CKL v Public Guardian

[2016] NSWCATAD 216

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	CKL v Public Guardian [2016] NSWCATAD 216
Hearing dates:	27 April 2016, 3 August 2016
Date of orders:	29 September 2016
Decision date:	29 September 2016
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	J Anderson, Senior Member
Decision:	The decision of the Public Guardian is affirmed
Catchwords:	ADMINISTRATIVE LAW – person under guardianship - review of decision of Public Guardian that person be accommodated with a family member – correct and preferable decision – welfare and interests of person to be given paramount consideration
Legislation Cited:	Guardianship Act 1987 (NSW) Guardianship Regulation 2010 (NSW) Civil and Administrative Tribunal Act 2013 (NSW)
Cases Cited:	Drake v Minister of Immigration and Ethnic Affairs (1970) 2 ALD 60
Category:	Principal judgment
Parties:	CKL (Applicant) CSP (Joined Party) Public Guardian (Respondent) CSQ (Joined Party) CST (Joined Party)
Representation:	M Neville (Respondent) Solicitors: CKL (Applicant) CSP (In person) CSQ (In person) CST (In person) Crown Solicitor’s Office (Respondent)
File Number(s):	1610052
Publication restriction:	Section 64 of the Civil and Administrative Tribunal Act 2013 applies.

REASONS FOR DECISION

1. The person under guardianship, Mr OS, is a 71 year old man who has cognitive impairment as a result of chronic alcoholism. He is separated from his wife, Mrs S, and has five adult children, Mr CSQ, Dr CSP, Mr CST, Ms FS and Mr CKL, the latter of whom is the applicant in these proceedings.

2. On 1 October 2015 in its Guardianship Division, the Tribunal made a guardianship order, appointing Mr CSQ, the Applicant and Dr CSP and the Public Guardian as the guardians of Mr OS with separate functions. Mr CSQ, the Applicant and Dr CSP were appointed jointly as guardians with the authority to make decisions about Mr OS’ health care, medical and dental treatment and the services he should receive. The Public Guardian was appointed as guardian with the authority to make decisions about Mr OS’ accommodation, including the exercise of a coercive power.

3. In November 2015, the Public Guardian made a decision with respect to Mr OS’ accommodation, namely, that Mr OS reside with his son, Mr CSQ, in the home of Mr CSQ and his family.

4. On 3 December 2015, the Applicant sought an internal review of the Public Guardian’s decision, and on 24 December 2015, the original decision of the Public Guardian was upheld on review.

5. On 25 January 2016, the Applicant submitted an application to the Administrative Review and Equal Opportunity Division of this Tribunal, seeking review of the Public Guardian’s decision.

6. The application was listed for hearing on 27 April 2016. On that occasion, the Tribunal joined Dr CSP as a party to the proceedings. The Tribunal heard evidence, and on the application of the Respondent, the hearing was adjourned to enable further evidence to be obtained and to invite Mr CSQ to be joined as a party to the proceedings.

7. On 24 May 2016, at a directions hearing, Mr CSQ and Mr CST were joined as parties to the proceedings, and orders were made for the filing and serving of evidence.

8. On 3 August 2016, the matter was listed for hearing. On that occasion, the Applicant, Dr CSP, Mr CSQ and Mr CST attended and participated in the proceedings.

9. It is noted that Mr OS has a spouse, Mrs S. However, they are separated and living apart. Mr OS has a prior conviction for the assault of Mrs S and is subject to a good behaviour bond. In addition, there is an apprehended violence order in place which places restrictions on Mr OS’ ability to approach Mrs S. Mrs S attended the Tribunal hearing on 3 August 2016. She did not seek to be joined as a party, nor did she wish to give evidence during the hearing. She made a brief submission which is referred to in later paragraphs of these Reasons.

10. Mr OS did not participate in the proceedings on 27 April 2016. However, during the latter stages of the proceedings on 3 August 2016, Mr OS attended the hearing and an Arabic interpreter was made available to assist him. Mr OS did not wish to give evidence but made brief submissions which are referred to in later paragraphs of these Reasons.

