EBR v Public Guardian

[2020] NSWCATAD 4

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	EBR v Public Guardian [2020] NSWCATAD 4
Hearing dates:	20 November 2019
Date of orders:	08 January 2020
Decision date:	08 January 2020
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	E Connor, Senior Member
Decision:	(1)   NSW Trustee and Guardian is removed as a party to the proceedings. (2)   The decision of the Public Guardian made on 1 October 2019 to accept on behalf of the mother respite with the view of permanent accommodation at the Central Coast ACF is affirmed.
Catchwords:	ADMINISTRATIVE LAW – person under guardianship – review of decision of Public Guardian that person be accommodated in aged care facility – correct and preferable decision – welfare and interests of person to be given paramount consideration
Legislation Cited:	Administrative Decisions Review Act 1997 (NSW) Carers (Recognition) Act 2010 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Evidence Act 1995 (NSW) Guardianship Act 1987 (NSW) Guardianship Regulation 2010 (NSW) Interpretation Act 1987 (NSW) NSW Trustee and Guardian Act 2009 (NSW) Powers of Attorney Act 2003 (NSW)
Cases Cited:	Drake v Minister of Immigration and Ethnic Affairs (1970) 2 ALD 60
Category:	Principal judgment
Parties:	EBR (Applicant) Public Guardian (First Respondent) EBS (Second Respondent)
Representation:	Solicitors: Applicant (Self Represented) B Sutton (First Respondent) Second Respondent (Self Represented)
File Number(s):	2019/00315368
Publication restriction:	Pursuant to an order made under section 64 of the Civil and Administrative Tribunal Act 2013, publication restrictions apply.

REASONS FOR DECISION

Decisions under review

1. On 9 October 2019 EBR lodged an application seeking review of the decision of the Public Guardian made on 1 October 2019 to move his mother from Prince of Wales Hospital to an aged care facility on the Central Coast of NSW (the Central Coast ACF) close to his brother, EBS, for respite care with a view to permanent accommodation. Attached to EBR’s application for review is an Alternative Accommodation Proposal dated 8 October 2019.

2. On 9 October 2019 EBR also applied for a stay or interim order under s 60 of the Administrative Decisions Review Act 1997 (NSW) (“ADR Act”) to revoke the decision of the Public Guardian that the mother be placed in the Central Coast ACF, remove her from that facility and return her home to be cared for by EBR.

3. On 15 October 2019 the application for a stay or interim order was heard, directions regarding the production of documents by the applicant were made; EBS was joined as a party to the proceedings; and directions were made regarding the filing of submissions in relation to the NSW Trustee and Guardian being named as a respondent in the proceedings.

4. On 16 October 2019 the Tribunal refused the request by EBR for a stay of the decision made by the Public Guardian on 1 October 2019 and made further directions regarding the production of documents and the involvement of the mother in the substantive hearing.

5. On 16 October 2019 the Tribunal also made an order under section 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) (“the Act”) prohibiting, with the exception of expert witnesses and officers of government agencies, the publication or broadcast of the name of any person mentioned in these proceedings or referred to in the documentary material lodged in these proceedings.

6. The substantive issue in these proceedings is whether or not the decision of the Public Guardian made on 1 October 2019 that the mother be moved from Prince of Wales Hospital to the Central Coast ACF is the correct and preferable decision. EBR contends that his mother should be returned to live in her unit in the eastern suburbs of Sydney with him as her carer while the unit is sold and another property purchased close to his brother, EBS, on the Central Coast of NSW.

7. The Tribunal also needs to determine the preliminary issues raised as to whether or not NSW Trustee and Guardian, who has been named by the applicant as a respondent in the proceedings, is a party to the proceedings and/or whether the proceedings against the NSW Trustee and Guardian should be dismissed.

The applicable law

8. Section 30 of the Act sets out the circumstances in which the Tribunal has jurisdiction over a decision of an administrator as follows:

30 Administrative review jurisdiction

(1)   The Administrative Decisions Review Act 1997 provides for the circumstances in which the Tribunal has "administrative review jurisdiction" over a decision of an administrator.

Note: See section 9 of the Administrative Decisions Review Act 1997.

(2)   The Tribunal also has the following jurisdiction in proceedings for the exercise of its administrative review jurisdiction:

(a)   the jurisdiction to make ancillary and interlocutory decisions of the Tribunal in the proceedings,

(b)   the jurisdiction to exercise such other functions as are conferred or imposed on the Tribunal by or under this Act, the Administrative Decisions Review Act 1997 or enabling legislation in connection with the conduct or resolution of such proceedings.

