift had been installed at CFA's home, that she could not be discharged to her home.

Submissions of BFJ and BFK

1. The Applicants relied on written submissions made in relation to the first accommodation decision and application for review filed on 26th February 2014 and submissions dated 24th June 2014.

1. At first instance, the Applicants had submitted that the correct and preferable decision was to allow their mother to return immediately to her home to live with BFJ while the internal lift was installed.

1. In the alternative, the Applicants submitted that the correct and preferable decision was for the Public Guardian to arrange for the installation of a temporary stair climbing device in their mother's home and allow her to return home to live with BFJ and use the temporary stair climbing device as an interim mechanism for entering and exiting her home until the internal lift was installed and functioning.

1. As a further alternative, the Applicants submitted that the correct and preferable decision was to allow their mother to move to her daughter BFK's home (which is on one level with a single step into the home) until the internal lift in CFA's home is installed and then allow her to return home to live with BFJ.

1. The Applicants set out the following reasons.

1. CFA has said to the Applicants and social workers that she wants to go home and be cared for by the Applicants, BFJ and BFK. This had also been noted by the Public Guardian and Elaine King, an aged care worker who has provided care to CFA in her home since around August 2013.

1. On 30 May 2008, CFA appointed the Applicants as her joint enduring guardians subject to directions that she should not be put in a Nursing Home, Old Peoples Home or such institution unless her guardians and 2 medical practitioners should agree in writing to do so. As CFA has expressly and repeatedly stated that she wishes to return home, the decisions of the Public Guardian are contrary to CFA's wishes, the Standards and the Convention.

1. The Public Guardian assessed CFA in August 2012 as suitable for "high level care". CFA had received high level care at home with her son and the Public Guardian allowed her to remain there until she entered Ryde Hospital in December 2013. Dr Tam, CFA's treating geriatrician and Ms King, an aged care worker, had attested to this high level care provided by the Applicants to CFA in her home.

1. BFK has provided a "Health Care Plan" which sets out how CFA will be cared for should she return home. The Applicants submitted that this Health Care Plan is achievable and will meet CFA's care needs, both medically, and in terms of her well-being more broadly. Associate Professor Caplan supports the practical potential for the implementation of the plan.

1. The Applicants are concerned that CFA's emotional and mental health will be adversely affected by the Decisions and her relocation to a new environment which is unfamiliar to her.

1. When she is at home CFA receives daily therapeutic massages to her legs from the Applicants and her paid carer which she does not receive in the nursing home. She also walks around her home with assistance as required. The combination of massages and assisted walking increases CFA's circulation and mobility.

1. The Public Guardian claims that if CFA were to return home she would "effectively be rendered house bound'. The Applicants have arranged for the installation of an internal lift in their mother's home so that their mother can easily enter and exit her home. The NSW Trustee and Guardian, CFA's financial manager, advised that the NSW Trustee and Public Guardian would only approve payment for the installation of an internal lift once the Public Guardian decided to move CFA home. Qualified builders have informed the Applicants that they could fully install an internal lift within approximately four weeks. In the interim period, the Applicants can arrange for the installation of a temporary stair climbing device in their mother's home which can mobilise their mother, while seated in her wheelchair, up and down the stairs of her home.

1. CFA is left in the paradoxical position whereby the NSW Trustee and Guardian will not approve the installation of an internal lift until and unless CFA returns home while the Public Guardian has decided a return home by CFA is contingent on the installation of a lift.

1. The Public Guardian's reasons for decision state that "Due to ongoing family conflict and the related difficulty of all parties accessing CFA in her home, the Public Guardian is of the view that family relationships will be more effectively maintained if CFA is placed in a nursing home". The Public Guardian's statement appears to place a greater emphasis on the quality of her relationships with her family and her family's access to her, than CFA's own wishes. CFA's close and personal relationships with the Applicants have been affected as a result of her move to Mary Potter Nursing Home.

1. The Public Guardian should have considered CFA's cultural and linguistic background in choosing her accommodation. The Applicants have regularly visited their mother in Mary Potter Nursing Home and have not met anyone there who is of a similar cultural or linguistic background as their mother. If the Public Guardian returns CFA to her home she will have the benefit of 24 hour contact with her children who are of the same cultural and linguistic background. CFA will also be able to recommence her outings within her cultural and linguistic community when she is ready to do so.

1. It would appear that the major determining factor underpinning the current decision for CFA to be accommodated in a nursing home is the conflict between the adult children. The Applicants submitted that a correct and preferable decision would not be arrived at by placing the wishes of any of the adult children above those of CFA herself.

