CDJ v Public Guardian

Case •

[2015] NSWCATAD 275

•

30 December 2015

No judgment structure available for this case.

Civil and Administrative Tribunal


New South Wales

Medium Neutral Citation: CDJ v Public Guardian [2015] NSWCATAD 275
Hearing dates:25, 26 November, 14 December 2015
Date of orders: 30 December 2015
Decision date: 30 December 2015
Jurisdiction:Administrative and Equal Opportunity Division
Before: S Leal - Senior Member
Decision:

The decision under review is varied

Catchwords: GUARDIANSHIP - Review of decision as to access – welfare and interests of the person subject to guardianship – decision varied.
Legislation Cited: Administrative Decisions Review Act 1997
Civil and Administrative Tribunal Act 2013
Guardianship Act 1987
NCAT Administrative and Equal Opportunity Division Procedural Direction 5
Cases Cited: Drake v Minister of Immigration and Ethnic Affairs (1970) 2 ALD 60
P v NSW Trustee and Guardian [2015] NSWSC 579
Category:Principal judgment
Parties: CDJ (Applicant)
Public Guardian (Respondent)
F Ainsworth (Guardian Ad Litem)
Representation:

Counsel:
S Steirn (Applicant)
M Higgins (Respondent)

  Solicitors:
Clinch Long Letherbarrow Lawyers (Applicant)
Crown Solicitor’s Office (Respondent)
File Number(s):1510526
Publication restriction:Section 64 of the Civil and Administrative Tribunal Act 2013 applies.

REASONS FOR DECISION

Background

  1. CJM is a 91-year-old woman who suffers from advanced Alzheimer’s Disease, chronic renal disease and congestive heart failure. Since 2012, the Public Guardian, who is the respondent in this matter, has been her guardian. On 22 June 2015, the guardianship order was renewed for a further three years. ANZ Trustees Limited have been CJM’s financial managers since 2012. CJM lives at home where, since 28 April 2014, she has been receiving 24-hour care.

  2. From 2003 to 29 July 2015, the applicant lived with CJM in CJM’s apartment. The applicant’s late husband also lived there from 2003 until his death in July 2014.

  3. On 28 May 2014, the Public Guardian requested the applicant to vacate the premises to enable carers for CJM to use the apartment’s second bedroom in order to provide the 24-hour care required by CJM. The Public Guardian continued to make requests for the applicant to vacate the premises, culminating in an access decision on 27 July 2015 denying the applicant access to CJM for a period of six months.

  4. It is this access decision that is the subject of the application for review now before the Civil and Administrative Tribunal (‘the Tribunal’).

  5. Dr Ainsworth has been appointed by the Tribunal as the guardian ad litem in accordance with s45(4) of the Civil and Administrative Act 2013. The role of a person appointed as a guardian ad litem is to be a “best interests” representative for the person. That means that the guardian ad litem is to conduct the proceedings in a way he or she considers to be in their best interests rather than on the basis of the person’s views or ‘instructions’. (NCAT Administrative and Equal Opportunity Division Procedural Direction 5).

Non- publication of names

  1. Pursuant to s64 of the Civil and Administrative Act 2013, I have made an order prohibiting the disclosure of the name of the applicant and the person subject to guardianship. For this reason, I will refer to the applicant as CDJ and to the person subject to guardianship as CJM.

Jurisdiction

  1. In conducting the review, it is the role of the Tribunal to determine whether the Public Guardian’s decision to prohibit the applicant having access to CJM for a period of 6 months from 27 July 2015 is the correct and preferable decision, having regard to the material and any applicable written or unwritten law (s63 of the Administrative Decisions Review Act 1997 (NSW)). The Tribunal may take into account material which was not before the primary decision maker: Drake v Minister of Immigration and Ethnic Affairs (1970) 2 ALD 60 at 77.)

  2. In exercising its jurisdiction, the Tribunal should be guided by the paramount purpose of the guardianship jurisdiction, to protect the welfare and interests of CJM, the person the subject of a guardianship order (s4(a) of the Guardianship Act 1987 (NSW); P v NSW Trustee and Guardian [2015] NSWSC 579). A related objective of the Act is protecting CJM from ‘neglect, abuse or exploitation.’ (s4(g) of the Guardianship Act)

  3. According to section 4 of the Guardianship Act, it is the duty of everyone exercising functions under this Act with respect to persons who have disabilities, including this Tribunal on review, 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.

Issues

  1. The following issues arise in this case:

  • whether the Public Guardian, and on review the Tribunal, has the power to make a decision regarding access to CJM;

  • to what extent, if any, CJM’s wishes should be taken into account by the Tribunal;

  • whether the applicant’s behaviour has impacted negatively on CJM in the past and whether it is likely to impact upon her negatively in the future; and

  • whether it would be in the welfare and interests of CJM to see the applicant and if so, on what terms.

