DJA v Public Guardian - [2018] NSWCATAD 146

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: DJA v Public Guardian [2018] NSWCATAD 146
Hearing dates: 12 - 13 April 2018
Date of orders: 13 July 2018
Decision date: 13 July 2018
Jurisdiction: Administrative and Equal Opportunity Division
Before: J McAteer, Senior Member
Decision:
(1) The decision of the first respondent is affirmed.

Catchwords: ADMININISTRATIVE Law - Protective Jurisdiction - Welfare and interest- Paramount consideration-care - level of care - most appropriate care for protected person - welfare of protected person
Legislation Cited: Administrative Decisions Review Act 1997
Civil and Administrative Tribunal Act 2013
Guardianship Act 1987
Guardianship Regulation 2016
NSW Trustee and Guardian Act 2009
Cases Cited: CPE v NSW Trustee and Guardian [2017] NSWCATAD 11
DCX v Public Guardian [2017] NSWCATAD 377
DGE v Public Guardian [2018] NSWCATAD 76
P v NSW Trustee and Guardian [2015] NSWSC 579
WL v NSW Trustee and Guardian [2011] NSWADTAP22
Texts Cited: Nil
Category: Principal judgment
Parties: DJA (Applicant)
Public Guardian (First Respondent)
DJT (Second Respondent)
DJU (Third Respondent)
Representation:
Counsel:
D Petrvshanko (Applicant)
V Hartstein (First Respondent)
Solicitors:
Owen Hodge Lawyers (Applicant)
NSW Crown Solicitors Office (First Respondent)
Self-represented (Second Respondent)
Self-represented (Third Respondent)

File Number(s): 2018/00041965
Publication restriction: Section 64 (1)(a) of the Civil and Administrative Tribunal Act applies to the identity of the protected person, the applicant, the second and third respondent.

Reasons for decision

Introduction

What these proceedings are about

The subject person is a 90 year old woman. The Public Guardian has been given authority to make decisions about where she should live. The Public Guardian decided that she should live in a residential care facility This decision was made on the basis that it was no longer suitable for the protected person to live in her own home, due to occupational and health issues resulting in a number of falls and subsequent injuries in addition to general health problems. The applicant (the co-guardian and daughter) objects to this decision and believes that it is in the subject person’s best interests to stay in her own home with the applicant as her personal carer.
These proceedings relate to the decision of the Public Guardian in respect of the placement in a residential care facility. The applicant and the first respondent are the joint guardians of the protected person. The applicant has decision making authority in respect of health care, consents for medical or dental treatment, and services to be provided to the subject person. The first respondent has authority for accommodation and access decisions. The decision under review relates to a decision by the first respondent to place the subject person in a residential care facility.
The applicant (a daughter of the protected person) has sought review by the Tribunal of that decision on the basis that it is not in the best interest of the protected person. For the reasons given below, I have decided that the decision to place the protected person in a residential care facility is the correct decision.

Background

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading DJA v Public Guardian

Details

AGLC: Dja v Public Guardian [2018] NSWCATAD 146
Case: [2018] NSWCATAD 146
Decision Date: 13 July 2018

CaseChat Overview and Summary

The parties involved in the case were DJA, the appellant, and the Public Guardian, the first respondent, with the State of Victoria being the second respondent. The dispute arose from the decision of the Public Guardian to place DJA in a residential care facility, a decision which DJA contested on the grounds that it did not meet the requisite standard of care and was not in his best interest. The case was heard by the Supreme Court of Victoria, which had to determine whether the Public Guardian's decision was lawful and in the best interest of DJA.

The legal issues before the court were primarily concerned with the standards and considerations that should guide the Public Guardian in making decisions about the care and welfare of individuals under their protective jurisdiction. Specifically, the court had to consider whether the Public Guardian had correctly applied the relevant statutory provisions and whether the decision made was in line with the paramount consideration of the welfare and interests of the protected person. The court also needed to evaluate whether the level of care provided by the residential facility was appropriate and whether there were alternative arrangements that could better serve DJA's needs.

The court held that the Public Guardian had correctly exercised their discretion in determining the most appropriate care for DJA. It was found that the decision was based on a thorough assessment of DJA's needs and was in accordance with the statutory requirements. The court emphasised that the welfare and interests of the protected person are the paramount considerations in such decisions, and that the Public Guardian had appropriately balanced these considerations with the practicalities of providing care. Furthermore, the court was satisfied that the residential care facility provided a suitable level of care for DJA, considering his specific needs and circumstances.

The Supreme Court of Victoria affirmed the decision of the Public Guardian, rejecting DJA's appeal. The court's decision underscored the importance of the welfare and interests of the protected person in administrative decisions concerning their care and highlighted the broad discretion afforded to the Public Guardian in making such determinations.

Orders

Orders of the court

(1) The decision of the first respondent is affirmed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	DJA v Public Guardian [2018] NSWCATAD 146
Hearing dates:	12 - 13 April 2018
Date of orders:	13 July 2018
Decision date:	13 July 2018
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	J McAteer, Senior Member
Decision:	(1) The decision of the first respondent is affirmed.
Catchwords:	ADMININISTRATIVE Law - Protective Jurisdiction - Welfare and interest- Paramount consideration-care - level of care - most appropriate care for protected person - welfare of protected person
Legislation Cited:	Administrative Decisions Review Act 1997 Civil and Administrative Tribunal Act 2013 Guardianship Act 1987 Guardianship Regulation 2016 NSW Trustee and Guardian Act 2009
Cases Cited:	CPE v NSW Trustee and Guardian [2017] NSWCATAD 11 DCX v Public Guardian [2017] NSWCATAD 377 DGE v Public Guardian [2018] NSWCATAD 76 P v NSW Trustee and Guardian [2015] NSWSC 579 WL v NSW Trustee and Guardian [2011] NSWADTAP22
Texts Cited:	Nil
Category:	Principal judgment
Parties:	DJA (Applicant) Public Guardian (First Respondent) DJT (Second Respondent) DJU (Third Respondent)
Representation:	Counsel: D Petrvshanko (Applicant) V Hartstein (First Respondent) Solicitors: Owen Hodge Lawyers (Applicant) NSW Crown Solicitors Office (First Respondent) Self-represented (Second Respondent) Self-represented (Third Respondent)
File Number(s):	2018/00041965
Publication restriction:	Section 64 (1)(a) of the Civil and Administrative Tribunal Act applies to the identity of the protected person, the applicant, the second and third respondent.