ECV v Public Guardian

[2020] NSWCATAD 86

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	ECV v Public Guardian [2020] NSWCATAD 86
Hearing dates:	12 March 2020
Date of orders:	19 March 2020
Decision date:	19 March 2020
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	S Goodman SC, Senior Member
Decision:	The decision under review is affirmed.
Catchwords:	ADMINISTRATIVE REVIEW — Decision by Public Guardian as guardian under guardianship order— Place of accommodation of subject person — Obligations of decision maker under Guardianship Act 1987 — Principles in section 4; decision under review remained the correct and preferable decision.
Legislation Cited:	Administrative Decisions Review Act 1997 (NSW), s 63 Civil and Administrative Tribunal Act, 2013 (NSW), s 64 Guardianship Act 1987 (NSW), ss 4, 80A Guardianship Regulation 2016 (NSW), cl 17
Cases Cited:	Drake v Minister of Immigration and Ethnic Affairs (1970) 2 ALD 60
Texts Cited:	Nil
Category:	Principal judgment
Parties:	ECV (First Applicant EFI (Second Applicant) EFJ (Third Applicant) Public Guardian (First Respondent) EGB (Second Respondent)
Representation:	Solicitors: Applicants (Self Represented) Public Guardian (First Respondent) Second Respondent (Self Represented)
File Number(s):	2019/00352148
Publication restriction:	The publication of the name of the applicants (ECV, EFI and EFJ), the second respondent (EGB) or the person identified as EGC is prohibited under s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW). Note: the name of each such person includes a reference to any information, picture or other material that identifies them or is likely to lead to identification of them.

REASONS FOR DECISION

Introduction

1. This proceeding involves an administrative review of a decision made by the Public Guardian that an elderly gentleman (EGC) should continue to reside in his present accommodation.

2. EGC has five siblings. Three of those siblings are the applicants in this proceeding. EGC’s other 2 siblings (one of whom is the second respondent and the other of whom is not a party to the proceeding) support the decision of the Public Guardian.

3. The essential issue for determination is what is the correct and preferable decision as to the accommodation of EGC, and in particular whether he should continue to reside in his present accommodation, or be moved to other accommodation.

Background

4. In about 2017, EGC commenced to live at a particular residential care facility, which I will refer to as Facility X.

5. On 27 March 2019, the Tribunal reviewed the guardianship order then in place for EGC and made a new limited guardianship order, the effect of which was to appoint:

1. the Public Guardian as a guardian with authority to decide where EGC may reside; and

2. the second respondent as a guardian with authority to make medical and dental decisions for EGC.

6. In about July 2019, the applicants requested that the Public Guardian make a decision that EGC move from Facility X to another residential care facility which I will refer to as Facility Y.

7. After receiving that request, the Public Guardian obtained further information from:

1. EGC;

2. EGC’s general practitioner;

3. an employee of Facility X;

4. the second applicant; and

5. the second respondent and the sibling who is not a party to this proceeding

8. On 20 August 2019, the Public Guardian decided that EGC should continue to reside at Facility X.

9. The applicants sought an internal review of that decision.

10. On 9 October 2019, the Public Guardian made an internal review decision upholding the 20 August 2019 decision.

11. On 7 November 2019, the applicants applied to the Tribunal for administrative review.

The Tribunal’s jurisdiction and applicable law

12. Section 80A(1) of the Guardianship Act1987 (NSW) (Guardianship Act) and cl 17 of the Guardianship Regulation 2016 (NSW) provide for the Tribunal to conduct an administrative review of decisions of the Public Guardian made in exercising its functions under the Guardianship Act as a guardian.

13. Section 80A(2) of the Guardianship Act describes the persons entitled to apply for such review. Those persons include ‘any … person whose interests are, in the opinion of the Tribunal, adversely affected by the decision’ (s 80A(2)(d)).

14. I am satisfied that the applicants, as siblings of EGC, are persons adversely affected by the decision.

15. The Tribunal’s role in conducting the review is described in s 63 of the Administrative Decisions Review Act 1997 (NSW), which provides:

63 Determination of administrative review by Tribunal

(1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following:

(a)    any relevant factual material,

(b) any applicable written or unwritten law.

(2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision.

(3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide:

(a)    to affirm the administratively reviewable decision, or

(b)    to vary the administratively reviewable decision, or

(c)    to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or

(d)    to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.

16. In determining an application for administrative review, the Tribunal may consider material which was not before the original decision-maker: see Drake v Minister of Immigration and Ethnic Affairs (1970) 2 ALD 60 at 77.

17. The material before the Tribunal is contained in:

1. the guardianship orders made on 27 March 2019;

2. the Public Guardian’s original decision and the internal review decision; and

3. a series of letters written by the applicants and by the daughter of one of the applicants.