LEGAL FRAMEWORK

11. Section 80A of the Guardianship Act 1987 (“the Guardianship Act”) provides for the application for review of decisions made by the Public Guardian, as follows:

80A Administrative review by Civil and Administrative Tribunal of guardianship decisions of Public Guardian

(1) An application may be made to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of a decision of the Public Guardian that:

(a) is made in connection with the exercise of the Public Guardian’s functions under this Act as a guardian, and

(b) is of a class of decision prescribed by the regulations for the purposes of this section.

(2) An application under this section may be made by:

(a) the person to whom the decision relates, or

(b) the spouse of the person, or

(c) the person who has the care of the person to whom the decision relates, or

(d) any other person whose interests are, in the opinion of the Civil and Administrative Tribunal, adversely affected by the decision.

12. The Guardianship Regulation 2010 provides in clause 17, that, for the purposes of s 80A(1)(b) of the Guardianship Act, all decisions made by the Public Guardian in connection with the exercise of the Public Guardian’s functions under that Act as a guardian are prescribed.

13. A person has standing to make an application for review of the Public Guardian’s decision if the Tribunal is satisfied that the person’s interests are adversely affected by such decision.  (Guardianship Act 1987, s 80A (2) (d)). In this matter, the Tribunal was satisfied that the Applicant, as a son and guardian of Mr OS, is a person whose interests are adversely affected by the decision of the Public Guardian.

14. The role of the Tribunal is to decide what the correct and preferable decision is having regard to all of the material before it, including any relevant factual material which may not have been before the Public Guardian. (Administrative Decisions Review Act 1997, s 63).

15. In this matter, the issue is whether the Public Guardian’s decision that Mr OS reside with Mr CSQ is the correct and preferable decision. The Applicant and Dr CSP contend that the correct and preferable decision is that their father should reside in supported accommodation, namely, a hostel.

16. 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).

17. The guardianship jurisdiction is protective, and the Tribunal is required to give paramount consideration to the welfare and interests of persons with disabilities. Section 4 of theGuardianship Act provides for principles which every person exercising functions under that Act must observe. It provides as follows:

4 General principles

It is the duty of everyone exercising functions under this Act with respect to persons who have disabilities to observe the following principles:

(a) the welfare and interests of such persons should be given paramount consideration,

(b) the freedom of decision and freedom of action of such persons should be restricted as little as possible,

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

(d) the views of such persons in relation to the exercise of those functions should be taken into consideration,

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

(f) such persons should be encouraged, as far as possible, to be self-reliant in matters relating to their personal, domestic and financial affairs,

(g) such persons should be protected from neglect, abuse and exploitation,

(h) the community should be encouraged to apply and promote these principles.

Practice and procedure

18. The guiding principle to be applied to practice and procedure in the Tribunal “is to facilitate the just, quick and cheap resolution of the real issues in the proceedings” consistent with the objects and principles under the Act. (Civil and Administrative Tribunal Act 2013, s 36).

19. The Tribunal may determine its own procedure in relation to any matter for which the Civil and Administrative Tribunal Act, or the Civil and Administrative Rules 2014 do not otherwise make provision. The Tribunal is not bound by the rules of evidence, except in relation to privileged disclosures (Evidence Act 1995, s 128) and is to act with as little formality as the circumstances permit to appropriately determine matters without regard to technicalities or legal form. (Civil and Administrative Tribunal Act, s38 and s 67).

The evidence

20. The Applicant tendered into evidence his application, including a written statement and a copy of the Public Guardian’s decision. The Applicant also tendered into evidence a bundle of documents received by the Tribunal on 15 March 2016 enclosing email correspondence by Dr CSP, a chronology of events, and hospital discharge summaries. During the proceedings, the Applicant and Dr CSP sought to tender a CD recording of a Guardianship Division hearing on 16 February 2016 as evidence of a statement made by Mr OS during the course of that hearing. A transcript of the hearing was produced by the Respondent and was distributed to the parties. As there was no dispute that Mr OS made a statement as alleged by the Applicant and Dr CSP (and noting that there was no other basis for the recording’s tender), the Tribunal declined to admit the CD recording into evidence.

21. The Respondent tendered documents comprising Guardianship Division orders and Reasons for Decision, correspondence between the Public Guardian and other persons, and various health professional reports, assessments and summaries.

