EGN v Public Guardian

[2020] NSWCATAD 157

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	EGN v Public Guardian [2020] NSWCATAD 157
Hearing dates:	7 May 2020
Date of orders:	22 June 2020
Decision date:	22 June 2020
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	C Mulvey, Senior Member
Decision:	The decision of the Public Guardian 9 April 2020 is affirmed.
Catchwords:	Administrative review – whether the decision of the Public Guardian is the correct and preferable decision - best interests of the subject person – section 4 Guardianship Act 1987
Legislation Cited:	Administrative Decisions Review Act 1997 Civil and Administrative Act 2013 Guardianship Act 1987
Cases Cited:	McDonald v Guardianship Administration Board [1993] 1 VR 521
Category:	Principal judgment
Parties:	EGN (First Applicant) EGP (Second Applicant) Public Guardian (Respondent)
Representation:	Nil
File Number(s):	2020/00094521
Publication restriction:	An order pursuant to s64(1)(a) Civil and Administrative Tribunal Act 2013 (NSW) prohibiting the disclosure of the name of any person (whether or not a party to proceedings in the Tribunal or a witness summoned by, or appearing before, the Tribunal.

REASONS FOR DECISION

1. The following reasons for decision relate to an application filed by EGN and EGP on 26 March 2020. EGN and EGP are pseudonyms used to pursuant to an order made under 64(1)(a) of the Civil and Administrative Act 2013 (NCAT Act). EGN is the son of EGP who is a 78 year old woman. EGP has been diagnosed with dementia for some years. They reside together in EGN’s home in the suburbs of Sydney. EGN is a full time carer for his mother.

2. EGP has four children. Two of her adult daughters are referred to in these reasons for decision using the pseudonyms A and B.

3. The hearing was conducted partly by telephone and audio-visual link (AVL). The Public Guardian was the only party appearing by AVL.

BACKGROUND

4. On 1 February 2019, the Guardianship Division of this Tribunal conducted a statutory end of term review of a previous a guardianship order made by the Tribunal concerning EGP. At that hearing, the Public Guardian was re-appointed as EGP’s guardian for a further period of 12 months. The Public Guardian was authorised to make decisions for EGP in the areas of access, accommodation, health care, medical and dental treatment consents and services.

5. At the time of this hearing, the review of the 1 February 2019 guardianship order was pending before Guardianship Division for further review. Importantly, the Public Guardian remained appointed as EGP’s guardian.

6. The application initially sought that I undertake an administrative review of a decision made by the Public Guardian on 19 March 2020, which decision provided consent for EGP to be provided services and taken out on social outings. EGN contended that this decision placed his mother at risk, particularly in the context of the COVID -19 pandemic.

7. The Public Guardian’s decision is contained in a letter to EGP dated 19 March 2020:

…

The decision

The Public Guardian has decided to continue with the existing five-day Multicultural Services care in place for you. This is with [sic] view that care and support in line with the health guidelines provided by your treating doctors.

8. It became apparent during the hearing that a further decision made by the Public Guardian on 9 April 2020 was the real ‘reviewable decision’. The application was amended so that the following decision was to be the decision under administrative review:

‘The Public Guardian consents to care services to be provided for you as detailed below. These services are to be implemented from 11 April 2020 onwards. That is, upon your return to your home from your current respite stay.

Easter weekend 2020:-

April Saturday 11th: 1.30-4.30 p.m. Sydney Multicultural Community Services (MCS) i.e. (deleted) will transport you home from the service apartment then (deleted) 6-7 p.m. (personal care, medication and dinner).