Evidence

Dr Beveridge

  1. Dr Beveridge is a staff specialist in geriatric medicine at St Vincent’s Hospital. He has been treating CJM since 2010 and last saw her in November 2015. In 2011, CJM was diagnosed with dementia.

  2. In a letter to the Guardianship Tribunal (as it then was) dated 9 May 2012, Dr Beveridge raised concerns in relation to CJM’s vulnerability and noted a promise made to the applicant’s husband to sell her apartment to him at well below market value. He also noted that the applicant’s family had ‘moved into this unit at a rental rate that is also well below market value.’

  3. Dr Beveridge also stated that it appeared that the applicant and her (now late) husband lived rent-free in CJM’s apartment, that CJM was sleeping on a bed without sheets and that the applicant was stopping CJM from attending a day centre and from obtaining appropriate care.

  4. According to Dr Beveridge’s letter:

There are concerns about vulnerability and that she may be taken advantage of, although it is notable that she clearly has a good relationship with [the applicant and her late husband] and their family and she delights in [the applicant’s] grandchildren being present…It is my opinion that [CJM] has a dementia process that affects her ability to make clear and informed decision about both care and finances. It is not clear to me that those appointed are necessarily acting always in her best interest, although it is important to note that the relationship with the [applicant and her husband] is important to [CJM] and that that should be maintained as long as it is in her best interest.

  1. In a report prepared by Dr Beveridge for these proceedings, he confirmed that CJM has dementia of moderate severity. She also has congestive cardiac failure, vascular heart disease, previous pulmonary emboli, chronic kidney disease, hypertension, anaemia, dyslipidaemia and type 2 Diabetes Mellitus. He confirmed that she requires 24-hour care and is now house bound.

  2. According to Dr Beveridge:

[CJM] is able to converse and remains quite articulate. Her conversation however often resides with past memories rather than recent and becomes less effective as she forgets what she has discussed. As her short term and working memory is markedly affected she forgets quickly what she has said and loses the train of conversation and thought. Thus the conversation is not an effective communication as it is usually not about relevant current information but regresses to past memories of events. [CJM] has impairments of working memory, reasoning, cognitive flexibility, planning and judgement. She is insightless as to her impairments.

  1. In his report, Dr Beveridge referred to his review of CJM on 23 October 2015. He noted that whilst CJM did not spontaneously recall that the applicant and her late husband had been living with her, when questioned about them she told Dr Beveridge that she had known the applicant’s late husband since he arrived in Australia, was able to describe him in earlier days and was aware that he had died recently. With some prompting, CJM was able to acknowledge that the applicant and her husband had stayed with her. She told Dr Beveridge that her relationship with the applicant was very good and acknowledged that the applicant had kept her company.

  2. According to Dr Beveridge:

There is no doubt in my mind that [CJM] sees the relationship with [the applicant] as a good one. She speaks warmly of her and her late husband. However, there was no reference to needing her ongoing company or support…In response to the question about deleterious affects on [CJM’s] health in the absence of [the applicant], there is no good evidence that I have found to support this. [CJM] expressed no sense of loss or grief for the absence of [the applicant.] She denied being depressed. When I arrived she was busy playing scrabble with the carer and was winning. She was engaged about some things such as her place and view. She described that her quality of life was good. There was no description of any sense of loss in not seeing [the applicant], she was resigned that she was busy with her grandchildren was her expressed understanding of the situation.

  1. In evidence before the Tribunal, Dr Beveridge stated that CJM has a long-term memory of the applicant. Dr Beveridge told the Tribunal that CJM:

knows [the applicant], she speaks warmly of her and fondly on her but is not missing her in any way I could observe.

  1. He agreed that CJM enjoyed her relationship with the applicant but did not have the ability to evaluate the negative parts of the relationship and the impact on her care. He agreed that CJM has always had a good relationship with the applicant and the applicant’s children and grandchildren.

  2. Dr Beveridge expressed his concerns in relation to the applicant’s behaviour towards CJM. He expressed the view that, in relation to CJM’s care, the applicant didn’t follow medical advice, which included removing CJM from hospital contrary to medical advice. He also expressed the view that the applicant had been an obstruction to CJM’s care.

  3. In answer to the question as to the importance for CJM to have contact with her friends, Dr Beveridge stated that there were pros and cons:

She likes [the applicant] but..the applicant causes a level of anxiety that makes everything worse and [CJM] can’t evaluate that. [She] had no concept of what looked like neglect. I was concerned that [the applicant] took [CJM] out of hospital with a fractured shoulder. It makes me question why.

  1. In answer to the question that given the obstructions to care have been removed, would the applicant’s friendship with CJM be a good thing, Dr Beveridge replied that the applicant wouldn’t change her personality. He gave his opinion that the applicant would work CJM until she becomes hysterical. According to Dr Beveridge, it is impossible to separate the applicant’s personality and that he does think it can be controlled. He expressed the view that the applicant’s access to CJM would have a negative impact on CJM’s care because ‘that is the applicant’s personality, she riles her up.’