1. Placing CFA in a nursing home has not, and will not, "solve" any access issues or extinguish the conflict between the siblings. Conflict between the siblings would appear to be longstanding, and is likely to continue no matter where CFA lives.

1. Whilst relying on the whole of the evidence filed in support of the application, the Applicants placed particular reliance upon the following medical evidence in support of these submissions and Orders sought:

• Dr Earnest Tam (senior staff specialist geriatrician) report dated 14 September 2012 (Respondent Section 58 documents: CI);

• Ms Belinda Allan (occupational therapist) report dated 16 December 2013 (Respondent Section 58 documents: C2);

• Ms Sarina Browne (senior social worker) report dated 13 January 2014 (Respondent Section 58 documents: C6;

• Ms Elaine King (aged care worker) statement dated 4 April 2014;

• Ms Elizabeth Mumford (aged care worker) statement dated 11 April 2014; and

• Associate Professor Gideon Caplan (senior specialist geriatrician and consultant physician) dated 29 March 2014.

Submissions of applicants DAB and DAC

1. DAB and DAC jointly submitted that their mother CFA was best accommodated in the nursing home. They considered that their mother was happy there and that she was being cared for safely. This arrangement had also facilitated their access with their mother. They relied on the reasons for decision of the Public Guardian for the placement of their mother in the nursing home.

Submissions of the Public Guardian

1. The Respondent, the Public Guardian submitted that he made the correct and preferable decision to decide that CFA should reside permanently in an aged care facility.

The clinical information available to the Public Guardian relevantly indicated that CFA requires 2 people to assist her transfer on the stairs (see documents "C2" and "C3"). Until an appropriate mobility mechanism is installed, it will be difficult for CFA to enter and leave her premises.

1. Her carers at Ryde Hospital had different views about whether CFA should be discharged into her home or into an aged care facility (compare documents "C5" and "C6").

Relevant Legislation

1. The Public Guardian set out the principles in section 4 of the Guardianship Act. These informed the making of the "correct and preferable decision" for the purposes of s. 63 of the ADR Act. The Public Guardian submitted the following.

Sub section 4(a) - CFA's best interests and welfare

1. It is in CFA's best interests and welfare to be accommodated in an aged care facility.

(I) Ensuring access to CFA to all her children whilst minimising conflict between family members

It is clearly in CFA's best interests that she be permitted to access all of her children. The only way that the Public Guardian can ensure that all of her children can access their mother in an environment which is safe for her is to accommodate her in an aged care facility.

1. The 4 children are divided into 2 hostile groups. The effect of this hostility is illustrated by a number of matters. The Guardianship Tribunal was satisfied that an independent person needed to be appointed as CFA's guardian due to the dispute between the siblings. Access has been accompanied by many disputes and allegations of abuse of each other.

1. In this regard, the Respondent submits that it is not useful or necessary for the Tribunal to prefer one side of the family's account of who caused the conflict over that of the other side. It is the fact of the dispute, not who is responsible for it, that is key.

1. Significantly, CFA has been present during at least some of these disputes and, on at least one occasion, was upset by them; she was said to be "screaming".

1. It hardly need be explained how distressing it must be to an elderly woman suffering from dementia to: (i) be locked out of her own home; (ii) to witness her children fight (and by all accounts direct intemperate, if not abusive, language to each other as well as to independent persons involved in her care); and (iii) and to have Police attend her home on multiple occasions. For this reason, Dr Broeng-Nielson was of the view that CFA is more stressed by the family disputes to which she is exposed than her living arrangements (see document D4").

1. It had been in CFA's best interests and in the interests of her welfare, for the Respondent to do something to stop these disputes from occurring. His options are:

• To make the access arrangements so that no disputes occur;

To preclude one side of the family from having access to their mother; or

To alter the accommodation model

1. The access arrangements which the Public Guardian has sought to implement to date have not succeeded in lessening the disputes between the family members. Given the history of dispute between the family members, there is no reason to believe that, were CFA to return home, the number of disputes and violent confrontations would reduce.

1. Option 2 is not, the Respondent submits, the "correct and preferable decision". If CFA were to return home, she would be living with BFK and DAB and DAC would be denied access to her. CFA has expressed her desire to continue to see all of her children on a number of occasions (see Annexure "A2", "B8" and "D3"). These views should be respected.