(3)   An "administratively reviewable decision" is a decision of an administrator over which the Tribunal has administrative review jurisdiction.

Note: See section 7 of the Administrative Decisions Review Act 1997.

(4)   An "administrator", in relation to an administratively reviewable decision, is the person or body that makes (or is taken to have made) the decision under enabling legislation.

Note: See section 8 of the Administrative Decisions Review Act 1997.

(5)   An "administrative review decision" of the Tribunal is a decision of the Tribunal determining a matter over which it has administrative review jurisdiction.

(6)   An "administrative review application" is an application made to the Tribunal for an administrative review decision.

Note: Chapter 3 (Process for administrative reviews under this Act) of the Administrative Decisions Review Act 1997 also makes provision for the role of administrators when making administratively reviewable decisions and the role of the Tribunal when conducting an administrative review of such decisions.

9. Section 62 of the NSWTrustee and Guardian Act 2009 (NSW) (the “Trustee and Guardian Act”) provides for the review of decisions made by the NSW Trustee and Guardian as follows:

62 Administrative review by NCAT of decisions by NSW Trustee under this Division

(1)   An affected person may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of a decision of the NSW Trustee that:

(a)   is made in connection with the exercise of the NSW Trustee's functions under this Division, and

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

(2)   Each of the following is an "affected person":

(a)   a managed person in respect of whose estate the decision was made,

(b)   the spouse of a managed person in respect of whose estate the decision was made,

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

(3)   Subsection (1) does not apply if the decision of the NSW Trustee was made in accordance with a direction given by the Supreme Court to the NSW Trustee.

10. Section 44(2) of the Act provides that:

44 Parties and intervention

(1)    …

(2)   The Tribunal may order that a person be removed as a party to proceedings if the Tribunal considers that the person has:

(a)   been improperly or unnecessarily joined, or

(b)   ceased to be a proper or necessary party.

11. Section 80A of the Guardianship Act 1987 (NSW) (the “Guardianship Act”) provides for the 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 section 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 to review a decision made by the Public Guardian if the Tribunal is satisfied that the person has the care of the person to whom the decision relates, or is a person whose interests are adversely affected by the decision of the Public Guardian. It was uncontested that EBR has standing to make the application and I am satisfied that he is both a person who until recently had the care of the mother, and whose interests are adversely affected by the decision. EBR submitted that he may become homeless as a result of the decision.

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

15. 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).

16. In making its decision the Tribunal must give paramount consideration to the welfare and interests of persons with disabilities. Section 4 of the Guardianship Act sets out the principles which must be observed by every person exercising functions under that Act. 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

17. 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 section 36 of the Act.

18. The Tribunal may determine its own procedure in relation to any matter for which the Act or the Civil and Administrative Tribunal 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 (the Act, ss 38 and 67).

PRELIMINARY ISSUE TO BE DETERMINED

Is NSW Trustee and Guardian a party to the proceedings and/or should the proceedings against it be dismissed?

The submission of the NSW Trustee and Guardian

19. Ms Joanna Brouwer for NSW Trustee and Guardian filed a submission on 21 October 2019 requesting the removal of NSW Trustee and Guardian as a party to the proceedings.

20. Ms Brouwer states that management of the estate of the mother was committed to NSW Trustee and Guardian on 11 November 2017. EBR appealed the order but ultimately withdrew the appeal. The financial management order was reviewed by the Guardianship Division on 24 June 2019 when the appointment of NSW Trustee and Guardian as financial manager for the mother was confirmed.

21. Ms Brouwer submits that there is no decision within the application for administrative review lodged by EBR that has been made by NSW Trustee and Guardian. She submits that NSW Trustee and Guardian has been improperly and unnecessarily joined to the proceedings. Ms Brouwer seeks an order of the Tribunal to remove NSW Trustee and Guardian as a party to the proceedings under the provisions of section 44(2) of the Act.

22. Ms Brouwer notes that:

EBR appears to seek pre-emptive orders against NSW Trustee in that he seeks that the home of the mother…be sold and an alternate (sic) property be purchased for her. NSW Trustee has not made a decision regarding the sale or otherwise of the unit at (Sydney) and cannot do so until such time as the permanent accommodation of the mother has been made (sic). It is self-evident that EBR cannot invoke the review procedures prescribed by the Administrative Decisions Review Act, 1997, unless there is an administratively reviewable decision.