Ms Baulderstone

  1. Ms Baulderstone works for Reliant Health Care and is the Registered Nurse Clinical Coordinator for CJM. Her role is to monitor and coordinate the care being provided to CJM. To do this, she reviews notes made by carers, speaks to the carers and visits CJM on a weekly or sometimes on a daily basis.

  2. She has not observed CJM to be distressed or concerned by the applicant’s absence from her apartment and noted that CJM made no mention of the applicant when Ms Baulderstone brought her a cake to celebrate her 91st birthday.

  3. In evidence before the Tribunal, Ms Baulderstone agreed that CJM speaks Italian and has a strong cultural identity to Italy. She agreed that CJM and the applicant speak together in Italian and that they share a friendship.

  4. She agreed that part of the friction with the applicant was because the applicant tried to interfere with CJM’s care and that it would be beneficial to CJM if the applicant took a less active role in her care.

  5. When shown the progress notes for CJM, she agreed that during the time she has been caring for CJM, there were less than ten entries relating to negative behaviour by the applicant. She agreed that the notes didn’t appear to record innocuous, pleasant interactions between CJM and the applicant.

  6. She told the Tribunal that CJM views the applicant’s late husband as a dear friend who she says she knew as a boy. Ms Baulderstone agreed that over the years, the applicant has also been a part of her life. She told the Tribunal that CJM was a really lovely lady who wouldn’t say anything bad about anyone. When shown handwritten care notes for CJM, she agreed that they showed positive interaction between CJM and the applicant and disclosed that on 24 August 2015, CJM mentioned that it had been almost a week since she had seen the applicant.

  7. She told the Tribunal that CJM receives visits from her cousins twice a week and that they had visited her daily when she was in hospital.

  8. In a statement dated 9 January 2015, Ms Baulderstone declared her belief that the applicant’s presence and behaviour in the apartment she was then sharing with CJM was detrimental to CJM’s health because of the stress caused by the applicant and because of her smoking in the unit.

  9. In a statement dated 28 November 2015, Ms Baulderstone stated that she overheard part of a conversation between CJM and the guardian ad litem during which the guardian ad litem explained to CJM that a decision had been made by the respondent with the consequence that the applicant has had to move out of the unit and cannot see CJM. CJM replied, ‘That’s terrible. I’ll fight it.’

  10. According to the decision of the Public Guardian in relation to the applicant’s access to CJM, for a considerable period of time, Reliant Health Care had to place two carers in the unit: one to care for CJM and the other to manage the behaviours of the applicant to prevent CJM becoming upset.

CJM

  1. In a statement signed on 5 June 2014, CJM stated that she had a fall whilst shopping with the applicant’s late husband, which saw her hospitalised with a fractured shoulder. CJM stated that after she returned home, the applicant’s late husband became very sick and had to go to hospital and the applicant ‘had to go backwards and forwards to look after me and [her husband].’ She stated that the applicant and her husband would take her to medical appointments or, if they weren’t available, CJM’s cousins would take her.

  2. In her statement dated 5 June 2014, CJM stated that the applicant and her husband had cooked for her, included her on family outings and took her to their hairdressing salon most days. She describes them as the family she never had.

  3. The respondent disputes that CJM was capable of understanding the contents of this statement which he says was synthetised by CJM barrister, Ms Cohen, rather than reflective of CJM’s views.

Ms Cohen

  1. Ms Cohen, a barrister, is also a client at the applicant’s hairdressing salon where she came to know CJM, who was often at the salon. According to Ms Cohen:

I have observed that [the applicant] supplied food for [CJM] whilst she was at the salon. I observed that they chatted together and patted each other affectionately. [CJM] usually sat in the salon doing her knitting and talking to other clients. She appeared contented when she was there. When I was at the salon, [CJM] often came to talk to me. [CJM] has said to me on many occasions words to the effect (referring to [the applicant and her late husband]) They have changed my life…I was very lonely before they came to live with me…they are my family…I haven’t had a real family since my parents were alive…they take me everywhere…they cook beautiful food and grow fresh vegetables for me…they have made my apartment look much better…they are so kind to me.’

  1. Ms Cohen agreed that she had drafted a statement signed by CJM on 5 June 2014. Ms Cohen told the Tribunal that she had drafted the statement from notes she had taken on 27 May 2014 and from an original statement taken in 2013 and filed in the Guardianship Division of this tribunal. Her handwritten notes, taken when she arrived at the salon to have her hair done, are before the Tribunal. Because of the circumstances in which the notes were taken, it didn’t occur her to take a formal statement at that time. It was her view that although CJM may have suffered some short-term memory loss, she remained capable of providing instructions. She agreed that her most recent statement was, in fact, a synthesis of her conversations with CJM.

