CNQ v NSW Trustee and Guardian

[2017] NSWCATAD 32

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	CNQ v NSW Trustee and Guardian [2017] NSWCATAD 32
Hearing dates:	5 December 2016
Date of orders:	16 February 2017
Decision date:	16 February 2017
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	C Grant, Senior Member
Decision:	Decision by the NSW Trustee & Guardian that the protected person continue to reside in the Aged care facility is affirmed.
Catchwords:	GUARDIANSHIP – Decision as to appropriate care facility – decision affirmed
Legislation Cited:	Administrative Decisions Tribunal Act 1997 Guardianship Act 1987 Guardianship Regulations 2010
Category:	Principal judgment
Parties:	CNQ (Applicant) NSW Trustee & Guardian (First Respondent) RB (Second Respondent) RC (Third Respondent
Representation:	Solicitors: CNQ (Applicant in person) Crown Solicitors Office (First Respondent) RB (Second Respondent in person) RC (Third Respondent in person)
File Number(s):	1610435
Publication restriction:	Section 64 (1) Civil and Administrative Tribunal Act 2013 - Restriction on publication of information that will identify the applicant, any victims, witnesses or evidence given and received in this Tribunal hearing or in relation to the proceedings which is likely to identify those persons.

REASONS FOR DECISION

Introduction

1. This is an application by the daughter of the protected person to review a decision of the Public Guardian regarding accommodation. The protected person will in this decision be referred to as ‘the mother’ and the applicant daughter as ‘AB’. The mother has a disability being dementia and is under a Guardianship Order allocating functions including accommodation and health care to the Public Guardian. The mother has resided in an aged care facility located in Sydney since November 2014. This facility will be called ‘XYZ care facility’ in this decision. AB believed this facility was not providing quality care to the mother, who was deteriorating in her health. AB proposed alternative aged care facilities for the mother. On the 10 May 2016, the Public Guardian decided that the mother continue to live at XYZ care facility and this was affirmed on internal review on 17 June 2016. AB seeks a review of this decision. The Tribunal must decide in these proceedings whether this is the correct and preferable decision.

2. The second and third respondent in these proceedings are two of the other adult children of the mother and they will be referred in this decision as ‘RB’ and ‘RC’. Both RB and RC agree with the decision of the Public Guardian and oppose the application. The remaining two adult children also wish their mother to remain living at XYZ care facility and oppose the application.

Jurisdiction

3. The Tribunal has jurisdiction to hear and determine this matter under s80A of the Guardianship Act 1987 and cl. 17 of the Guardianship Regulations 2010 being a review of a decision ‘made in connection with the exercise of the Public Guardian’s functions’.

4. It is also not in dispute that the applicant, AB is eligible to make this application being a person adversely affected by the decision as set out in s80A(2)(d) of Guardianship Act 1987. That is, AB is the adult child of the protected person ‘the mother’, and is adversely affected by the decision as to where the mother is accommodated.

Background facts

5. In November 2014, the mother moved into XYZ care facility in Sydney. Her husband (and father to 5 adult children including AB, RB, RC) moved into an apartment attached to XYZ facility sometime after. In July 2015, the husband passed away

6. On 7 October 2015 a guardianship order relating to the mother was made allocating the functions of accommodation, health care and medical and dental care to the Public Guardian. The reasons for decision cited ‘sibling conflict’ requiring an independent decision maker. A Financial Management Order was also made appointing the two adult sons of the mother to be the joint financial guardians of the estate.

7. On 11 December 2015 the Public Guardian consented to the mother having a holiday with AB and her family at her home on the NSW Mid North Coast subject to conditions including 24/7 support and care. This holiday occurred on 21 to 27 December 2015 and the mother returned to reside at XYZ care facility in Sydney.

8. On 15 January 2016 AB complained that her mother had become more socially withdrawn and possibly depressed at XYZ care facility in Sydney and proposed to the Public Guardian that she be relocated to an alternative aged care facility. She proposed two aged care facilities located in the mid north coast of NSW near where she resides. This proposal was supported by the brother and sister-in-law of the mother.