The submission of EBR

23. On 4 November 2019 EBR filed a response to Ms Brouwer.

24. EBR cites section 30 of the Act which is set out above. He sets out the definition of a ‘person’ provided in the Interpretation Act 1987 (NSW), which is that a person ‘includes an individual, a corporation and a body corporate or politic’ and states that the NSW Trustee and Guardian is a corporation. He also provides the definition of ‘decision’ in section 6 of the ADR Act which is as follows:

6 Meaning of “decision”

(1)   General meaning A decision includes any of the following:

(a)   making, suspending, revoking or refusing to make an order or determination,

(b)   giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission,

(c)   issuing, suspending, revoking or refusing to issue a licence, authority or other instrument,

(d)   imposing a condition or restriction,

(e)   making a declaration, demand or requirement,

(f)   retaining, or refusing to deliver up, an article,

(g)   doing or refusing to do any other act or thing.

25. EBR then states that:

The NSW Trustee was made aware that an alternative accommodation proposal decision was made to the Office of the Public Guardian but refused to act on this proposal…

26. He states the meaning of ‘administrator’ and of ‘an administratively reviewable decision’ as provided by the ADR Act and emphasises that the latter includes a ‘reference to an administrator engaging or refusing to engage in the conduct’.

27. EBR argues that:

The enabling legislation seems to me the Guardianship Act 1987.

The Public Guardian engaged in conduct or refused to engage in conduct subject to that act, therefore it is reviewable.

By implication the NSW Trustee is also refusing to make a decision.

28. After reciting sections 38 and 62 of the NSW Trustee and Guardian Act 2009, EBR asserts that:

…NSW Trustee is ‘refusing to do any other act or thing’ in regards to the mother being relocated to an aged care facility…

29. EBR goes on to cite section 3F of the Guardianship Act 1987 which sets out who are the parties to a review of a financial management order made under that Act and section 37 of the Powers of Attorney Act 2003 which provides that the Tribunal may treat applications for review of a power of attorney as an application for a financial management order. He states that on 11 November 2017 the Guardianship Division of the Tribunal made a decision to treat an application to review an enduring power of attorney as an application for a financial management order and that;

It seems to me that subject to the Guardianship Act the NSW Trustee “is a party to proceedings consisting of a review by the Tribunal.”

Consideration

30. EBR’s argument is that the NSW Trustee and Guardian was made aware of an alternative proposal in relation to his mother’s accommodation and refused to act on it. EBR’s alternative proposal was that his mother’s unit be sold and alternative accommodation be purchased in an area closer to EBS in which he and his mother would live.

31. Ms Brouwer states that NSW Trustee and Guardian has not made any decision to sell the unit and cannot do so until the mother’s permanent accommodation is determined. She submits that no administratively reviewable decision has been made by the NSW Trustee and Guardian.

32. After considering the evidence, I am satisfied that Ms Brouwer is correct. The Public Guardian made the decision that the mother be discharged from Prince of Wales Hospital and placed in the Central Coast ACF. The NSW Trustee and Guardian had not, at the time of this review, made any decision in relation to the mother’s property or the alternative proposal of EBR involving the sale of the mother’s property.

33. The NSW Trustee and Guardian is not ‘by implication’ a party to this administrative review and the legislation cited by EBR outlined in paragraph 29 above is irrelevant. The provisions he cites relate to reviews of financial management orders and the decision on 11 November 2017 of the Guardianship Division of the Tribunal to treat an application to review an enduring power of attorney as an application for a financial management order. Those proceedings do not impact the parties to these proceedings.

34. I agree with Ms Brouwer that NSW Trustee and Guardian has been improperly and unnecessarily joined as a party to the proceedings and order that they be removed pursuant to the provisions of section 44(2) of the Act.

35. Having decided that the NSW Trustee and Guardian is not a party, there are no proceedings against them to dismiss.

SUBSTANTIVE ISSUE TO BE DETERMINED

36. Was the decision of the Public Guardian made on 1 October 2019 to move the mother from Prince of Wales Hospital to the Central Coast ACF for respite care with a view to permanent placement the correct and preferable decision?

CHRONOLOGY OF EVENTS

37. The mother is an elderly woman who is the subject of a guardianship order made on 24 June 2019 when the Guardianship Division of this Tribunal reviewed an order made on 20 February 2019. The Guardianship Division re-appointed the Public Guardian as the mother’s guardian for 12 months from 20 February 2019 to make decisions about her access to others; accommodation; health care and services.

38. The mother has two sons. EBR is the applicant in these proceedings. He has cared for his mother in a unit she owns in the eastern suburbs of Sydney since 2014. EBS, the second respondent in these proceedings, lives on the Central Coast of New South Wales.