1. This leaves option 3 as the only option available to the Respondent. An aged care facility means that the contact is on neutral ground rather than in the family home. There are independent persons present who will be able to speak to the conflicting parties and, if nothing else, will be able to shield CFA from these disputes. Independent persons will have care of CFA, meaning that it will be unnecessary for the children to encounter each other at the beginning and the end of their access visits. An independent person can arbitrate any disputes.

1. Therefore, the Respondent submits that, given the almost certain inevitability of further conflicts between family members, moving CFA to an aged care facility is the "correct and preferable" decision.

1. (ii) A further reason why the correct and preferable decision is to accommodate CFA in an aged care facility is that the dispute has and will prejudice the ability of all children to care for their mother.

There is a lack of communication as to their mother's care.

DAB feels the need to take CFA away from the home environment. This appears to have resulted in DAB taking her mother out on the outings which both the Applicants, BFJ and BFK and some of the clinical advisors have identified as detrimental to CFA's health. The dispute also involves independent persons engaged to provide carer services to CFA. The carers have been caught up in the dispute. CFA is unlikely to receive optimal care where her carers have become involved in a family dispute.

1. Regard must be had to the ability of BFK to continue to perform his important responsibilities as carer given the amount of stress that the constant disputes are likely to cause BFK in his own home.

1. As he would be the primary carer were CFA to return home, it is essential that BFK be afforded the opportunity to perform his important responsibilities in a stress free environment. Again, it appears that it will not be possible to achieve this whilst CFA is living at home.

1. (iii) Allegations made as to deficiencies in care CFA is receiving at home.

A third reason why the correct and preferable decision is to accommodate CFA in an aged care facility is that enables an independent person to ensure that CFA is receiving an appropriate standard of care.

Both sides of the family have raised serious concerns about the standard of care CFA has received whilst members of the other side have been visiting her.

1. (iv) Problems in the care arrangements

A fourth reason why the correct and preferable decision to accommodate CFA in an aged care facility is that it is unclear whether she will receive the requisite standard of care when she is at home.

1. The clinical evidence available suggests that CFA requires two people to assist her with transfers (see documents "C2" and "C3"). At present, only BFK lives with her. It is conceded that BFJ is across the road, but she does not live with CFA full time.

1. The Public Guardian concedes that a lift could be installed to assist with CFA's entry and egress from her home.

1. (v) Now is the most appropriate time to commence a move

A final reason why the Respondent submits that it is in CFA's welfare and best interests to be accommodated in an aged cared facility is that it is probable that such a move will be required in the future and if the move is done now, this will cause CFA the least degree of disruption and confusion.

Sub sections 4(b) the freedom of decision and freedom of action of such persons should be restricted as little as possible and 4(d) the views of such persons in relation to the exercise of those functions should be taken into consideration

1. It is acknowledged that CFA does not wish to live in an aged care facility. However, as pointed out above, she has also expressed the view that she wishes to see all of her children. As submitted above, it has not been possible to achieve this in a way which is safe for CFA in her home environment.

1. Further, the need to ensure that she obtains appropriate care and to minimise her exposure to stressful situations should, the Respondent submits, be accorded more weight in these circumstances.

Sub section 4(c) such persons should be encouraged, as far as possible, to live a normal life in the community

1. It appears that, on occasion, disputes between family members precluded CFA from engaging with the community. It was alleged by DAB that when CFA was at home she was often put to bed in the afternoon or left alone and that she has been able to engage in events at the nursing home.

Sub section 4(e) the importance of preserving the family relationships and the cultural and linguistic environments of such persons should be recognised

1. For the reasons submitted above, the Respondent considers that accommodating CFA in an aged care facility will best preserve the family relationship of CFA to all her children.

Findings and Reasons

1. The tribunal did not hear from CFA directly, nor was there any written statement from CFA. The tribunal is of course not bound by the laws of evidence and empowered to inform itself as it thinks fit.

1. Accordingly the tribunal has had to rely on hearsay evidence as to CFA's wishes. The tribunal has interpreted CFA's wishes through the evidence of other witnesses including her son BFK, her daughter DAB and her son DAC. Dr Broeng-Nielson and Mr Sean Hosking, Principal Guardian also gave evidence of their understanding of CFA's wishes.

1. The tribunal makes its finding of facts through an analysis based on the principles set out in section 4 of the Guardianship Act.

Welfare and interests of CFA paramount consideration

1. The tribunal considers that CFA's welfare and interests are defined in terms of her daily needs of ordinary living, her medical needs, her safety, her interest in having contact with family members and maintaining her cultural background.