Chronology of events

22. Mr OS migrated to Australia from Lebanon. At various times he has lived with his wife. He has also lived previously with his son, Mr CSQ, for a 2-year period. As well, Mr OS has had periods of homelessness and transiency, during which he has stayed in the homes of his children or slept rough in the community. Due to serious issues associated with his chronic alcohol abuse, Mr OS has had contact with the criminal justice system, including for the assault of his wife and associated apprehended violence orders. Mr OS has had multiple presentations to hospital in the context of his alcohol use and related conditions including pancreatitis and hypertension.

23. In August 2015, Mr OS was sleeping rough in a park. He sustained fractures to his hip and wrist as a result of falling and was admitted to hospital. During his admission various tests and assessments were carried out, and it was determined that Mr OS had cognitive impairment and lacked decision-making capacity. On 8 September 2015, an application to the Guardianship Division of the Tribunal was made by Mr CSQ for the appointment of a guardian and financial manager for Mr OS.

24. On 22 September 2015, Mr OS absconded from hospital and went to the home of his son, Mr CSQ. Mr OS was brought back to hospital after Mr CSQ contacted the police.

25. On 1 October 2015, the Guardianship Division of the Tribunal made a guardianship order in respect of Mr OS, appointing Mr CSQ, the Applicant, Dr CSP and the Public Guardian as the guardians of Mr OS with separate functions. Mr CSQ, the Applicant and Dr CSP were appointed as guardians with the authority to make decisions about Mr OS’ health care, medical and dental treatment and the services he should receive. The Tribunal appointed the Public Guardian with the authority to make decisions about Mr OS’ accommodation. On that date, the Tribunal also made a financial management order appointing Mr CSQ, the Applicant and Dr CSP as their father’s joint financial managers.

26. On 29 October 2015, the Public Guardian requested the hospital’s treating team undertake various actions, namely, to provide an occupational therapy assessment, a health status report and an accommodation proposal in respect of Mr OS.

27. An occupational therapy assessment was subsequently conducted which concluded that Mr OS was able to function safely and would be able to return to the community and to a home environment.

28. On 5 November 2015, the hospital social worker involved in Mr OS’ admission informed the Public Guardian that the hospital’s treating team was in support of Mr OS being discharged to, and accommodated in, Mr CSQ’ home. The team was of the view that this plan was consistent with Mr OS’ expressed wish, and was considered by the team to be appropriate to meet Mr OS’ care needs. In particular, Mr CSQ had advised that he could provide accommodation for his father indefinitely; that his father had yet to consume alcohol in front of the grandchildren; that all of the siblings would have access to their father; and that the father had expressed a wish to live with Mr CSQ and not enter into an aged care facility. It was noted that some of Mr OS’ other children were opposed to this plan.

29. On 9 November 2015, a family meeting was convened by the hospital social worker. During the meeting, Mr CSQ indicated that he wished for his father to live with him in his home. His siblings suggested an arrangement whereby the care of their father was shared between the siblings, or alternatively that their father was placed in hostel accommodation. The siblings were advised that if they wanted any alternate options to be considered, their views should be provided in writing.

30. On 9 November 2015, Dr CSP and the Applicant contacted the Public Guardian in relation to the proposal, expressing concerns about their father being at risk of falls and of absconding from Mr CSQ’s property. The Applicant claimed that previous trials (of their father living with Mr CSQ) had been unsuccessful, and the Applicant held concerns about Mr CSQ’ ability to care for their father in light of Mr CSQ’ large family and work commitments. The Applicant told the Public Guardian that the situation with their father was exhausting the family and causing tension.

31. On 9 November 2015, the Public Guardian informed the treating team that Mr OS should not be discharged from hospital until an assessment could be conducted by the Aged Care Assessment Team (ACAT). The Public Guardian also spoke to Mr OS about his wishes. Mr OS said that he was most comfortable and safe living with Mr CSQ, and expressed agreement to having services in place to provide Mr CSQ with respite.

32. On 11 November 2015, an ACAT assessment approved Mr OS for permanent residential care, high level respite care, and a level 1 and 2 home care package.