39. On 12 September 2019 the Public Guardian and a transitional nurse practitioner from War Memorial Hospital attempted to visit the mother at her unit in the eastern suburbs of Sydney. They were unable to gain access to her unit and later discovered that the mother had been admitted that day to Prince of Wales Hospital where she was diagnosed with a hip fracture following an unwitnessed fall. She later underwent surgery.

40. On 12 September 2019 a geriatrician at War Memorial Hospital recommended in a letter to the Public Guardian that ‘given the poor living conditions of her unit’ the mother should ‘have respite following discharge from hospital’.

41. On 12 September 2019 the Public Guardian informed EBS that his mother had been admitted to hospital.

37. The guardianship order made on 24 June 2019 appointing the Public Guardian as the mother’s guardian does not include a medical and dental consent function and Prince of Wales Hospital recognised EBR as his mother’s “person responsible” as defined in section 33A(4) of the Guardianship Act for the purposes of obtaining consent to her medical treatment while in hospital.

38. On 13 September 2019 the Public Guardian commenced discussions with EBR, EBS and members of the mother’s treating team regarding the mother’s discharge from hospital.

39. On 18 September 2019 EBS sent an accommodation proposal to the Public Guardian nominating the Central Coast ACF as a suitable facility for his mother upon her discharge.

40. On 18 September 2019 the Public Guardian sent an email to EBR informing him that, following advice from a social worker at Prince of Wales Hospital that the mother’s care needs required her to be transitioned into respite care, she could not return home upon her discharge from hospital.

41. On 19 September 2019 EBR sent an email to the Public Guardian objecting to the decision that his mother not be returned home upon her discharge from hospital.

42. On 20 September 2019 the Public Guardian sent a detailed email to EBR setting out the basis for the decision that the mother could not be discharged to her home. EBR was informed on that date that his mother would be transitioning to an aged care facility in the eastern suburbs.

43. On 27 September 2019 the Public Guardian received a letter from a senior social worker at Prince of Wales Hospital recommending that the mother be discharged to the Central Coast ACF. It is noted in the letter that the aged care facility in the eastern suburbs which had also been under consideration is ‘not willing to accept (the mother’s) admission as her ability to pay the permanent fees long term is unclear’.

44. On 1 October 2019 the Public Guardian made a decision to accept a respite placement for the mother at the Central Coast ACF in accordance with the proposal received from EBS. Mr Sutton informed EBS and EBR of this decision.

45. On 8 October 2019 EBR lodged an alternative accommodation proposal in which he submits that the mother should be returned home to her unit for a month, during which period the NSW Trustee and Guardian would be requested to sell the unit and purchase a rural property on the Central Coast suited to her needs.

46. The mother was discharged from hospital to the Central Coast ACF on respite care on 10 October 2019 and was being cared for in this facility at the time of this hearing.

EVIDENCE AND SUBMISSIONS

Documentary evidence

52. There was a substantial amount of material filed in the proceedings by the applicant, the Public Guardian and the second respondent.

53. The Tribunal considered the following material filed by the applicant:

1. Application for review dated 9 October 2019 attaching a document titled ‘Orders Sought’.

2. Document titled ‘Amended Orders Sought’ lodged on 10 October 2019 attaching a copy of a letter dated 1 October 2019 from the Public Guardian to the mother; an ‘Alternative Accommodation Proposal’ dated 8 October 2019 of 23 pages; and a copy of a letter dated 27 September 2019 from a senior social worker at Prince of Wales Hospital to Mr Benjamin Sutton, Principal Guardian.

3. Three page email dated 15 October 2019 and copy of document dated 18 December 2018 from EBR to the Public Guardian.

4. Document lodged 4 November 2019 addressed to Ms Brouwer of NSW Trustee and Guardian.

5. Submission lodged 11 November 2019 and Annexures numbered “A”, “C” and “F” to “J” which include an occupational therapy report; a report from a geriatrician; further copies of letters previously filed; and email correspondence between Mr Sutton of the Public Guardian and EBR dated 25 September 2019 and 1 October 2019.

6. Physiotherapy assessment dated 31 October 2019 (copy handed up at hearing by Mr Sutton).

54. The Tribunal considered the following material filed by the Public Guardian:

1. Documents filed by the respondent 31 October 2019 enclosing Reason for Decision of Public Guardian dated 31 October 2019; letter dated 27 September 2019 from a senior social worker at Prince of Wales Hospital to Mr Benjamin Sutton, Principal Guardian; copy of accommodation proposal submitted by EBS dated 18 September 2019; copy of alternative accommodation proposal of EBR dated 8 October 2019, including photographs (28 pages); letter from geriatrician to Public Guardian dated 12 September 2019; discharge referral notes relating to the mother’s discharge from Prince of Wales Hospital on 10 October 2019; various email correspondence between the parties; and documents relating to complaints from the mother and EBR’s neighbours to the Public Guardian.