1. The evidence before the tribunal is that CFA's daily needs and medical needs were being met while she was at home, being cared for by her son BFK, with the assistance of her daughter BFJ. This is apparent from the reports of Dr Ernest Tam, Ms Belinda Allan, occupational therapist and Ms Sarina Browne, social worker. The statements of Ms King and Ms Mumford also support this contention.

1. Further, the tribunal accepts Professor Caplan's approval of the Health Care Plan put together by BFK and BFJ to meet CFA's needs in the future.

1. In her report of 16 December 2013, Ms Allan noted that to increase CFA's long-term safety were she to return home, she would need two people assisting her with transfers and an internal lift in the home.

Ms Sarina Browne, social worker, in her report of 13 January 2014 noted that were CFA to return home she should avoid excessive outings and would need two people to negotiate stairs, or an elevator within the home. Ms Browne was largely considering CFA's discharge from Ryde Hospital She suggested that CFA could be discharged in the interim to her daughter, BFJ's home, until an elevator was installed in CFA's home.

1. Dr Gail Jamieson, consultant geriatrician, noted on 16 September 2013 in her report, that CFA had advanced dementia, declining mobility and had had recurrent falls.

1. Mr Hosking, the Principal Public Guardian has noted in his conversation with the care manager at Mary Potter Nursing Home that two people are used to transfer CFA. Professor Caplan has indicated that he was able to transfer CFA on his own. In the circumstances the tribunal is satisfied that the weight of opinion is that CFA's ongoing safety requires two people to transfer her at all times. The tribunal is not satisfied that this would always be available were CFA to return home to care from her son BFK with the assistance of BFJ.

1. The tribunal has considered CFA's welfare and interests in having continuing contact with family members. The tribunal accepts that CFA has expressed a desire to see all of her children and that this is in her welfare and interests. The tribunal also accepts from the evidence that there has been ongoing disputes concerning the access between CFA and her daughter and son DAB and DAC while CFA was living in her home in the care of BFK. The tribunal does not need to find the cause of these disputes. The tribunal finds that DAB is likely to have preferred to exercise access to CFA when CFA was living in her home in the care of BFK, out of the home, because of the impracticability of DAB being at the home with CFA in the context of the bitter family disputes.

1. There is no evidence before the tribunal that the family disputes are likely to resolve. In the circumstances, the tribunal finds that the safest and most practical way for DAB and DAC to maintain contact with CFA is other than through attending at CFA's home. In these circumstances, the current access exercised by DAB and DAC at the nursing home has been the least problematic form of access so far attempted. It would appear that as CFA is decreasingly able to go on outings, the nursing home environment is likely to provide a broader range of stimulation to her than being at home in the care of BFK, assisted by BFJ. The tribunal bases this view on the presumption that DAB and DAC are unable to visit CFA in her home.

1. The tribunal finds that the current status of family relationships means that the siblings are unable to collaborate and be responsible for monitoring CFA's ongoing care needs.

Freedom of decision and action

1. The tribunal accepts from the multiple evidentiary sources, that CFA has expressed a very strong desire to remain in her home and avoid nursing home placement in the past and continues to express the desire to return home. CFA expresses this desire even though she has been diagnosed as experiencing advanced dementia. At the same time, she has stated that the Mary Potter nursing home is not too bad. The tribunal also finds that CFA wishes to see all of her children and would like to have access to all of them.

1. All witnesses agreed that CFA requires a high level of 24 hour care and that she would not be able to access her home at present because of the need to negotiate stairs. The tribunal finds that CFA's freedom of action is necessarily restricted by her diagnosed dementia and declining mobility as set out by Dr Jamieson in her report of 16 September 2013.

1. The tribunal has found that CFA's safety needs mean that her freedom of action requires support by two-person transfers.

Encouraged to live a normal life in the community

1. The reality of "a normal life in the community" for CFA needs to be viewed in the context of her physical and social needs. Remaining in her home in the care of BFK with the assistance of BFJ may be viewed as being a normal life for CFA. At present however CFA would be unable to access or exit her home because of the lack of access. This would necessarily restrict the ability to interact with others in the community were she to return home.

CFA's views

1. The tribunal finds that CFA would prefer to live in her home. The tribunal also finds that CFA wishes to have access to all of her children. However the tribunal does not have evidence before it of CFA's views about her medical care, her social needs or how services might be provided to her in her home.