April Sun 12th: 10-11 Sydney MCS (meal preparation, personal care, medication (then (deleted) or his wife lunch and dinner personal care, medication)

April Mon 13th: 8-2 p.m. private carer (meal preparation, medication, personal care, domestic and social service) then (deleted) 5 to 7 p.m. dinner (personal care, medication)

Followed by weekly services (starting on Tuesday 14th April 2020):-

Mon: 8-2 p.m. private carer then 3-7 p.m. Sydney MCS care workers (both supports including: meal preparation, medication, personal care, domestic and social service)

Tues: 8-2 p.m. private carer 3-7 p.m. Sydney MCS care workers (both supports including meal preparation, medication, personal care, domestic and social service)

Wed: 8-2 p.m. private carer 3-7 p.m. Sydney MCS care workers (both supports include meal preparation, medication, personal care, domestic and social service)

Thu: 8-2 p.m. private carer 3-7 p.m. Sydney MCS care workers (both supports including meal preparation, medication, personal care, domestic and social service)

Fri: 8-2 p.m. private carer 3-7 p.m. Sydney MCS care workers (both supports including meal preparation, medication, personal care, domestic and social service)

Sat: 10-12 p.m. and 6-7 p.m. Sydney MCS care workers (meal preparation, personal care and medication)

Sun: 10-12 p.m. and 6-7 p.m. Sydney MCS care workers (meal preparation, personal care and medication)’

9. A and B both oppose this application and submitted that the decision of the Public Guardian was in their mother’s best interests and should be affirmed.

Evidence

10. The applicants relied upon the following evidence.

• Application form 25 March 2020 (A1)

• Statement of EGN filed 6 May 2020 (A2)

• Affidavit of EGN made 26 April 2020 (A3)

11. The respondent relied upon the following evidence.

• Notice of reply filed 24 April 2020 (R1)

• Email from EGN 5 May 2020 (R2)

• Email from EGN 4 May 2020 (R3)

• Statutory declaration of A 30 April 2020 (R4)

• Email from EGN 17 April 2020 (R5)

• Email from the respondent 17 April 2020 (R6)

12. In addition to the documents referred to above, written and oral submissions were relied upon by each party.

Relevant legislation

13. It is the duty of a guardian carrying out any function under the Guardianship Act 1987 (‘the Guardianship Act’), including the Public Guardian, to ensure that the principles in s 4 of that Act are observed. The relevant principles are:

(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.

14. In administering the functions as the guardian for ENP, the Public Guardian made a number of decisions, including, the decision which is the subject of this administrative review application. The administrative reviewable decision relates to the services function the Guardianship Division granted authority to the Public Guardian to make for EGP. I am satisfied that the reviewable decision, is a decision within the Public Guardian’s authority (see - ss. 14 and 16 of the Guardianship Act).

15. Section 80A of the Guardianship Act empowers certain persons to apply to this Division of the Tribunal to seek administrative review of a decision made by the Public Guardian under that Act.

80A ADMINISTRATIVE REVIEW BY CIVIL AND ADMINISTRATIVE TRIBUNAL OF GUARDIANSHIPDECISIONS 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.

16. I am satisfied that the applicants fall within the definition of a person to whom the decision relates (EGP) and her carer (EGN), and, that the decision made by the Public Guardian on 9 April 2020 is one which is captured by that section. It enlivens the jurisdiction of this Division of the Tribunal to proceed to undertake an administrative review.

17. In reviewing the decision, the Tribunal ‘stands in the shoes’ of the Public Guardian and is required to make the ‘correct and preferable decision’ having regard to any relevant factual material and any applicable written or unwritten law (s63 of the Administrative Decisions Review Act 1997).

18. The review is to be conducted ‘without any presumption as to the correctness of the decision’: McDonald v Guardianship Administration Board [1993] 1 VR 521 at 530. On review, the Tribunal may exercise all of the functions that are vested in the Public Guardian.

Discussion of the evidence

The views of EGN

19. In their joint submissions the applicants contend that there are significant and worrying issues concerning the decisions made by the Public Guardian concerning the protection of EGP. The applicants allege that the Public Guardian has been influenced by other members of the family in making decisions for EGP without giving proper regard to the factual information provided to the Public Guardian. The submissions of EGN included a myriad of allegations which related to other decisions made by the Public Guardian, such as access, which are not specifically relevant to this application. The primary complaint which is the subject of this application relates is the decision of the Public Guardian as set out in paragraph 7. The following matters are raised by the applicants as to the correctness of that decision:

• providing accurate information as to who was to be the carer for EGP whilst outside her home;

• not taking into consideration the conflict between EGN and his two siblings (A and B);

• making decisions with no respect for EGN’s ‘human dignity’;

• failing to take into consideration the effects of Covid-19 on EGP;

• allowing EGP to live in a serviced apartment for one week with her daughter and son-in-law;

• incorrectly accepting information that EGN refused to allow Sydney Multicultural Services in the home to assist EGP;

• a misguided view that EGP requires additional daily drop in assistance over and above the assistance provided by EGN with activities of daily living.