Ms Conroy

  1. Ms Conroy is the Chief Executive Officer of Reliant Health Care. She confirmed that Reliant Health Care has been providing 24-hour care services to CJM since 28 April 2014. In her statement dated 14 September 2015, she confirmed that currently there is one carer looking after CJM each shift. The sole carer who spoke Italian to CJM left earlier this year.

  2. In evidence to the Tribunal, she confirmed that when there is a visitor for CJM, carers are asked to make notes as to who the visitor is. She agreed that CJM would benefit from contact with someone who cares for her deeply.

  3. She told the Tribunal that there had been friction between CJM and the applicant in relation to the care administered by Reliant Health Care. Whilst she agreed that the majority of this friction had occurred when the applicant was physically present in CJM’s apartment, some friction had continued when the applicant spoke to CJM by telephone. She accepted that CJM has known the applicant since the 1980s and agreed that friction can be caused by well-intentioned family and loved ones. She didn’t agree that the friction between the applicant and Reliant Health Care workers was well-intentioned.

  4. On one occasion after CJM became agitated as a result of the applicant’s behaviour, CJM became short of breath and an ambulance was called. Although Ms Conroy has not been physically present when CJM has become distressed, on two occasions she heard her distress in the background during phone conversations with carers.

  5. She told the Tribunal that the applicant had been given oral directions in relation to her behaviour. These included not to smoke in the apartment, to keep the home environment calm and not to upset CJM. No written directives were given to the applicant. No counselling was offered nor was any mediation suggested to try to ameliorate the situation between the professional carers and the applicant. No-one from Reliant Health Care sat down with the applicant to discuss their concerns.

  6. Ms Conroy told the Tribunal that she has no knowledge of any carers supervising access to their clients.

The applicant’s friend

  1. A longstanding friend of the applicant and her late husband, who have also been her hairdressers, gave evidence to the Tribunal. The applicant’s friend, who I will not identify by name, has known CJM since 2003 or 2004. In her statement, she described seeing CJM at the applicant’s hair salon where CJM would be having her hair done, knitting or reading the paper.

  1. It is her understanding that CJM saw the applicant’s husband to be like a son and that she was very fond of the applicant:

I noticed at the salon that the applicant was always caring for [CJM]. She would ensure she was comfortable, get her food and drinks, run errands for her, adjust her clothes, do her hair and hands and generally play the role that you might expect from a loving daughter..[CJM] kept herself busy knitting in the salon and talking to people. Each time I saw her, she was happy, content and comfortable…She was always well presented. Her hair was always done. Her clothes, which usually involved a long skirt, blouse and cardigan, were clean.

  1. It is her experience that the applicant would purchase healthy food for CJM and would take her shopping and on outings and trips as well as to her medical appointments.

  2. In relation to CJM’s unit, she stated that it was always clean and tidy:

I was usually in the living room with [CJM] and that room was well kept and maintained. [CJM] loved to play scrabble in there. The bathroom was clean. I did not see [CJM’s] bedroom as I never went in there.

  1. She told the Tribunal that carers started looking after CJM in April or May 2014, shortly before the applicant’s husband became ill and was hospitalised. This was stressful for the applicant who had to see her husband but who worried about leaving CJM.

  2. She stated that despite CJM having carers to look after her, the applicant would continue to cook for CJM, and the carers, after returning from the salon at night. It was her observation that the unit became more untidy after the carers moved in and that the applicant would be left to clean it up after returning from the salon.

The hairdresser at the applicant’s salon

  1. One of the hairdressers employed at the applicant’s hair salon provided a statement to the Tribunal. In this decision, I will simply refer to her as the hairdresser. She told the Tribunal that CJM would be at the salon most days, generally arriving with the applicant and her late husband in the morning:

[The applicant] would set [CJM] up at the start of the day with breakfast, knitting, patterns, radio and TV. [The applicant] was very caring and tried to ensure that [CJM] was occupied throughout the day…[CJM’s] favourite pastime however was speaking to customers and staff of the business. She appeared to enjoy that interaction greatly and rarely stopped talking throughout the day….[The applicant] organised meals and refreshments for her throughout the day. They involved her and kept her entertained. I would often hear [them] on the phone organising things for [CJM], such as medical appointments, bus trips or service people for her home… In the evening [they] would drive her home.

CJM’s second cousin

  1. CJM’s second cousin, who I will refer to as such in this decision, has lived interstate for close to sixty years but has remained in touch with CJM and visits her several times a year. Often she and CJM would be accompanied by CJM’s cousins who live locally.

  2. After the applicant and her husband moved in, CJM’s second cousin found that there would be nothing to eat in the unit for breakfast and that the unit would be untidy and smelly. Often CJM’s clothes were smelly too. Before the applicant and her husband moved in, the unit was kept in good order:

Sometime after [the applicant and her husband] moved in, I noticed on my visits that [CJM] did not have any bed sheets on her bed or in her cupboard. I bought her at least three sets of new sheets. I recall two sets were blue. However, they went missing too. Until [the applicant and her husband] moved in, [CJM’s] bed was always made up with bed sheets. I don’t recall her ever saying to me she preferred to sleep without bed sheets….Since Reliant Health Care started looking after [her], her apartment is a comfortable place again to visit. I last visited [CJM] in August 2015…and have booked a flight to Sydney for November 10….I last spoke to her on 21 October 2015.., In July 2014 about a dozen family members gathered to celebrate her..birthday…[CJM] has not mentioned [the applicant] since her eviction from the apartment.