9. On 23 February 2016 the Public Guardian consented to the mother moving from a shared room to a single room with half ensuite (toilet but no shower) in XYZ care facility.

10. On 10 May 2016 the Public Guardian considered AB’s application and decided that the mother should continue to live at XYZ care facility and on 20 June 2016 an internal review affirmed the decision.

11. On 18 July 2016 AB filed an application for administrative review. On 11 October 2016 RB and RC werer joined as second and third respondents opposing the application.

12. On 17 October 2016 the Guardianship Division extended the Guardianship Orders for a further period of 12 months.

Reasons for Guardian decision that mother remain at XYZ aged care facility

13. The Guardian provided the following reasons for its decision on 10 May 2016 that the mother continue to reside at XYZ care facility:

1. The mother is settled in XYZ care facility.

2. Relocating the mother is likely to cause her to be unsettled for a significant period of time.

3. The mother has a single room, which all family members agree is beneficial.

4. The mother is regularly visited by her immediate family at XYZ care facility and relocating her will impose significant impediments to those currently visiting on a regular basis

5. XYZ care facility is an accredited facility and staff appear to understand and respond to the mother’s support needs.

6. The mother’s geriatrician, Dr Hunter and GP, Dr Mouroukas speak highly of the XYZ care facility and the care they provide to residents.

In support of the Application

14. AB has provided detailed submissions dated 22 May 2016, emails, diary of telephone attendances and personal visits and photographs of the mother at home and during her visit at AB’s home in December 2015. She gave oral evidence.

15. The mother’s brother made a statement and gave evidence in support of the application. He will be referred to as ‘AC’ in this decision. The wife of AC and sister in law of the mother also made a statement and gave evidence in support of the application. She will be referred to as ‘AD’ in this decision. The husband of the applicant, AB also made a statement and gave evidence in support of the application. He will be referred to as ‘AE’ in this decision.

16. AB refers to the staff at XYZ not facilitating exercise and mobility including staff removing her mother’s walker. Whilst visiting XYZ she has observed her mother not being able to walk and showing signs of atrophy. AB refers to poor standard of hygiene including dirty nails, inadequate laundering and disorganised wardrobe. She also refers to a poor standard of dental hygiene.

17. AB disagrees with the views of Dr Hunter and Dr Maroukas and states they have only a ‘fleeting relationship’ with the mother.

18. AB provided a diary of her phone calls with staff at XYZ aged care and a diary of her discussions with staff and observations during visits regarding her mother’s state of health and her ongoing care. AB also provided photographs of her mother at XYZ and whilst staying with AB at her home in December 2015. Some photographs depicted her mother’s dirty nails, example of food served, a bruise on the mother’s arm and dirty linen.

19. In evidence AB stated that she has worked in the aged care industry as a carer for 16 months and has experience working with aged care residents in all levels of aged health care. She acknowledged that some homes are better than others. However, based on her experience she believes that XYZ does not offer quality care for her mother. She is disappointed with her siblings for not seeking a better alternative home for their mother.

20. AB provided information about two aged care facilities that she believed were superior facilities to XYZ and would provide the mother with better care and quality of life. Both facilities were on the NSW north coast, one being approximately 440km north of Sydney and the other being approximately 220km north of Sydney. Both facilities are closer to where AB resides and if the mother was relocated to either facility AB would be able to visit the mother more regularly. In her evidence AB also referred to another facility on the northern beaches where there is a vacancy and where the resident doctor has previously treated the mother. However, there is no further information provided about this facility.

21. The mother’s brother, AC is critical of XYZ and believes it is a facility that is focused on profits at the cost of quality care to its residents. He makes similar complaints to AB about the failure to encourage mobility, poor hygiene and a lack of tailored games and exercises. In his evidence, he acknowledged he had no evidence that the mother’s decline is due to her accommodation. He lives on the NSW north coast and has visited the mother at XYZ about 4 times a year.

22. The wife of AC and sister in law of the mother, AD is a medical doctor’ and disagrees with Dr Hunter and Dr Mouroukas. She believes that XYZ provides sub-standard care and refers to the mother’s weight loss, malnutrition, isolation and lack of exercise and programs. She refers to personal observations about poor care and hygiene and has made a complaint to the Aged Care Complaints Commissioner. In evidence, she agreed that she had no evidence to suggest the mother’s decline is caused by her care at XYZ care facility. She lives on the NSW north coast and has visited the mother about 4 or 5 times a year.