55. The Tribunal considered the following material filed by EBS, the second respondent:

1. Email sent to the Tribunal on 15 October 2019.

2. Submission dated 7 November 2019 lodged 14 November 2019 (5 pages).

Evidence given at hearing

Evidence of EBR

56. EBR submitted at the hearing that the decision made by the Public Guardian to place his mother at the Central Coast ACF was based on ‘wrong information being adduced’; that the Public Guardian failed to comply with the Carers (Recognition) Act 2010 by not considering his evidence or consulting with him as carer; and that the decision was made ‘deceptively’.

57. EBR was aggrieved that his alternative proposal was not considered and stated that he had no notice of the Central Coast ACF proposal until after the decision for his mother to be placed there was made on 1 October 2019. He asserted that if he had been made aware of the Central Coast ACF proposal he would have been ‘able to make valid objections’ and that he was denied the opportunity to do so.

58. During the hearing EBR asserted that the appropriate accommodation for his mother is for her to reside in her own unit in the eastern suburbs with him as her carer while the NSW Trustee and Guardian sells the property and purchases a property nearer to EBS. He stated that there are ‘no evidence based complaints’; that there is ‘no reason for my mother to be in care’, that residential care should be ‘a last resort’; and that his mother has the means to receive additional home support from care providers.

59. EBR disputed the evidence that his mother requires the assistance of two people for transfers and asserted that she now only needs the assistance of one person most of the time for transfers. He does not believe she needs 24 hour nursing care and asserted that most of the care she is currently receiving is not provided by qualified nurses. EBR said that the mother is now incontinent because she is in care where the ‘voiding technique’ he used at home is not employed. He stated that when she was at home he took her to the toilet every four hours and did not allow her to drink before going to sleep.

60. EBR said that the mother had ‘problems with physiotherapy’ in hospital because she was unable to understand the instructions and loses attention very quickly. He stated that he has lived with his mother since 2011; he ‘knows her best’; and ‘she trusts me’.

61. In closing submissions EBR stated that he has looked after his mother since September 2011 and takes credit for ‘curing most of her physical ailments’. He said that there is no cure for dementia but that he ‘offered a range of approaches that slowed down her dementia’. He submitted that a number of people have made claims about the care he provided his mother, most of which are based on ‘bias and short-term observation’, not on fact.

62. EBR stated that the Public Guardian made a decision about his mother’s accommodation that did not give him time to formulate an alternative proposal. He believes that rehabilitation is ‘very much a possibility’ for the mother and that his mother’s ‘quality of life and rehabilitation would be better served in her own home’.

63. EBR stated that he never suggested that the mother’s unit in the eastern suburbs was suitable accommodation and that he ‘constantly told everyone that his desire was to move out of Sydney’. He said that ‘the sale and exchange of properties need not take 110 days if I am able to be involved’ and that he has been informed by a real estate agent that it could happen in one month.

64. EBR submitted that the Public Guardian erred by not considering the ‘alternative accommodation scenario’ he put forward and was too hasty in accepting the placement at the Central Coast ACF. He asserted that if he had been given ‘even one week’s additional notice’, he may have produced an alternative proposal that was more acceptable and produce occupational therapy and other reports. EBR also asserted that it may have been possible for his mother to undertake rehabilitation at either the War Memorial Hospital or at her unit with him as her carer.

65. When he visited his mother recently, EBR found her slumped in her bed with English television on. In contrast, when she was at home, EBR encouraged her to participate in as many activities as possible. He asserted that his mother is ‘ok with one person support for at least two years with whatever additional home care supports she needs’.

66. EBR said that the staff at the Central Coast ACF cannot communicate with his mother and that communication and stimulation are the most important aspects of a person’s life. He believes that the decision made by the Public Guardian is not in his mother’s best interest.

67. EBR concluded by stating that:

The reality is that if I cannot continue to be my mother’s carer I will become homeless. I have no prospect of finding employment or alternative accommodation. My mother would not want me to become homeless.

68. EBR also stated that the report provided by the physiotherapist dated 31 October 2019 supports his view and that ‘there is no evidence that my mother requires nursing care’.

Evidence of the mother

69. I attempted to seek the views of the mother by telephone during the hearing with the assistance of an interpreter in the Russian language who was present in the hearing room. The mother was supported by two clinical care managers at the Central Coast ACF.