  1. She described caring for CJM in 2013 when the applicant and her husband travelled overseas for 3 weeks. The applicant’s son had agreed to look after CJM but after a week were unable to because CJM had had a fall and the daughter-in-law could not manage looking after CJM together with her own young children.

The applicant

  1. The applicant stated that she lived at CJM’s unit from 2003 to 29 July 2015. Her late husband lived there, too, until his death on 1 July 2014. She agreed that her late husband had been declared bankrupt in 2003 and that he and the applicant had lived rent-free with CJM for twelve years. The applicant told the Tribunal that she had cooked and washed for CJM but that she and her husband had not paid for utilities. She agreed that her son and his family had leased the other unit in the block owned by CJM for $500 a week. This had been paid in cash.

  2. According to the applicant:

Since just prior to the death of my late husband I had been receiving letters from the respondent asking me to vacate the premises, but my solicitor had replied to those letters and I believed that the respondent had consulted with [CJM] and that I should stay with her.

On 29th July 2015 I went home after work…and found that the locks had been changed and the representative of the respondent would not answer the door. When I buzzed after I found the locks had been changed the carer in the premises just hung up the intercom.

  1. Documents contained on the respondent’s tender bundle include correspondence between the respondent and the applicant’s solicitors in relation to the request to vacate the premises.

  2. According to the applicant, CJM lived very frugally:

She had no interest in her clothing and she always slept without sheets on her bed. She used a tablecloth type cover in the summer for her bed and a doona in the winter, but did not ever use sheets. When I tried to make up her bed with sheets she said ‘It looks very nice but don’t do it again, I have always slept like that since I was a baby.’ When we arrived to live there, the mattress she was using was very stained and looked very old. It had a big dent in the middle where she slept. My husband purchased a new mattress for him, but she still refused to use sheets. All her linen and towels were full of holes when we arrived and we replaced them all.

  1. The applicant told the Tribunal that CJM never wanted anyone – even the cleaners – to enter her bedroom.

  2. The applicant stated that she was not advised of the decision to lock her out of the apartment until 4 August 2015 when a letter arrived at the salon that had been wrongly addressed. This meant that the applicant had no notice that she was to be locked out on 29 July and no chance to either pack her possessions or explain to CJM the reason for her leaving.

  3. Documents contained on the respondent’s tender bundle confirm that a copy of the decision dated 27 July 2015 to deny the applicant access to CJM’s apartment was wrongly addressed and did not reach the applicant until the locks to the apartment had been changed and she had been denied access to the apartment. There is no evidence that a copy of the decision was sent to the applicant’s solicitors with whom the respondent had been corresponding.

  4. According to the applicant:

My husband..had known CJM all his life and she always said to me ‘He is like a son to me.’ Between 2003 and the time that the respondent took charge of [her] affairs, we took [CJM] with us everywhere and included her in all our activities. We cooked and cleaned for her, we drove her around after she lost her licence, shopped for her and cared for her and helped her manage her life. We have also given her a social life and taken her out with friends and family. We loved doing this as we loved [her].

[CJM] asked us to live with her. She said we were a substitute for the family we did not have. She may have some memory loss now, but was of very sound mind when the arrangement. At the time we moved in [CJM] was in her seventies and still maintaining an active life.

  1. The applicant disputes that Reliant Health Care commenced looking after [CJM] on 28 April 2014.

On 29th April there were no carers in the home and [my husband] and I were called to collect [CJM] from the hospital after her fall in the supermarket the week before. We took her home from the hospital, but first took her to see [the doctor]. [My husband] and I took her to dinner after that we then went home with her. It was the next day that [my husband] became very ill and was taken at St Vincent’s Hospital. He stayed in hospital for 3 weeks and then spent one week at home. On 23th of May he went back to hospital and remained in hospital and the hospice.. for the rest of his life until he died on 1 July 2014.

  1. A medical report dated 18 June 2014 confirms the cancer diagnosis for the applicant’s husband and provides an estimated probable life expectancy of less than two months.

  2. The applicant stated that:

On 30th April 2014, I had to leave [CJM] at home alone so that I could be with my husband in the hospital. I went back a couple of times during the day and left the phone next to [the CJM’s] bed so that she could call me if she needed me….On the same day the bus driver had telephone to find out why she wasn’t waiting for her bus outing and she said ‘help help I’m ill.’ I believe that thought it was me that was calling. I had left the telephone next to the bed so she could call me if she had a problem. The bus driver, I believe, took her back to St Vincent’s so she was there at the same time as my husband…From that time onward the respondent arranged to have two carers for [CJM] 24 hours per day. …In relation to allegations that I have kept [CJM] has always seen her cousin and I have always attempted to keep the two of them in touch. This was the only relative with which she had contact. She did have second cousins..She often said to me ‘I cared for them when they first arrived in Australia and as soon as I got on my feet they disappeared out of my life. You..are my family now.’