33. On 11 November 2015, the Applicant and Dr CSP had further contact with the Public Guardian, again expressing concerns about the accommodation proposal. In particular, the Applicant referred to the impact the decision would have on the family and that Mr CSQ would limit his access to his father. Dr CSP expressed concern that the father would be residing in a shed separated from Mr CSQ’s house on an unsecured property surrounded by bushland.

34. The Public Guardian contacted the treating team requesting a home visit be conducted of Mr CSQ’s property. However, this was declined by the occupational therapist who advised that there was an insufficient basis for a home visit. [On 13 November 2015, the occupational therapist wrote to the Public Guardian advising that Mr OS’ current function meets the needs of the environment proposed for the discharge destination (Mr CSQ’s property), and stated “From my observations of Mr (OS) there have been no concerns, and nil physical issues from Occupational Therapy that identify the need for a home visit”. During the occupational therapist’s meeting with Mr OS on the same date, Mr OS expressed that he would like to return home with his son, Mr CSQ, and that he did not consider other options, including hostel accommodation, to be favourable The occupational therapist indicated that in discussion with Mr CSQ and his wife, there was agreement that the father would reside in their residence rather than in a separate residence on the property].

35. On 12 November 2015, Mr CST expressed his view to the Public Guardian that his father was best placed to live with Mr CSQ, and that living with family, rather than a residential care facility was a preferable option. On the same date, Mr CSQ indicated that he would not obstruct his siblings’ access to their father.

36. On 12 November 2015, a case conference was held at hospital attended by the Public Guardian, Mr OS, Mr CSQ and an Arabic interpreter. During the conference, Mr OS expressed his wish to live with Mr CSQ. Following the case conference, the Public Guardian recorded its decision that Mr OS be discharged to live with Mr CSQ. However, the Public Guardian noted consent (for Mr OS’ discharge from hospital to the home of Mr CSQ) was not to be provided until its Reasons For Decision were completed upon the Public Guardian’s return on 18 November 2015.

37. On 17 November 2015, the father absconded from hospital and was located on 19 November 2015 at the home of Mr CSQ. The father indicated a refusal to return to hospital and insisted that he remain with Mr CSQ.

38. On 19 November 2015, the Public Guardian informed Mr CSQ of the Public Guardian’s decision in relation to the accommodation proposal for Mr OS to be discharged to his (Mr CSQ’s) home. The Public Guardian confirmed to Mr CSQ that the Public Guardian provides consent for Mr OS to live with Mr CSQ on a permanent basis, and that family members will be advised in writing accordingly.

39. On 25 November 2015, the Applicant contacted the Public Guardian expressing concern about the Public Guardian’s decision to permit the father to live with Mr CSQ. By letter dated 27 November 2015, the Applicant sought an internal review of the Public Guardian’s decision.

40. On 24 December 2015, the Public Guardian upheld the original decision on review.

41. On 21 January 2016, Dr CSP wrote to the Public Guardian indicating the father had been sighted in public consuming large amounts of alcohol. Dr CSP expressed concern about his father’s health, including the risk of falls and the current weather conditions.

42. On 22 January 2016, the Public Guardian contacted Mr CSQ who stated his father had not consumed alcohol since being discharged to his home, and denied that his father had been consuming alcohol in public. The Public Guardian was informed that a home care package had not yet been instituted for Mr CSQ. During a conversation with Mr OS on the same date, Mr OS denied being intoxicated.

43. On 10 February 2016, the Public Guardian contacted Mr CSQ in relation to the home care package. Mr CSQ advised that an agency he contacted had said that home care was not necessary. The Public Guardian told Mr CSQ that a home care package was an important component of the approved accommodation model and further inquiries would be made.

44. On 11 February 2016, the Public Guardian arranged for a referral for home care services for Mr OS through a service provider agency.

45. On 16 February 2016, a hearing was held in the Guardianship Division of the Tribunal to review the financial management order in respect of Mr OS. On that date, the Tribunal revoked the appointment of Mr CSQ, Dr CSP and the Applicant as their father’s financial managers on the basis that they were unable to reach agreement on a plan for the management of the father’s estate. The NSW Trustee and Guardian was appointed as Mr OS’ financial manager. During the Tribunal hearing, Mr OS brought out amounts of cash he had on his person, claiming that he was spending his money (namely $10, $50 or $100) on alcohol.