20. I have considered the affidavit filed in the proceedings by sworn on 26 April 2020.

21. EGN submitted that the Public Guardian has allegedly obtained information ‘derived through unlawful means by unduly influencing my mother’s health care practitioners …’. He alleges that the relevant officer of the Public Guardian has breached s101 of the Guardianship Act in disclosing hearsay personal information to health care practitioners concerning himself and his mother without their consent. I reject this submission as it is incumbent upon any guardian, who has a healthcare function, to pass on information between health care practitioners to ensure a subject person’s health and wellbeing, such as EGP.

22. In his oral submissions EGN said that the initial objection to the decision of the Public Guardian was framed in relation to his mother’s exposure and risk to Covid-19. During oral submissions EGN said that this was no longer an issue. The decision which he disagrees with is for the provision of in home care services to support his mother.

23. I asked EGN what services he contends are not required to support his mother. He said meal preparation and medication monitoring. He agreed that there was a need for a private carer to attend on his mother in the mornings to assist with personal care, showering and the like. In this regard EGN said that a carer attending in the morning is only needed for 3 days a week. In all other respects EGN said he can attend to his mother’s activities of daily living.

24. EGN described the activities carried out by the private carer who attends on his mother in the morning. He said the carer arrives at about 8.00 to 9.00 a.m. She attends to the laundry, cleaning the home, showering his mother, spending time with her and making her coffee and providing biscuits. EGN said when the carer is not in attendance his mother can attend to most of these matters herself. EGN said his mother prepares her own dinner at night and she likes to eat things such as eggs for which she operates a stove to make.

25. I put to EGN that the medical evidence which has been relied upon by the Public Guardian indicates that EGP requires prompting with most activities of daily living. This evidence was in stark contrast to his. He responded as follows:

‘These reports are prepared remotely. I was quite surprised with Dr Mills. My view is that my mother’s activities and capabilities and the services that are recommended are based on information from other individuals and they have concluded that she needs what is recommended. She does not need these.’

26. I asked EGN whether he had medical evidence to support his submission and he said he did not but he wished to rely on a report from Dr Mills (1 August 2019) which in his view says that EGP is ‘fully continent’ and this shows his mother’s independence. He said this is one example why the decision of the Public Guardian is not correct.

27. EGN said that the first occupational therapy assessment which was undertaken in February 2019 disclosed, in his view, a lot of discrepancies. He said that that assessment was made without his knowledge and he was not able to contribute to information used by the assessor in providing the report. EGN said that the information provided to the occupational therapist was from his sister and that little weight should be placed on that report. I disagree.

28. In reply to the evidence of A and B, EGN said that his mother does not wear incontinence aids as she is adamant, she does not need them. EGN and EGP’s view is inconsistent with the medical evidence before me which suggests that she requires incontinence aids, including at the time she was in respite.

29. EGN said that he is not at home all of the time to prompt and supervise his mother, however, he said she does not require prompting as alleged by service providers and the staff at the aged care facility where EGP was on respite. I do not accept EGN’s evidence in this regard as it is inconsistent with the occupational therapist’s reports and the views of various health care practitioners which are included in the papers.

30. I find that EGN has a genuine concern for the health and wellbeing of his mother. EGN is a fulltime carer for EGP and he resides with his mother on a full time basis in her home. I have placed less weight on the evidence of EGN as it is inconsistent with the evidence before the Tribunal from various healthcare practitioners, the Public Guardian, services providers and A and B.

The views of EGP

31. EGP participated in the hearing with her son by telephone. EGP denied that she requires any assistance in and around the home and repeatedly said: ‘I do not need any help I can help myself. I don’t want anybody helping me with anything I can do it all myself’. When asked what EGN does for her, EGP replied: ‘My son does everything for me. Everything is alright. If I need something, anything I tell [EGN] to do, make me coffee, do the shopping, he does it’.