70. I was unable to elicit any response from the mother to my questions.

71. One of the clinical care managers (CCM) informed me that she thought the mother was able to hear me; that she ‘perked up’ when she heard the Russian interpreter; that she was not agitated or upset; and that she smiled when she heard EBR’s voice.

72. EBR and EBS both tried to elicit responses from the mother without success.

Evidence of the CCM

73. CCM stated that the mother makes no requests to leave the facility and does not appear to be distressed or anxious. The mother is doubly incontinent and wears pads. Staff attend to all her care needs and she requires full assistance with showering and dressing. She is able to walk short distances and to feed herself with supervision. She can be showered by one person and generally needs only one person to assist her with transfers, depending on her level of cooperation and understanding. CCM stated that two people were required to assist her to transfer prior to the hearing.

74. Under cross-examination by EBR, CCM stated that in developing a care plan for the mother the facility considered the information from the hospital and the assessment completed by the Aged Care Assessment Team and spoke to EBS. They have corresponded by email with EBR. CCM noted that staff generally try to follow EBR’s ‘recommendations’ in relation to his mother’s care needs, however some, such as regarding her toileting, are ‘very specific’ and unable to be implemented.

Evidence of Mr Sutton for the Public Guardian

75. Mr Sutton gave evidence that residents of the strata complex in which the mother previously lived with EBR have raised concerns about the level of care afforded to the mother and issues relating to the maintenance of the property.

76. Mr Sutton stated that the Public Guardian has been concerned about EBR’s reluctance to accept services for his mother and that it ‘took a number of attempts and a lot of negotiations’ prior to support being provided to her at home.

77. The Public Guardian focused on the alternative accommodation proposal put forward by EBR that his mother be transferred home because no alternative was suggested by him. EBR told the Public Guardian that the mother’s current property could be sold and a more suitable property purchased within one month. The Public Guardian did not believe this to be possible and that a more realistic timeframe for the sale and purchase of properties would be six to twelve months. The Public Guardian determined, therefore, to accept EBS’s proposal for his mother to be placed in respite at the Central Coast ACF.

78. Under cross-examination from EBR, Mr Sutton stated that he had been advised by the NSW Trustee and Guardian that a sale of the mother’s unit would take at least 110 days, not including the time required to ‘make the property saleable’.

79. Mr Sutton stated that the mother requires accommodation which has level access. He acknowledged that community based accommodation for the mother would be preferable but stated that trials would be required. Mr Sutton also acknowledged the recommendation of the physiotherapist in the report dated 31 October 2019 that the mother have access to additional physiotherapy. He noted that at the time of the hearing the mother remained in respite care at the Central Coast ACF and that a further decision will be required as to whether a permanent placement at this facility should be accepted.

80. Mr Sutton gave evidence that he attempted to seek the mother’s views on two occasions, once by telephone and once in a face to face meeting at Prince of Wales Hospital with an interpreter. He found it difficult to establish what the mother’s views were, but ‘it seemed she was saying that she wanted to move to be closer to EBS and to an aged care facility and did not want to return home’. Mr Sutton acknowledged that there are differing opinions about the mother’s wishes.

81. Under cross-examination by EBR Mr Sutton acknowledged that he had not advised EBR about the alternative proposal put forward by EBS in relation to their mother’s accommodation and stated that he is not required to do so. Initially preference was given to the proposal agreed to by both EBR and EBS that the mother be placed at an aged care facility in the eastern suburbs. This proposal was not able to be acted upon because the Public Guardian was informed that the offer was withdrawn by the facility because there was uncertainty regarding the mother’s ability to pay the required fees.

82. On 27 September 2019 the Public Guardian received a proposal from EBS in relation to the Central Coast ACF. Mr Sutton stated that EBR agreed that his mother required a period of respite care.

83. EBR queried why the Public Guardian had not explored the mother being transferred to the War Memorial Hospital for rehabilitation. Mr Sutton responded that he had been informed by the mother’s treating team that she was not a suitable candidate for rehabilitation.

84. When asked by EBR to outline the Public Guardian’s concerns about the mother being cared for in her unit, Mr Sutton stated that there are concerns about the large amounts of clutter.

85. Under cross-examination from EBS, who outlined the difficulties historically in services being provided at home to his mother, Mr Sutton noted that this problem was not a key part of the decision that the mother could not be discharged home from hospital. Mr Sutton also confirmed that initially the eastern suburbs facility was preferred because it was suggested by an independent social worker and was seen as suitable because of its location and focus on people with a particular cultural background. Mr Sutton acknowledged that EBS had indicated quite quickly his concern that this facility may not be an option because of financial uncertainty regarding the mother’s ability to pay for her care.