23. The husband of applicant AB, referred to ‘AE’ has similar concerns to AB, AC and AD about poor quality care at XYZ care facility. He has observed the mother on a few visits to XYZ refusing to eat her food. She has little access to sunlight and fresh air. He observed the mother and other residents as ‘sitting around on their own all day without any interaction or engagement with others’. He lives on the NSW north coast and has visited the mother about 5 times a year or every two to three months.

In Response to the Application

24. The Manager of XYZ care facility made a statement and gave oral evidence. She responded to the complaints about care at XYZ made by AB and believes XYZ offers good care. She has managed the mother’s care for the last 2 years. She has observed the mother declining physically over that time and this is consistent with her experience of patients with dementia. This includes not being able to walk unassisted. The mother does not have access to walking aids due to the high risk of falling. She provided information about the food at XYZ which is reviewed by a dietician and any likes/ dislikes are discussed with family members. She refers to available lifestyle activities that the mother may or may not participate in depending on her energy levels. She agrees there is no outside area but the mother can go out to the balcony when accompanied and can go on outings with family members which she has done. She has observed AB visit the mother on weekends but is not sure how regular her visits are. AB also telephones the facility to check on her mother every week. She has observed the other adult children visit the mother regularly during the week and the mother seems to enjoy these visits. She also indicated a willingness to have ongoing and open communication with all family members to resolve any complaints regarding the care of the mother.

25. The Assistant Public Guardian, Mr Theo Hastings provided a statement and gave oral evidence. He reviewed the original decision and confirmed the decision for the mother to remain at XYZ aged care facility. He referred to the treating doctor’s views that a relocation is likely to cause the mother some distress and disorientation for a period of 4 to 6 weeks. He also noted AB’s concerns about the care provided at XYZ was not shared by the other adult children and in his view did not justify the relocation and detrimental effect on the mother’s health and well-being.

Second and Third Respondents

26. The second Respondent, RB is one of the four adult children who opposes AB’s application. He provided a statement and gave oral evidence. He strongly differs in his opinion to AB regarding the mother’s physical capacity and her mental state of awareness and understanding. He believes his mother’s dementia is progressing and is relentless and terminal. He acknowledges the aged facility proposed by AB may offer superior services but his mother’s frailty and cognitive decline means she would not benefit from them. He has no complaints about the care at XYZ. Both his brother and himself visit his mother every one or two weeks and his sisters visit every week and moving his mother 600km away to another facility would mean less family visits.

27. The third Respondent, RC is another of the adult children who opposes AB’s application. She provided a statement. She is a nurse of 30 years. She disagrees with the complaints made by AB and believes her mother is receiving good care from XYZ. She visits her mother each week. She detailed her observations about the nutritious food, adequate staff levels, structured activities and that her mother has a good rapport with staff and seems comfortable in her own single room and at the facility.

Written material and submissions of the Public Guardian

28. There is no evidence to support AB’s claim that any decline in the health of the mother is due to her current accommodation and care.

29. The doctors treating the mother are supportive of the accommodation and its quality of care to patients. The physiotherapist states the main barrier to the mother’s treatment is her own resistance.

30. Concerns raised by AB about XYZ aged care facility are contrary to the observations and views of the 4 other adult children including RB and RC. They speak positively about the accommodation and believe the mother is receiving good care. The Public Guardian notes the mother receives visits from these 4 children at least once or twice a week and therefore they are in a good position to provide an opinion based on regular visits and observation. The Guardian submits that on balance the mother would be more likely to receive a greater number of family visits by remaining at XYZ care facility than if she were to be relocated to one of AB’s proposed facilities.

31. The alternative proposals cannot be properly assessed as there is insufficient information. It is based on one informal visit by AB and published advertising material which as promotional material is of very limited weight. There is also limited information on food provided, toileting arrangements and frequency of outings.