32. EGP appeared to find the Tribunal hearing stressful. Her evidence was oppositional to any positive proposition that I put to her in relation to assistance she may require with activities of daily living. I was not satisfied that EGP fully understood or had the requisite insight into her care needs, which is consistent with the findings of health care practitioners who have examined EGP, and also in circumstances where she has been diagnosed with dementia. I have taken into consideration the views of EGP. I have placed limited weight on her views because her evidence conflicts with the occupational therapy assessments and the evidence of A and B in terms of requirement for daily drop in care twice per day. It also conflicts with the evidence of the respite care team report.

The evidence of the Public Guardian

33. The Public Guardian was represented in the hearing by Ms Carola Csanyi, Senior Guardian for the Public Guardian. Ms Csanyi said that the decision made by the Public Guardian should be affirmed. The Public Guardian’s decision concerning services was formulated as a result of the personal care requirements of ENP which are not able to be attended to by EGN in their entirety. The feedback provided to the Public Guardian in relation to whether personal care could be met was based upon a number of views leading to the conclusion that EGN could not attend to all personal care matters for his mother. EGN did not challenge this during the hearing.

34. The Public Guardian has been informed at times when private carers have attended on EGP that she has been found in an ‘unclean state and her needs not being met’. Ms Csanyi said when EGP was in an aged care facility on respite she required showering daily. Whilst EGP could attend to some of her care needs, she also required prompting. Based upon that, the Public Guardian determined it was in the best interests of EGP that her activities of daily living are best met by having a carer attend on EGP in accordance with its previous decision.

35. In coming to this determination the Public Guardian has relied upon the available medical evidence (set out below) and information provided by EGN, EGP, respite carers and A and B.

36. We find Ms Csanyi to be a reliable witness and we accept her evidence.

Evidence of A

37. A is a daughter of ENP. She said that her mother requires the level of care as determined by the Public Guardian. During the day ENP requires supervision and her mental health is an important factor which needs to be considered particularly with the ‘family drama in the home’. A said that her mother’s mental state has been affected by conflict amongst her family. She said that her brother is unable to attend to his mother’s personal care needs and at times when she has visited her mother she has found that she has soiled her underwear, particularly in relation to urinary incontinence. A said that she agrees with the health care practitioners which have indicated that she requires prompting with shower, meals, etcetera.

38. She provided the following example: ‘Mum is on a walker. She can only walk with a two wheeled walker. For making coffee she needs the walker. She eats in the lounge room and she requires supervision and cannot hold a cup of tea or coffee. She cannot enter a shower on her own, she is a falls risk on wet floor and it is not possible to shower without supervision. She cannot carry plates knives and hot water without assistance and she requires prompting with meal preparation. Whilst she wants to do it independently she requires supervision’.

39. A Statutory Declaration of A was provided in the bundle of documents relied upon by the respondent dated 5 May 2020 which I have taken into consideration. I accept A as a reliable witness.

The evidence of B

40. EGP’s second daughter also gave evidence. She fully supports the decision of the Public Guardian in terms of the services provided to her mother within her home. B said that when a carer was coming into her home it was reported to her that EGP was found with urine soaked incontinence pads on numerous occasions. She recommended to the Public Guardian that decisions concerning a higher level of services in the home be considered given the level of prompting and assistance with activities of daily living, particularly supervision, to protect her mother’s best interests. B provided an example of what she observed her mother undertaking whilst attempting to fry an egg. She said: ‘On Monday she tried to fry an egg and it looked like she was frying chips there was that much oil. She tried to manoeuvre a pan, with her using her two wheeled walker and plates and she could not manage. Mum could not manage’.

40. B concluded her evidence by saying that her mother cannot cope at home without prompting, supervision and assistance to support in most activities of daily living.

41. I accept B as being a reliable witness.

42. I preferred the evidence of A and B over EGN and EGP. Their evidence was more consistent with the views of the healthcare providers, the staff at the aged care facility where EGP was placed on respite and the Public Guardian.