18. The applicable law is discussed below.

19. Section 4 of the Guardian Act provides:

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.

20. In making its decision, the Public Guardian was under a duty to observe each of the principles set out in s 4. The Tribunal is subject to the same duty.

Consideration

21. EGC has resided at Facility X since 2017. The available evidence suggests that he is a long-term sufferer of schizophrenia, and perhaps of a form of autism. He lives within the dementia ward at Facility X.

22. Information provided by his general practitioner (who sees him every 3 months) is that:

1. when EGC moved into Facility X, his behaviour was unsettled but over time his behaviour has improved to the point where his general practitioner described his behaviour as at August 2019 as “beautifully settled, calm and stable now”;

2. over the same period of time (2017-2019), the amount of medication that EGC has required has decreased significantly;

3. EGC is “such a different guy since arrival and he is doing really well with the current placement and supports”; and

4. were EGC to be moved, he would be “completely unsettled”.

23. An employee of Facility X provided information to the following effect:

1. EGC took a long time to settle when he first came to live at Facility X, but staff at Facility X had come to understand how best to support him and he is settled and is involved in scheduled outings;

2. the second respondent and the non-party sibling regularly visit EGC, and often take him out into the community for lunch and shopping and some overnight visits;

3. EGC seems to enjoy these outings and “follows [the second respondent] around like a puppy”;

4. EGC is also visited by the third applicant and two other persons, although not as regularly (Other evidence suggest that the two other persons are the second applicant and the wife of the third applicant. The first applicant has indicated that she has not been able to visit EGC at all at Facility X);

5. EGC enjoys these visits and happily resumes his usual activities afterwards, and appears not to be distressed or concerned afterwards; and

6. in her view, EGC is very settled and his health is well managed. He also has regular routines, friends and staff with whom he is familiar. In her view, moving EGC to another facility would not be in his best interests.

24. The Public Guardian also spoke with EGC, in the presence of the said employee of Facility X. The Public Guardian’s observations included:

1. EGC was very engaged in the conversation, smiling a lot and laughing, and adding to the conversation when the employee mentioned the various activities that EGC enjoyed, including helping the Facility X staff;

2. EGC stated that he was well and liked his home;

3. EGC showed his room to the Public Guardian; and

4. EGC appeared to require some dental assistance as his dentures were very loose, but the employee noted that he did not cope well with medical and dental appointments.

25. The Public Guardian did not ask EGC directly whether he would wish to move, because of a perception that this would be likely to upset him.

26. A common theme in the submissions made by the applicants and the respondents was that they each wanted what was best for EGC. They differ as to whether that would be achieved by EGC residing at Facility X or Facility Y.

27. The applicants’ position may be summarised as follows:

1. it is in EGC’s interests to have frequent contact with his siblings;

2. the applicants have difficulty visiting EGC in Facility X, because:

1. there is no public transport near Facility X;

2. it takes approximately one hour to drive there;

3. there is limited parking at Facility X;

4. after parking, usually some distance away, access is difficult because of the need to walk uphill and the lack of a paved footpath;

5. they are in their seventies or eighties and the first applicant has limited mobility;

3. as a result:

1. the first applicant has not visited EGC since he has been at Facility X;

2. the second and third applicants have visited EGC once or twice per month;

4. the second applicant is dependent upon the third applicant to drive to Facility X, and the third applicant is not sure how much longer he will be able to drive;

5. if EGC lived at Facility Y, which is 15 minutes by car for the second and third respondents, they could visit him perhaps three to four times per week, and take him on outings, including to visit the first applicant;

6. EGC has previously visited Facility Y and another close by facility and has indicated during visits by the second and third applicants that he wishes to move to one of those facilities but has been left disappointed when told by the third applicant that someone will be visiting him to ask whether he wishes to move;

7. little weight should be placed upon what EGC told the Public Guardian because:

1. the visit was short, particularly given the importance of the decision;

2. his dental problems would have prevented him from communicating other than by nodding his head;

3. there were no family present during that meeting and EGC may have been ill at ease and have said what he thought the Public Guardian and the Facility X employee wished to hear; and

8. little weight should be placed on the evidence of the likely effect upon EGC of moving to Facility Y, as he has changed rooms twice within Facility X with no detrimental effects.

28. The Public Guardian’s submissions were in line with the reasoning in the decisions it has made. Shortly stated, those submissions were:

1. the decision that EGC should continue to reside at facility X was made in accordance with the principles set out in s 4 of the Guardian Act;

2. the paramount consideration is EGC’s best interests. In this regard, he was unsettled for some time after moving to Facility X, but has now settled; he is on reduced medication; he has not expressed unhappiness, or a desire to move; and moving him could have an adverse impact upon him;

3. the maintenance of family relationships was carefully considered; and

4. on balance, EGC’s overall welfare is better served by him remaining at Facility X.