Evidence of EBS

86. EBS noted that the Guardianship Division of this Tribunal has been dealing with his mother’s situation since he lodged initial applications in 2015. There have since that time been multiple reviews and appeals, including an appeal to the Supreme Court which was ‘thrown out by Justice Lindsay’.

87. EBS submitted that the key issue relates to his brother’s desire for his mother to return home to be with him. He stated that EBR has not historically taken any actions in relation to his mother’s ‘deteriorating status’ and that the poor physical state of her unit reflects his brother’s lack of suitability as a carer.

88. EBS stated that he visits his mother at the Central Coast ACF every day. According to the visitor’s book, his brother (EBR) has visited his mother on only four occasions, three of which were to ‘gather evidence by meeting with doctors and other health professionals’. His brother brought ‘an unwashed robe and half a packet of wafers’ to the facility and has not brought any of his mother’s personal effects, clothes or photographs.

89. EBS noted that his brother’s proposal, ‘as convoluted as it is, basically acknowledges that (his mother’s eastern suburbs unit) is not suitable, yet he proposes that the guardian returns his mother to the same unsuitable accommodation’. Alternatively, EBR proposes that his mother should have been left in hospital while he gives effect to his alternative proposal to buy and sell properties. EBS submitted that his brother’s assertion that this would take one month is unrealistic and that it would take a minimum of 12 months, during which time the guardian cannot leave their mother in hospital.

90. In his closing submission EBS stated that his brother’s issues are more related to longer term decisions as to where their mother should be, rather than the decision of the Public Guardian which is under review.

91. EBS submitted that the hospital is ‘not a hotel’ and that patients cannot remain in hospital ‘while legal processes play out’. The Public Guardian was required to make a decision within a limited timeframe and there are practical limitations and financial considerations. In principle the eastern suburbs option seemed a good option but it turned out not to be available. The Public Guardian had to consider whether the bed at the Central Coast ACF might cease to be available and that, ‘given the constraints I can’t see how Ben (Mr Sutton) could have made any other decision’.

92. EBS noted that ‘we are now two months down the track and there is still no practical alternative’. My mother ‘can’t go back to hospital and by EBR’s own admission her unit is not suitable. There is no superior alternative.’

93. EBS stated that he visits his mother at the aged care facility at different times of the day. He has met lots of staff, all of whom have experience dealing with dementia patients and those with limited English. He has made language cards to assist the staff and on occasions has found his mother sitting on the balcony or in the lounge area with a staff member. He has spoken to staff who do not report any particular problems in caring for the mother. As a result of her advanced dementia she cannot learn things. He has identified a Russian speaking general practitioner and dentist who can be consulted if required, however his mother’s dementia is such that she cannot identify any problems she is experiencing.

94. EBS gave his mother a CD of Russian songs, to which she enjoys singing along loudly. Her Australian roommate also seems to enjoy the Russian music and there is no reason to believe his mother is experiencing any discomfort. If the mother becomes a permanent resident she will become eligible for additional services. This is due to happen in early December 2019. EBS reiterated that:

I don’t see how the Public Guardian could have made a different decision then or now.

Consideration

95. 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.

95. In determining this matter, I have taken into account the oral and documentary evidence noted above, the submissions of the parties and the principles set out in section 4 of the Guardianship Act 1987.

96. The Public Guardian had two options before it when determining the mother’s discharge location following surgery at Prince of Wales Hospital. The first option was that she be placed on respite, with a view to a permanent placement, at the Central Coast ACF in accordance with the proposal submitted by EBS. The second option was that the mother be discharged home to be cared for by EBR in her unit in the eastern suburbs while EBR sought to arrange the sale of her unit and the purchase of a more suitable property.

97. The Public Guardian provided documentary evidence that several sources, including a geriatrician from the Geriatric Flying Squad, Jewish Care, EBS, a neighbour of the mother, and trades people who have completed work in the mother’s unit block, expressed concern to the Public Guardian about the care provided to the mother at home in her unit prior to her admission to hospital.

98. There is extensive documentary evidence raising concerns about the condition of the mother’s unit and its suitability for her. Concerns are raised about the mother’s inability to manage the stairs that lead to her unit which would seriously impact her ability to access the community. There is evidence that prior to her hospitalisation the mother had difficulty negotiating the stairs and that EBR was seen to be trying to carry her up them.