Reports of Dr Nicholas Mills

44. EGN relies upon a joint report of Dr Stephanie Armstrong and Dr Mills dated 1 August 2019. In particular, he refers to a reference to EGP being ‘fully continent’. I note that the report was prepared 10 months ago and it conflicts with the more recent view of the respite care team and A and B. The report confirms that EGP requires prompting with some activities of daily living and attends to preparing the evening meal. The authors acknowledge that the report has been prepared absent an occupational therapy report. I have considered this report but the weight it can be given is tempered due to the absence of the occupational therapy review of EGP’s home environment. Dr Mills and his colleague infer that their opinion may change depending on what is contained in that assessment.

45. In an email report to the Public Guardian, Dr Nicholas Mills, Geriatrician, provided the following view (22 April 2020):

‘In regards to what is medically best for [EGP] in regards to her dementia we know that routine and structure is important and allows for a higher level of functioning and quality of life. Disruption to the instigation of routine will therefore potentially worsen [EGP’s] functional ability and inhibit the greatest qualify of life possible. [EGP] needs routine and a structured care regime instigated and the continuity of this care is vital.

[EGP] has been consistent in her views by myself in her desire to live alone and without her family. She has recorded that the clutter and belongings of her family that she is surrounded by in her current home cause her distress.

It is my opinion upon what [EGP] has described to me that an apartment is set up with care for [EGP] free of her family. Structured care will be key to the success. The family home if it has been suitably cleared and cleaned would also be appropriate once again with [EGP] living without family as per her wishes and with the structured care in place.’

46. Dr Mills in a further email to the Public Guardian (19 March 2020) opined that the importance of social interaction for EGP. Whilst vulnerable regarding Covid-19, Dr Mills would be supportive of the carers to continue as they have been to ensure socialisation for EGP.

47. Dr Mills wrote to the Public Guardian on 19 March 2020. He opines that social interaction is extremely important for the non-pharmacological management of her dementia.

48. I accept that Dr Mills opines that EGP requires some prompting with activities of daily living. His view is consistent with the majority view.

Occupational Therapy Report

49. Ms Dianna Fong, Occupational Therapist, provided a report following an assessment of EGP (20 February 2019). Ms Fong opines that EGP is a high falls risk and requires moderate assistance and prompting with items such as personal hygiene, bathing, feeding, stair climbing, dressing, bowel control and bladder control. She is independent in bed transfers but requires supervision on chair transfers, particularly with adjusting heights.

Respite stay carers

50. In an email from the Deputy Director of Nursing at an aged care facility in the south eastern suburbs of Sydney (2 April 2020) the following was recorded in relation to EGP’s two week period of respite in November 2019:

‘During her stay, [EGP] requires set up assistance with shower. She only had a shower once a week as per her choice but staff had to prompt and initiate multiple times to attend her personal hygiene care needs as she would not readily initiate. Once, she was in the shower, she was able to shower herself and staff supervised during the period to maintain her safety.

In regards to her continence management, she was using pull up continence aid as she had urge incontinence. She could take herself to the toilet. Staff would assist her checking and changing the aid each shift or as required.’

My Conclusion

51. Having considered all of the evidence and the documentation filed in the matter, I am not satisfied that I should set aside the decision of the Public Guardian made on 9 April 2020.

52. It is evidently clear in my mind that EGP requires the services as determined by the Public Guardian on 9 April 2020. This is the correct and preferable decision.

53. The evidence in my view discloses that EGP requires prompting with most activities of activities of daily living. She is a falls risk and to ensure she remains in her home as long as possible, EGP requires the additional services proposed by the Public Guardian. This is in addition to the services provided by EGN as EGP’s full time carer. EGN agreed that there are aspects of his mother’s personal care that he cannot provide. I was not persuaded that EGP is as independent in making meals and attending to other activities of daily living as contended by her and EGN.

54. I have considered the principles contained in s4 of the Guardianship Act and find that the decision of the Public Guardian promotes the welfare and interests of EGP. The decision will allow EGP to remain in her home as long as possible thereby promoting her freedom of action and decision making. She can continue to live, as far as possible a more normal life in the community, rather than being in full time care. It allows family relationships to be preserved as far as possible, although I acknowledge this is difficult given family conflict, and she can be self-reliant in attending to domestic and personal matters with limited assistance.

55. For these reasons the decision of the Public Guardian made on 9 April 2020 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: 22 June 2020