  1. The applicant admitted having smoked in the unit in her bedroom, but always with the door closed. She stated that she would wash and dry CJM’s clothes in the hair salon rather than in the unit. She agreed that CJM would sometimes have a problem with body odour because often she wouldn’t bathe. She denied that CJM lost weight whilst the applicant was living with her.

  2. The applicant agreed that she received letters from the Public Guardian telling her to vacate the unit but insisted that CJM wished her to stay. She also agreed that she had been upset with CJM’s carers after CJM’s medication was changed when she attended a new doctor and subsequently became ill. She denied upsetting CJM. She denied telling CJM not to let carers into the unit. She agreed telling CJM about the eviction notice the applicant had received. At the time she was living at the unit, the applicant disputed that CJM needed two carers.

  3. If the applicant were to be granted supervised access to CJM, the applicant would be prepared to meet any expenses incurred.

Guardian ad litem’s views

  1. On 14 October 2015, the guardian ad litem, Dr Ainsworth, visited CJM. Dr Ainsworth attempted to explain his role as guardian ad litem in these proceedings but was not satisfied that CJM understood his explanation. He spoke to CJM about her life and expressed the view that CJM’s long-term memory about her early life and adult career was excellent.

  2. When Dr Ainsworth spoke to CJM about the applicant, CJM told him that the applicant ‘had left her.’ According to Dr Ainsworth, CJM spoke warmly about the applicant and her husband and how they were family to her and how they lived in harmony with each other. When asked, CJM expressed a firm desire to see the applicant.

  3. Dr Ainsworth queries whether CJM saw the sharing of her unit by the applicant and her late husband as a commercial arrangement with the applicant and her late husband being tenants. According to Dr Ainsworth, it is just as likely to have been a satisfactory arrangement between people who had known each other for a significant period of time. Dr Ainsworth suggests that the Public Guardian’s treatment of the applicant as a tenant may well be a mis-categorisation of her status.

  4. Dr Ainsworth accepts that the Public Guardian has the power to deny the applicant access to CJM but suggests that the conditions giving rise to the denial of the access order no longer exist. This is because the applicant no longer resides in CJM’s apartment and is no longer in a position to communicate her views about the role of the Public Guardian, the quality of the services provided by Reliant Healthcare and their staff carers to CJM. It is for these reasons that Dr Ainsworth believes that the issue of access should have become a matter for negotiation and that the Public Guardian should have agreed to enter into such a negotiation.

  5. According to Dr Ainsworth:

It is hard to believe that when the NSW Parliament passed the Guardianship Act 1987 that the power this bestowed on the Public Guardian would be used to deny access between two persons (one very elderly) who had resided together since 2003, a period of more than 10 years. This is regardless of the judgement, legal and moral, made by others as to the nature and quality of this relationship.

  1. Dr Ainsworth’s recommendations are as follows:

  • that access be granted against strict written terms signed by all parties;

  • that access to be limited to 2 hours once per fortnight at a time that takes account of CJM’s poor health;

  • that the applicant must not talk to CJM about the role of the Public Guardian, the quality of services provided by Reliant Healthcare and their staff carers or the Tribunal hearings. Dr Ainsworth suggests that old memories should suffice;

  • that the applicant not bring any gifts including food for CJM;

  • that access be supervised by a person nominated by the Public Guardian or Reliant Healthcare and agreed to be the applicant. The role of the supervisor is to monitor the interaction between the applicant and CJM and is authorised to ask the applicant to leave immediately should any of the agreed arrangements be breached.

Consideration of the evidence

Power to make access decision

  1. It is common ground that CJM has been a person subject to a guardianship order under the Guardianship Act since 31 May 2012 and that the Public Guardian has been her guardian since then. It is also common ground that on 7 May 2014, orders were made to extend the functions of the Public Guardian to accommodation, health care, medical/dental consent and services. It is again common ground that these orders were varied on 27 June 2014 to extend to access.

  2. It is also accepted that the letter to the applicant informing her of the decision to lock her out of CJM’s apartment was wrongly addressed and did not reach the applicant until 4 August 2015, well after the locks had been changed to the apartment. It is unfortunate that the letter was wrongly addressed. It is also unfortunate that a copy of this decision does not appear to have been sent to the applicant’s solicitors, which whom the Public Guardian had been in contact since 2014.

  3. Despite this, I accept that the failure to serve the notification of the access decision before the lockout does not invalidate the access decision (see s48(3) of the Administrative Decisions Review Act)

  4. I accept that in conducting this view, the Tribunal stands in the shoes of the decision maker and that the Tribunal is limited to making a decision about access.