99. In an email to the Public Guardian on 23 August 2019, for example, a concerned neighbour expressed serious concern about the safety and adequacy of the mother’s accommodation, including several large and aggressive dogs living in the unit, and the associated smell and noise; a lack of overhead lights; ceilings which are in very poor condition with concrete and plaster falling out of them; and the mother being left home alone.

100. In an email to EBR on 20 September 2019, the Public Guardian refers to a visual inspection report provided to them which highlights a number of occupational health and safety concerns. These include, but are not limited to, access to all rooms being difficult and hazardous; window and doors requiring maintenance; main bathroom cluttered and ‘a safety concern’; major damage to ceiling which requires repair; and damaged light fittings which require replacement.

101. The mother was not admitted to hospital until 48 hours after an unwitnessed fall at her unit and there is documentary evidence that she was regularly left at home alone with some or all of EBR’s dogs for extended periods of time.

102. The mother’s treating team believed that the mother required full assistance for personal and domestic tasks and the support of trained staff 24 hours per day following her discharge from hospital. They submitted that this level of care could be best provided in an aged care facility. EBR submitted that he can care for his mother at home with some support services.

103. The mother has not expressed a consistent or reliable view as to her wishes. The Public Guardian reports that she indicated to them and to the treating team that she did not want to go home. EBS does not believe his mother is able to provide an opinion. EBR states that his mother has stated she wants to return home. During the hearing the mother was unable to respond to any questions put to her with the assistance of an interpreter.

104. As provided in the principles set out in section 4 of the Guardianship Act 1987, a person with a disability should be encouraged, as far as possible, to live a normal life in the community.

105. It is acknowledged that EBR cared for his mother at home in her unit for a number of years. It is apparent however that, at least in part, EBR’s motivation for wishing to continue to live with and care for his mother is self-interested. He stated during the hearing that if he cannot continue to be his mother’s carer he will become homeless and that he has no prospect of finding employment or alternative accommodation.

106. I accepted the evidence of the Public Guardian (who relied on the advice of the mother’s treating team) that on discharge the mother required 24 hour care and supervision which could not be provided to her at home by EBR. I accepted the evidence of the Public Guardian that the mother was not being adequately cared for when she was living at home with EBR and that her overall health and well-being improved when she was being cared for in hospital.

107. While consideration must be given to the importance of preserving family relationships, the Public Guardian is required to make decisions that are in the best interests of the person who is the subject of the guardianship order and to ensure that such persons are protected from neglect. There is no evidence that the decision of the Public Guardian resulted in any deterioration in family relationships.

108. I found EBS to be a calm, clear witness whose concern is to ensure his mother’s safety and welfare. He demonstrated a measured, objective approach and did not show any vindictiveness towards his brother. His evidence was succinct and relevant.

109. In contrast, much of the evidence of EBR was of limited relevance. I preferred the evidence of the Public Guardian (who relied on and provided objective evidence from numerous sources) regarding the condition of the mother’s unit and the risks to her in that environment, to the evidence of EBR that this is not true. I agree with the Public Guardian that the mother’s unit was not a suitable place for her when she was ready to be discharged from hospital.

110. I found EBR’s submission that the mother’s unit could be sold, and a new property purchased, within one month to be totally unrealistic. I agree with EBS that the mother could not remain in hospital while the sale and purchase of properties was undertaken.

111. EBR sought to confuse the key issues by raising issues such as the Carers (Recognition) Act 2010. I have considered that Act and there is no evidence that the Public Guardian has failed to comply with it.

112. There is no evidence that the Public Guardian did not consult with EBR or that any decision was made ‘deceptively’. There is evidence of considerable communications between EBR and the Public Guardian at the time the mother’s discharge destination was being determined.

113. Although the decision under review was made on 1 October 2019, it was not acted upon until around 10 October 2019 and on 10 October 2019 the Public Guardian confirmed the decision. EBR did not make provide any alternative proposal between 1 October 2019 and 10 October 2019.

114. I understand that the decision made by the Public Guardian in relation to the mother’s placement in an aged care facility may have significant consequences for EBR. Paramount consideration must, however, be given to the welfare and interests of the mother. I am satisfied that her welfare and interests were best met by her being discharged from Prince of Wales Hospital on respite to the Central Coast ACF, rather than her being discharged home to live with EBR, even for a short period of time.

115. After considering the evidence before me and weighing up the competing views, I am satisfied that the decision made by the Public Guardian was the correct and preferable one.

Orders

117. The orders of the Tribunal are that:

1. NSW Trustee and Guardian is removed as a party to the proceedings.

2. The decision of the Public Guardian made on 1 October 2019 to accept on behalf of the mother respite with the view of permanent accommodation at the Central Coast ACF 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: 08 January 2020