46. On 17 February 2016, Dr CSP notified the Public Guardian that his father had disclosed during the Guardianship Division hearing that he was consuming alcohol from his pension payment.

22. On 18 February 2016, Mr OS was taken to hospital in the context of abdominal pain and vomiting. The hospital discharge summary indicates that Mr OS presented with severe epigastric pain on the background of recently prescribed medication to treat alcohol dependency (NSAIDs) and GORD symptoms.

23. Mr OS was subsequently discharged to Mr CSQ’s home.

24. On 31 March 2016, Ms H, a support advisor of a home care service provider conducted an assessment of Mr OS in Mr CSQ’s home. The assessment concluded that Mr OS was independent with all activities of daily living. In particular, Ms H reported that Mr OS was able to mobilise independently (including upstairs), and was able to attend to his personal care independently. Ms H further reported that Ms OS appeared to be very happy and was being adequately looked after by family. Social support was declined by Mr CSQ at that time on the basis that it was not needed as family were taking Mr OS on outings outside of the home.

25. On 31 March 2016, Mr CSQ advised the Public Guardian that the father was being reviewed at a drug and alcohol clinic and his next appointment was on 23 June 2016. Mr CSQ advised the Public Guardian that the reviews were monthly initially, however, they had reduced to 3-monthly on the basis that the treating doctor was happy with Mr OS’ progress. Mr CSQ advised his father was also seeing a counsellor in the local area on a weekly basis.

26. On 27 April 2016, the hearing of the application for review of the Public Guardian’s decision commenced, and was adjourned part-heard to 3 August 2016.

EVIDENCE AND SUBMISSIONS

52. Documents tendered by the Respondent included reports of Ms H, Uniting Care support adviser (undated), Mr Y, Psychologist dated 2 May 2016, Dr Y, Medical Officer from Liverpool Hospital dated 5 May 2016, and Dr SC, Physician and Psychotherapist specialising in Drug & Alcohol dependency dated 18 May 2016, and a report of Dr G, General Practitioner, dated 3 May 2016.

53. Ms H reports her service is currently providing 2 hours of support one day a week for Mr OS, but will soon be increasing to two days week. The support, which is primarily social support in his home, involves going for walks with Mr OS around the yard, feeding the animals (sheep, chicken and dogs), and planting and maintaining grapes and herbs. Ms H reports Mr OS is independent with his mobility, showering, making himself coffee and tidying his room. She states Mr OS is supported by his son and wife with meals as well as transportation to appointments, the Mosque and other places. Ms H has not observed any alcohol in the house, and Mr OS has told her that he does to want to live in any other accommodation.

54. Dr Y has reviewed Mr OS as an outpatient of the hospital on 4 occasions since Mr OS was discharged to Mr CSQ’s care in November 2015. From Dr Y’s observation, Mr OS has achieved complete abstinence of alcohol and has improved psychically and mentally under Mr CSQ’s supervision, which includes supervising Mr OS’ daily alcohol dependence medication.

55. Dr SC, who has been involved in managing Mr OS’ alcohol dependency for a number of years, opines that Mr OS would do very badly in a nursing home as a result of the cultural and language barriers. In addition, Dr SC states that there is no nursing home which targets drug or alcohol dependency and is able to provide specialised supervision.

56. Dr G is Mr OS’ treating general practitioner for more than 10 years. Dr G reports Mr OS has been attending for review on a regular basis and during that time he has expressed his satisfaction and happiness with the care provided by Mr CSQ.

57. Mr Y has been providing Mr OS with psychological treatment following referral by Dr G and in the context of a condition of Mr OS’ good behaviour bond. Mr Y reports Mr OS has presented with symptoms of psychological distress and anxiety related to the Tribunal proceedings and the risk of being required to live in an aged care facility. Mr Y states the Mr OS’ current residence with his son provides a number of protective factors for him, including family support, a relaxing environment on acreage, no access to alcohol, and regular opportunities for him to practise his faith with attendance at the Mosque and access to Arabic reading and viewing material.