32. In the opinion of Consultant Psych geriatrician, Dr Hunter the relocation of the mother would cause her to experience ‘increased confusion’ for 4 to 6 weeks. It is noted that the doctor does say this is manageable if the relocation is necessary and then describes the consequences of the change in routine as ‘severe confusion, agitation and psychosis’. The Guardian submits that a period of 4 to 6 weeks of possible discomfort and ill-health is a significant period for a person with a terminal illness.

Consideration

33. The Tribunal is required to consider whether the decision by the Public Guardian that the mother remains at XYZ care facility, is the correct and preferable decision. The Tribunal must take into account all the material before it including all relevant factual information and the applicable written or unwritten law. (Administrative Decisions Review Act 1997 (NSW), s.63.

34. In making the decision the Tribunal must consider the following principals set out in s.4 of Guardianship Act 1987 (the Act):

1. the welfare and interests of such persons should be given paramount consideration,

2. the freedom of decision and freedom of action of such persons should be restricted as little as possible,

3. such persons should be encouraged, as far as possible, to live a normal life in the community,

4. the views of such persons in relation to the exercise of those functions should be taken into consideration,

5. the importance of preserving the family relationships and the cultural and linguistic environments of such persons should be recognised,

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

7. such persons should be protected from neglect, abuse and exploitation,

8. the community should be encouraged to apply and promote these principles.

35. Some of the above principals do not apply as the mother, due to her disability being dementia, lacks capacity to make decisions. However, a paramount consideration in making the decision is the welfare and interests of the mother (s.4(a) of the Act). AB believes the mother’s welfare and interests would be better served by relocating from XYZ care facility to an alternative care facility. This is on the basis that XYZ provides poor care and quality of life to the mother. This view is supported by 3 members of the extended family, AC, AD and AE. This view is contrasted with the 4 other children including RB and RC who say that XYZ provides good quality care and the mother is settled and happy and her welfare and interests are best served by remaining at XYZ. Both treating doctors are also of the view that XYZ provides good quality care to the mother.

36. The other relevant consideration is the importance of preserving family relationships (s4(e) of the Act). The mother has resided at XYZ for last 2 years and 4 of the 5 children who reside in the Sydney area, visit the mother either each week or fortnightly. AB visits the mother on weekends but less frequently. This is not a criticism of AB but an acknowledgement that she resides on the NSW north coast and a considerable distance from the XYZ care facility. Similarly, AC, AD and AE visit the mother 4 or 5 times a year again due to the considerable distance to travel to XYZ care facility from where they live. The proposed relocation to the aged care facility on the NSW north coast is closer to AB but would no doubt reduce the number and regularity of the visits to the mother by the four adult children who live in Sydney. If the mother remains at XYZ it is therefore more likely she will receive more family visits and preserve to a greater extent, the family relationships, than if she moved.

37. It is clear all the adult children and extended family members impress as people who care about the mother and have her best interests at heart. This was demonstrated in their written statements, attendance and evidence to the Tribunal. The Manager of XYZ also appeared credible and knowledgeable about the capacity and care needs of the mother. She was aware of the complaints made by AB about XYZ and seemed genuine in her intention to resolve any previous and ongoing issues raised by AB or other family members.

38. In conclusion, the possibility that the alternative aged care facility on the mid north coast proposed by AB will provide superior service and care to residents is not enough to justify a relocation from XYZ facility. Four of the five immediate family members and treating doctors believe XYZ facility provides good care and say the mother is settled and comfortable. Due to living in Sydney and closer to the XYZ care facility, those four family members are also able to visit the mother more regularly and are arguably in a better position to observe and assess her health and the quality of care provided at XYZ care facility. There is also no evidence that the mother’s declining health is caused by her care at XYZ care facility but more likely the progression of her disability. Finally, remaining at XYZ is more likely to preserve family relationships so that four of the five immediate family members can visit the mother regularly. The Manager at XYZ care facility also appears genuine in facilitating any requests for visits and outings with the mother by all family members and this should continue.

35. I have been advised that the mother passed away on 20 January 2017. While the decision will have no effect, I make the following orders:

1. The decision of the Public Guardian dated 10 May 2016 regarding accommodation 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 February 2017