29. The second respondent adopted the Public Guardian’s submissions. He also submitted that:

1. Facility Y is unsuitable because it backs onto a school and the noise of school children is unsettling to EGC (this was disputed by the second and third applicants, who submitted that the school was some distance away);

2. the driving time for the second and third applicants to Facility X is 30 minutes, not one hour;

3. the driving time for himself to Facility X is about 20 to 25 minutes; and

4. the staff at Facility X are exceptional.

30. As noted above, s 4 of the Guardianship Act sets out the principles to be observed. I have had considered these principles in the formulation of the reasons which follow.

31. The paramount consideration is the welfare and interests of EGC: s 4(a). In considering this issue, I place greater weight upon the views expressed by those independent of EGC’s siblings (particularly EGC’s general practitioner) than upon the views expressed by those siblings.

32. The views of his general practitioner are set out above. Critically, the general practitioner’s views include that EGC is “beautifully settled, calm and stable now” after being unsettled when moved into Facility X; that EGC is “such a different guy since arrival and he is doing really well with the current placement and supports” and that were EGC to be moved, he would be “completely unsettled”.

33. Similar views were expressed by the employee of Facility X.

34. The applicants have suggested that EGC would not be unsettled by a move from Facility X because he has been moved twice previously. However, those moves were internal moves and I infer that the disruption to EGC’s life from those moves was considerably less than it would were he to be moved to a new facility where he would be without the friends he has made at Facility X and be faced with unfamiliar staff.

35. When meeting with EGC, the Public Guardian observed that EGC appeared to be content and stated that he was well and liked his home. I have no reason to doubt the veracity of the observations made by the Public Guardian, despite the applicants’ submissions that this engagement was too brief and that the views expressed by EGC should be treated with caution. In this regard, I note that the views of the general practitioner and the employee of Facility X, both of whom see EGC on a regular basis, are consistent with EGC being well settled and content at Facility X.

36. Whilst the applicants have contended that EGC has regularly asked when he will be moving to Facility Y and that he is disappointed when told by the third applicant that someone will be visiting him to ask whether he wishes to move (and impliedly disappointed that the move has not already happened), the notion of EGC being disappointed that he has not already moved is difficult to reconcile with the evidence of the Facility X employee that following visits from the second and third applicants EGC happily resumes his normal activities, and appears not to be distressed or concerned. Further, EGC did not tell the Public Guardian that he wished to move and appears not to have mentioned this to the general practitioner.

37. The welfare and interests of EGC is a broad concept which also include his relationships with his siblings. The importance of preserving family relationships is also expressly recognised in s 4(e).

38. At Facility X, EGC is not visited by the first applicant and is visited once or twice a month by the second and third applicants. He has regular contact with the second respondent and the non-party sibling.

39. Were EGC to be moved to Facility Y, he would likely have more regular contact with the second and third respondents. They have suggested that this could be as frequent as three to four times per week. They have also suggested that they may be able to organise for EGC to visit the first applicant. The second respondent has not suggested that he or the non-party sibling would visit EGC less frequently if EGC were to move to Facility Y, or that such a move would prejudice the ability of the second respondent to discharge his obligations as a guardian of EGC.

40. I have considered the other principles in s 4. None of these favours one Facility over the other. I note that s 4(d) states that the views of EGC in relation to the exercise of the Public Guardians functions should be taken into consideration. The Public Guardian did not ask EGC directly to express a view on whether he should be moved from Facility X to Facility Y, because “it was known that this would distress him”. The source of this knowledge is not explained but it seems likely to have been the general practitioner or the Facility X employee. I note that obtaining the views of EGC is not mandatory and I accept that the Public Guardian believed there was a good reason for not addressing this question directly with EGC. I also note that the Public Guardian did ascertain from EGC that he was well and liked his home.

41. Thus the two competing considerations which are to be weighed in the balance are:

1. the general effect upon EGC of a move from Facility X to Facility Y which, for the reasons set out above tells against such a move;

2. the extent of contact with his siblings that EGC will likely enjoy if he is at Facility X and Facility Y respectively, which for the reasons set out above tell in favour of a move from Facility X to Facility Y.

42. On balance, it is my view that the first of these factors outweighs the second. There appears to be a real chance, based upon the evidence of the general practitioner in particular, that a move to Facility Y will be a retrograde step after the advances of the last two years and be quite detrimental to the welfare and interests of EGC. This is more important than the increased access to family that EGC would likely enjoy if he moved.

Conclusion and Orders

43. For the reasons set out above, the correct and preferable decision is that EGC continue to reside at Facility X.

44. I order:

1. The decision under review 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: 19 March 2020