Whether CJM’s wishes should be taken into account

  1. According to the Public Guardian, CJM’s medical conditions and her advanced and ongoing state of ill health make it inappropriate in all the circumstances to place a considerable amount of weight on her wishes. It is the Public Guardian’s further submission that it would be unreasonable and counterproductive to protecting CJM’s interests to place weight on her views regarding the access decision.

  2. Despite these submissions, it is common ground that CJM and the applicant have known each other for many years and lived together in CJM’s apartment from 2003 to 29 July 2015. In his submissions, Mr Higgins for the Public Guardian refers to the decision of the Guardianship Tribunal (as it then was) on 7 May 2014. In a decision granting the Public Guardian authority to make decisions for CJM concerning her accommodation, health care, medical and dental treatment, the Guardianship Tribunal found that the evidence showed that the applicant and her late husband were good friends of CJM and provided her with company.

  3. The Public Guardian also concedes that CJM has on occasion asked about the applicant’s whereabouts.

  4. In light of the evidence about CJM’s cognitive impairment and the evidence provided by Ms Cohen in relation to the drafting of CJM’s statement dated 5 June 2014, I have placed no weight on CJM’s statement.

  5. Instead I have relied on the evidence of Dr Beveridge, Ms Baulderstone, the applicant’s friend and the hairdresser to find that CJM has viewed her relationship with the applicant to be a good one and that the two women have a longstanding friendship.

The applicant’s behaviour

  1. It is common ground that on 28 May 2014, the Public Guardian sent a letter to the applicant and her late husband giving them notice to vacate the property. I accept the applicant’s evidence that her husband became ill in late April 2014. It is uncontested that the applicant’s late husband was subsequently diagnosed with terminal cancer, as set out in the letter from his treating oncologist dated 18 June 2014, which is contained in the Public Guardian’s tender bundle. This tender bundle also contains correspondence between the applicant’s solicitors and the Public Guardian’s solicitor in relation to the request by the Public Guardian for the applicant to vacate CJM’s premises.

  2. On the evidence before me, I accept that the applicant was never a carer of CDJ and never made medical decisions for her. Rather, I agree with the findings of the Guardianship Tribunal that she was a friend to CDJ who provided her with company.

  3. I agree that on 22 May 2014, 23 May 2014, 30 May 2014, 2 June 2014, 4 June 2014, 6 June 2014, 7 June 2014, 14 June 2014, 15 June 2014 and 7 October 2014 notes taken by CJM’s carers refer to events involving the applicant that are said to have agitated and distressed CJM.

  4. The evidence reveals that between April and June 2014, the applicant was caring for her terminally ill husband whilst running the couple’s hairdressing salon, checking on CJM’s welfare and seeking legal advice in relation to her eviction notice. By October 2014, the applicant’s husband had been dead for just over three months.

  5. In his submission as to the exploitation and neglect of CJM by the applicant and her late husband, Mr Higgins for the Public Guardian relies on the reasons for decision as to the access decision dated 27 July 2015. In part these reasons read as follows:

A pattern of financial exploitation [was] documented from 2012 including [the applicant’s late husband’s] attempts at seizing control of [CJM’s] finances; [the applicant’s son] living in [CJM’s] adjacent [apartment] with no evidence that he paid rent during this period; and a bathroom renovation initiated by [the applicant and her late husband] in the premises and paid for by [CJM] to an unsatisfactory manner.

  1. Other concerns relate to CJM’s malnourishment and dehydration on presentation to hospital, the absence of bed linen for CJM and CJM’s poor hygiene. These concerns reveal that the applicant was ill-equipped to be the carer for such an elderly woman who, as it transpires, required 24-hour care. The Guardianship Tribunal did not accept that the applicant had been a carer for CJM and the applicant is not claiming that she should be her carer. She is simply submitting that she is a longstanding friend of CJM.

  1. Further concerns were raised in relation to the applicant smoking in the premises, Reliant Health Care having to appoint more staff to manage the applicant’s behaviour and the applicant agitating and distressing CJM over the costs associated with her care and medical treatment.

  2. The examples as to exploitation of CJM seem focused not on the applicant but rather her late husband and her son (who lived in the adjacent flat). The applicant is included in criticism of the bathroom renovation but there is no evidence that the problems with its construction can be attributed to her. There is no evidence that the applicant abused her position in living with CJM and no evidence that she was considered by CJM to be a tenant rather than simply a friend who had been living with her since 2003. There is no evidence that in 2003, when the applicant and her late husband moved in with CJM, that CJM had a cognitive disability such that she was unable to access the consequences of offering rent-free accommodation.

  3. It has now been almost 18 months since the applicant’s late husband died and almost six months since the eviction. I agree with Dr Ainsworth that the circumstances giving rise to the eviction have now disappeared and the situation is quite changed: CJM has 24-hour care, the applicant is residing elsewhere and appears to be continuing to manage her hair salon.