58. During the Tribunal hearing on 27 April 2016 and 3 August 2016, the Applicant, Mr CST and Mr CSQ gave oral evidence. Mrs S, who is separated from Mr OS, attended the hearing but did not give evidence. However, she expressed to the Tribunal a view that Mr OS should come and live in her home. This was not a submission supported by either the Applicant or any of the other parties.

59. In the latter stages of the hearing on 3 August 2016, Mr OS arrived at the Tribunal venue. An Arabic interpreter was arranged to assist Mr OS. Mr OS did not wish to give evidence. However, he expressed strongly a wish to remain living with his son Mr CSQ, and not to live in a nursing home.

60. In his evidence, the Applicant said that previously he had a close relationship with his father, whom he saw regularly and assisted with care. However, since his father’s residence with Mr CSQ, they have had very limited contact. The last time the Applicant had contact with his father was in about February or March 2016 when he (the Applicant) was at his mother’s home. The Applicant understands that his father has expressed a wish not to have contact with him at the present time.

61. The Applicant said the family has been through a lot with their father due to their father’s alcohol use and related health issues. The Applicant said all of the family members were exhausted by their attempts to support their father over a long period of time, and during their father’s hospital admission in 2015, there was general agreement by the siblings that their father needed to be looked after by professionals 24 hours a day. The Applicant said that the agreed plan was that their father would enter into rehabilitation while appropriate supported accommodation was found for him. The Applicant and Dr CSP believe this agreement was reneged on by Mr CSQ. They are of the view that the burden of caring for their father should not be placed on any one family member. They say that their father has a history of absconding including while being cared for by Mr CSQ. The Applicant and Dr CSP claim that Mr CSQ’s property, which is located in a national park, is unsafe for their father and provides opportunities for him to abscond. The Applicant and Dr CSP assert that their father has been spending money on alcohol while living with Mr CSQ, as evidenced by their father’s admission during the Tribunal hearing on 16 February 2016. They further assert that their father’s presentation to hospital shortly afterwards was in the context of a relapse in his alcohol use.

62. The Applicant and Dr CSP submit that the Public Guardian’s decision to consent to their father living with Mr CSQ was contrary to the agreement reached by family members for their father to enter rehabilitation pending a hostel placement. They are of the view that the Public Guardian failed to properly take into account Mr OS’ problematic history, the extent of his cognitive impairment as indicated in the various professional reports, and the views of all of the family members. They further believe that the decision of the Public Guardian has had a detrimental impact on the family, causing division and tension, and has contributed to their lack of current contact with their father.

63. In their evidence and written submissions, the Applicant and Dr CSP expressed the view that their father requires 24-hour care. However, during the proceedings on 3 August 2016, the Applicant and Dr CSP confirmed that their father should be placed in a hostel, not a nursing home. There was some discussion about hostel accommodation which is understood to be low-level care accommodation. The Tribunal pointed out that such accommodation is generally not secure, and residents may be free to access the community. The Applicant and Dr CSP submit that “at least they (hostel management) would inform them” of their father’s whereabouts and well-being.

64. Mr CSQ and Mr CST gave evidence and were cross examined by Dr CSP. In his evidence, Mr CSQ said that he is self-employed and lives with his wife and six of his children in his own home. His property, which is on 5 acres, comprises a 7-8 bedroom house and another separate dwelling. His father, Mr OS, has been living with him since leaving hospital in November 2015. Mr CSQ said his father has the option of living in the separate dwelling or in the main house, but is mostly in the main house. Mr CSQ said his father is able to visit his mother subject to the conditions of the apprehended violence order which prevents Mr OS from approaching Mrs S within 12 hours of consuming alcohol. Mr CSQ said his father uses the telephone and talks regularly to his wife. Mr CSQ indicated that there are no restrictions preventing his siblings from having access to their father.