1. The tribunal has been told that CFA is aware of her surrounds and interactions with other people. The tribunal understands that CFA would be aware of the intense family disharmony. The tribunal does not have direct evidence of the impact of the disharmony on CFA. The Respondent submits that on an occasion of family dispute, CFA was heard to be screaming. The Respondent also submits through the evidence of the Principal Guardian that common-sense dictates that it would be a cause for concern for CFA.

Importance of preserving family relationships and cultural and linguistic environments.

1. The tribunal accepts the view of the Applicants, BFJ and BFK, that placement in a nursing home will not resolve the family disputes. Equally, however, the tribunal finds that returning to the family home will not resolve these disputes. The relationships that can now be preserved appear to be those between CFA and each of her children. The tribunal finds that were CFA to return home this may preserve her relationship with BFJ and BFK. It would not in the tribunal's view however preserve her relationship with DAB and DAC. BFK has expressed the view that the placement of CFA in the nursing home has diminished his relationship with his mother. The tribunal accepts that the change of BFK's role from an intense close and consistent carer to access to CFA in the nursing home would have resulted in a diminution in his relationship with CFA.

1. The evidence of BFK was that there was no specific support for CFA's cultural and linguistic background in the nursing home and the tribunal accepts this to be so. The tribunal understands that the primary source of connection with CFA's cultural and linguistic background would necessarily be the connection provided by her children, her home life and visitors. There was no evidence before the tribunal concerning other visitors to CFA and how these may have assisted to maintain CFA's connection with her cultural and linguistic background either at home or in the nursing home.

Self-reliance in personal and domestic and financial affairs

1. The tribunal is satisfied from the evidence of CFA's children and the medical evidence provided by Professor Caplan, Dr Jamieson and Dr Broeng-Nielson that CFA is dependent upon 24-hour care and has no capacity to be self-reliant in personal domestic and financial affairs. The tribunal accepts that CFA is reliant upon care for all her needs.

Protection from neglect, abuse and exploitation

1. The tribunal is satisfied that CFA's current placement and, in the alternative, her placement at home provide protection from neglect and exploitation. There was a suggestion in the report provided by Ms Sarina Browne, that CFA it may have experienced injury while in the care of DAB. The tribunal makes no findings about this as there is insufficient evidence before it to do so.

Conclusion

1. The tribunal must consider CFA's welfare and interests as paramount. The tribunal is satisfied that CFA's safety demands 2 person transfers and 24 hour care. Two person transfers may be possible were CFA to return to live at home in the care of her son with 24 hour assistance from a paid carer and/or BFJ. However at present there is insufficient access to CFA's home for her to return there safely. The tribunal understands that were orders made returning CFA to her home that it would be possible for access to be provided through an internal lift.

1. However, were CFA to be returned to her home to the care of her son BFK and the assistance of her daughter BFJ and paid carers, the evidence is that there could be no effective access between CFA and her daughter DAB and son DAC. It is likely that disharmony amongst the siblings will continue. There was no proposal for bringing the disharmony to an end before the tribunal. It is implicit in all proposals for CFA's accommodation that contact between the 2 family factions should be avoided. Accordingly any plan for DAB and DAC to visit CFA at the family home for access is unlikely to go smoothly. This would likely be disturbing to CFA and ultimately deprive CFA of access to all of her children. It is likely that access to her children can continue to be organised and monitored were CFA to remain in her current nursing home placement. Despite one reported incident at the nursing home of conflict around an access visit, it appears that access at the nursing home has been relatively pacific.

1. The tribunal considers that CFA's safety is the most significant aspect of her welfare and interests. The tribunal is satisfied that to ensure CFA's physical safety it is necessary that all transfers involve 2 people. This could occur in CFA's home with the care of BFK, the assistance of BFJ and a carer affording CFA 24 hour care. The tribunal also understands that were the decision made to return CFA to her home, that entry and exit access for CFA could be provided fairly promptly. However placement at home in the care of BFK and BFJ and a carer would not, on past experience, permit satisfactory access for CFA to her daughter DAB or her son DAC. CFA's access to all of her children is also an important aspect of CFA's welfare and interests. In these circumstances, a return to CFA's home in the care of BFK, with the assistance of BFJ and an independent carer or carers would not be in CFA's welfare or interests.

1. The tribunal finds that the Public Guardian's decision to place CFA in permanent nursing home accommodation was the correct and preferable decision.

1. The decision of the Respondent is affirmed.

**********

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: 16 September 2014