  4. The applicant has submitted that she accepts that CJM has a cognitive disability. She simply wants to be able to continue a friendship with CJM at some level, at some time.

  5. Dr Beveridge has given evidence that the applicant’s ‘tirade is like a maelstrom that is a problem for [CJM] no matter how the contact occurs.’ He gave evidence that he doesn’t believe this can be controlled and that he cannot envisage the applicant changing her personality.

  6. It is common ground that Dr Beveridge is a physician in geriatric medicine. Whilst he is CJM’s treating doctor, he has never treated the applicant and has met her only on one occasion in 2012. Given that Dr Beveridge has never been asked to review the applicant or to provide a report on her, and his knowledge of her, it seems, is limited to those documents relevant to these proceedings, I have given limited weight to his opinion that the applicant is incapable of change.

  7. On the evidence before me and given the changed circumstances, I do not agree with the Public Guardian’s submission that there remains a possibility that allowing the applicant to have access to CJM may lead to CJM’s exploitation. I note the acceptance by the Public Guardian that, as a consequence of the operation of the financial management order made on 31 May 2012, the risk of financial exploitation of CJM no longer arises.

  8. On the evidence before me, I am satisfied that, given these changed circumstances, the applicant can be relied upon not to upset CJM during any visits to her.

The Welfare and Interests of CJM

  1. It is accepted that the primary object and purpose of the Guardianship Act is to protect the interests and welfare of CJM.

  2. I accept that in light of her medical conditions, CJM requires the 24-hour care that is being provided to her by Reliant Health Care by her. I accept the evidence of CJM’s second cousin that Reliant Health Care have ensured that CJM’s apartment is a comfortable place to be.

  3. I accept that due to her medical condition and the fact that CJM’s apartment is up stairs, she is house bound. I accept that the carers occupy CJM by playing scrabble with her and that a previous Italian-speaking carer would converse with CJM in Italian. I accept that CJM’s second cousin, who lives interstate, visits CJM when she can and that CJM’s cousins who live locally also visit her.

  4. I am satisfied that CJM has asked after the applicant and that for many years, she has enjoyed the company of the applicant, who, I accept, speaks both Spanish and Italian in addition to English.

  5. I accept the submissions by the guardian ad litem that the circumstances that existed at the time of the applicant’s eviction no longer apply. I also accept the submissions by the Public Guardian that as CJM is subject to a financial management order, she is not liable to financial exploitation. For the reasons set out above, I find that there is no evidence before me to show that the applicant has financially exploited CJM.

  6. I am satisfied that there is a long-standing friendship between CJM and the applicant. I accept that CJM has been asking for applicant and speaks of her warmly and fondly. It is my view that some contact with the applicant would be beneficial to CJM. In reaching this view, I have considered the need to protect CJM’s interests and welfare. I have also considered the other principles set out in section 4 of the Guardianship Act.

Supervision

  1. Although Ms Conroy told the Tribunal that she had no knowledge of any carers supervising access to their clients, there is evidence before the Tribunal that, for a period of time, Reliant Health Care placed two carers in the unit: one to care for CJM and the other to manage the behaviours of the applicant to prevent CJM becoming upset.

  2. Should Reliant Health Care or Public Guardian have any concerns in relation to visits to CJM by the applicant, it may be an option to have two carers rostered on during visits to CJM by the applicant. The applicant has offered to pay costs associated with any visits to CJM.

Recommendations for access

  1. For the reasons set out above, I find that the correct and preferable decision is that the decision of the Public Guardian to deny the applicant access to CJM for a period of six months should be varied as follows:

For a period of three months from the date of this order, the applicant should be granted access to CJM for a two-hour visit each fortnight at a time when CJM is not otherwise precluded from receiving visitors.

This is contingent upon the applicant providing a written undertaking to the Public Guardian that:

  • she will not talk to CJM about the role of the Public Guardian, the quality of services provided by Reliant Health Care and their staff carers or the Tribunal hearings;

  • she will not bring any gifts including food for CJM;

  • she will not smoke in CJM’s apartment; and

  • she will leave quietly when asked to do so by CJM’s carers.

Order

  1. The decision of the Public Guardian dated 27 July 2015 to deny all access by the applicant to CJM is varied to the following:

For a period of three months from the date of this order, the applicant should be granted access to CJM for a two-hour visit each fortnight at a time when CJM is not otherwise precluded from receiving visitors.

This is contingent upon the applicant providing a written undertaking to the Public Guardian that:

  • she will not talk to CJM about the role of the Public Guardian, the quality of services provided by Reliant Health Care and their staff carers or the Tribunal hearings;

  • she will not bring any gifts including food for CJM;

  • she will not smoke in CJM’s apartment; and

  • she will leave quietly when asked to do so by CJM’s carers.

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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: 30 December 2015

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Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation [1963] HCA 41
P v NSW Trustee and Guardian [2015] NSWSC 579