65. In cross examination, Mr CSQ admitted that in the early stages of discharge planning for their father one of the options proposed was that their father enter into long-term supported accommodation. However, Mr CSQ said it was the opinion of their father’s doctors that would determine the final decision. Mr CSQ was questioned about the 2-year period in which his father resided with him. Mr CSQ denied that the residency broke down in the context of their father re-commencing his drinking. Rather, Mr CSQ indicated that at the relevant time it was the opinion of their father’s treating doctor (Dr SC) that their father be given an opportunity to return to live with Mrs S in her home. According to Mr CSQ, he (Mr CSQ) expressed his concern to the doctor about the proposal, telling him that the situation would likely fail; with his mother taking out an apprehended violence order and their father becoming homeless. Mr CSQ stated that his father’s drinking only recommenced after his father left his home to return to live with their mother.

66. Mr CSQ acknowledged the statement made by their father during the Guardianship Division hearing on 16 February 2016, but denied that their father has consumed alcohol since he commenced living with him in November 2015. Mr CSQ further denied that their father’s admission to hospital shortly after the hearing was in the context of his father drinking alcohol. Rather, Mr CSQ said that he had taken his father to the GP and to the hospital as his father had stomach pain and he (Mr CSQ) was worried about him. Mr CSQ also indicated that during every fortnightly visit to Dr Y, their father is asked whether he is drinking. Mr CSQ denied that caring for their father is an excessive burden.

67. Mr CSQ does not support the view of the Applicant and Dr CSP that their father should live in a hostel.

68. Mr CST gave evidence and was cross-examined. Mr CST said that he and his family visit his father every two to three days, and sometimes take him out. In addition to visits, Mr CST speaks to his father on the telephone every day. Mr CST told the Tribunal that during the last 10 months his father has been the best he has ever seen him. Mr CST noted the absence of any of the previous issues associated with his father’s excessive drinking.

69. Mr CST submitted that a nursing home or hostel would be detrimental to their father, who speaks limited English and is of the Islamic faith. Mr CST said that if their father were to be placed in such accommodation, he would not be able to communicate with anyone and would be unlikely to “last a night”. Mr CST expressed the view that his brother, Mr CSQ, is doing an excellent job in caring for their father.

70. Counsel for the Public Guardian submits that the decision of the Public Guardian to allow Mr OS to reside on an ongoing basis with Mr CSQ was made on the basis that it accorded with the wishes of Mr OS, preserved his cultural and linguistic environment, represented the least restrictive option and recognised the importance of family relationships. Counsel for the Public Guardian further submits that the decision was made after close consultation with the hospital treating team and was informed by expert opinion, including aged care, social work and occupational therapy assessments. Counsel for the Public Guardian submits that the assessors’ conclusions (that Mr OS could live safely in the community if discharged into the care of Mr CSQ with the support of home care services) were validated by the home assessment conducted on 31 March 2016.

71. Counsel for the Public Guardian submits that all family members were consulted in the course of making the accommodation decision, and acknowledges that there were alternate options proposed and some opposition to the proposal that Mr OS live with Mr CSQ. Counsel for the Public Guardian submits that if Mr OS were to reside in a hostel where he can come and go as he pleases without supervision, this would expose Mr OS to the risks which have characterised Mr OS’ recent history, including excessive alcohol consumption and contact with the criminal justice system.

Conclusion and orders

72. The role of the Tribunal is to decide what the correct and preferable decision is having regard to all of the material before it, including any relevant material which may not have been before the Public Guardian at the time of making the decision. In determining this matter, the Tribunal took into account all of the evidence, both oral and documentary, the submissions of the parties and the principles set out in section 4 of the Guardianship Act.

73. It is evident that the person under guardianship, Mr OS, is loved deeply by his children, each of whom demonstrate a genuine care and concern for his welfare. The children of Mr OS have been exposed to many challenges in trying to support and care for their father, who has chronic alcohol dependency and associated health concerns, and who has been assessed as lacking capacity to make decisions in his best interests.

74. There is no dispute that Mr OS has expressed, both prior and subsequent to the Public Guardian’s decision, a wish to live with his son, Mr CSQ, in Mr CSQ’s home. Due to his cognitive impairment, Mr OS’ views are liable to change depending on the context, however, he has been consistent in his view that he does not wish to enter into a residential care facility. His views and his wishes to be restricted as little as possible accord, in particular, with principles (b), (c), (d) and (f) of section 4 of the Guardianship Act.

75. The alternative decision proposed by the Applicant and Dr CSP (that Mr OS should be accommodated in a hostel) is on the basis, inter alia, that this formed part of an agreement reached by family during Mr OS’ hospital admission in 2015. However, the fact that family members may have at one point in time agreed on a certain proposal is not necessarily material to the Tribunal’s determination. Whilst the Public Guardian (and the Tribunal in considering this application) must consider the importance of preserving family relationships, the fact is that the Public Guardian, not the family, was conferred the specific function of making a decision about where Mr OS should reside. Furthermore, the fact that Mr OS has cognitive impairment and is under guardianship does not in itself render him unable to live in the community. Indeed, the professional evidence, provided both before and after the decision of the Public Guardian, is consistent in its conclusion that Mr OS can be appropriately accommodated in Mr CSQ’s home.

76. In addition, there is no evidence to indicate that Mr CSQ is struggling to cope with the responsibility of providing care to his father. The care and supervision of Mr OS is shared by Mr CSQ’s family, home care services, and various health professionals. There is no evidence to indicate these arrangements are not operating in Mr OS’ best interests.

77. The Tribunal finds that there is insufficient evidence to establish that Mr OS has relapsed into alcohol use since his residence with Mr CSQ. Mr OS’ statement during the Guardianship Division hearing is not conclusive evidence of a relapse, particularly in circumstances where there is no specific reference to a relapse in any of the hospital documentation relating to Mr OS’ admission to hospital in February 2016, or in any of the reports of the health professionals currently involved in Mr OS’s treatment and care.

78. Moreover, even if it were the case that Mr OS has in fact consumed alcohol during this period, this would not render his current accommodation unsuitable and in need of change. Indeed, in the Tribunal’s view if Mr OS were living in hostel accommodation, he would have much greater freedom to access the community, and the consequent risk of relapse would be significantly greater. Having regard to principles (a) and (g) of section 4 of the Guardianship Act, the Tribunal was therefore not satisfied that Mr OS’ welfare and interests would be more appropriately protected, including from neglect, abuse and exploitation, if he were to live in hostel accommodation.

79. The Tribunal was satisfied that in living with Mr CSQ and his family, Mr OS is being afforded an opportunity to reside in an environment which is culturally and linguistically appropriate. He is able to speak his native language and practice his faith. Whilst the Tribunal notes the Applicant’s view that his father’s residence with Mr CSQ makes it very difficult and uncomfortable for him to have contact with his father, the Tribunal notes that there are no formal access restrictions in place, and Mr CSQ has undertaken not to prevent access by any of his other family members.

80. The Tribunal recognises that the decision for Mr OS to live with his son, Mr CSQ, is not supported by all of his family members. In this regard, the Tribunal has regard to the importance of preserving Mr OS’ family relationships. However, the Tribunal finds that the family division may well be present even if a different accommodation decision were to be made. Certainly, at the present time, a decision other than that he live with Mr CSQ would be opposed by Mr OS. In this regard, the Tribunal finds that there is likely to be a divergence of views held by Mr OS and his family members about alternative accommodation options, including that he live in a hostel.

81. It is evident to the Tribunal that the applicant and Dr CSP love and care deeply for their father and have a genuine concern for his welfare. Indeed, there is evidence that there was previous communication between all of Mr OS’ children, and that family issues and matters affecting Mr OS were able to be discussed together. It is hoped now that the application has been determined by the Tribunal there is an opportunity to restore relationships between Mr OS and all of his children in the future. It is also hoped that the Public Guardian will assist Mr OS and his family to facilitate and encourage regular and meaningful access to Mr OS, in his best interests.

82. The Tribunal notes that the Applicant and Dr CSP (together with Mr CSQ) are the guardians of their father with the authority to make decisions about their father’s health care, medical and dental treatment and services. This enables the Applicant and Dr CSP (and Mr CSQ) to liaise with the health professionals overseeing their father’s care, including the drug and alcohol specialists and the home care service provider, to obtain information about their father’s health and welfare, and to make decisions on his behalf when required.

ORDERS

83. The decision of the Public Guardian, made in November 2015, for Mr OS to reside with Mr CSQ in the home of Mr CSQ and his family is affirmed.

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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: 29 September 2016