Emw v Public Guardian

[2021] NSWCATAD 68

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

EMW v Public Guardian [2021] NSWCATAD 68

Hearing dates:

5 March 2021

Date of orders:

19 March 2021

Decision date:

19 March 2021

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

C Mulvey, Senior Member

Decision:

(1) Mr B Hoyles is appointed as Guardian Ad Litem for the mother of the applicant (EMW) pursuant to s45(4) Civil Administrative Tribunal Act 2013.

(2) The decisions of the Public Guardian made on 22 October 2020 and 6 November 2020 are set aside.

(3) The matter is remitted to the Public Guardian for reconsideration.

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:

EMW (Applicant)
Public Guardian (Respondent)

Representation:

Applicant (Self Represented)
Respondent (Self Represented)

File Number(s):

2020/00333114

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 EMW on 23 November 2020. EMW is a pseudonym used pursuant to an order made under 64(1)(a) of the Civil and Administrative Act 2013 (NCAT Act). EMW is the son of a person under guardianship (the person), an 82 year old woman who resides with EMW and his wife in a home in Western Sydney. The person has four children, all of whom reside in Sydney. The person does not speak English and only Hindi.

2. The person has been diagnosed with advanced dementia and requires twenty four hour support for all activities of daily living.

3. EMW’s wife is the primary carer for the person during weekdays. EMW’s wife is a Registered Nurse and manages most of the care for the person. EMW’s wife works part-time during the day and cares for the person in the evening. During the day when EMW’s wife is at work, a Hindi speaking carer is employed 5 days a week from 8.30 a.m. to 4.00 p.m. Monday to Friday.

4. The hearing was conducted by audio visual link (AVL). The Public Guardian was represented by Ms Jessica Falla. EMW appeared in person, along with his wife, the person and two of his siblings with whom the decisions of the Public Guardian which are under review relates.

BACKGROUND

5. The history of this matter includes a number of hearings which were conducted in the Guardianship Division of this Tribunal and also by the Appeal Panel. Relevantly, a guardianship order remains in place for the person which has been most recently reviewed on 4 August 2020. At that hearing the Public Guardian was appointed as the guardian for the person. The 4 August 2020 hearing was an application requesting a review of the Tribunal’s previous order made on 16 December 2019. The Public Guardian was granted authority to make decisions for the person in the areas of access, accommodation, health care, medical and dental treatment and services. The order was made for a period of twelve months from 4 August 2020 before it is next to be reviewed.

6. The reasons for decisions published by the Guardianship Division clearly set out an acrimonious family history relating to decisions being made for the person.

7. As part of the Public Guardian’s role as the guardian for the person a decision was made with regard to access arrangements for the person on 24 September 2020. That decision involved an arrangement where EMW and his wife would have the day to day care of the person Monday to Friday. On each weekend two of the siblings of EMW, whom I identify as being A and B, were to have the care of the person on a weekend.

8. The Public Guardian was advised by one of the person’s sons, B, that he was unable to provide the level of care required to support the person on weekends and sought that the access decision and plan be modified.

9. On 22 October 2020, the Public Guardian varied its access plan such that the outcome of the review was as follows:

The person is to have weekend access with her daughter A on a fortnightly basis. The person is to be picked up at her residence on Fridays at 7.00 p.m. and returned on Sundays at 7.00 p.m.

The person is to have day access with her son B each alternating fortnight. Day access will occur on Saturday where she will be picked up at her residence at 10.00 a.m. and returned at 7.00 p.m.

Phone contact is to continue Wednesday to Friday 3.00 p.m. to 4.00 p.m.

This arrangement will commence from 23 October 2020 and replaces previous access arrangements.

10. In all other respects EMW and his wife had access and are responsible for care arrangements for the person Monday through to Friday.

11. On 6 November 2020, the Public Guardian undertook an internal review of the 22 October 2020 decision. The Public Guardian affirmed its previous decision.

12. It is these decisions on 22 October 2020 and 6 November 2020 which EMW seeks the Tribunal to review.

Appointment of Guardian ad Litem

13. On 22 December 2020, the Tribunal ordered that the person be appointed a Guardian ad Litem. To avoid any inconsistency that may arise with respect to that appointment, I order that Mr B Hoyles is to be appointed as the Guardian ad Litem pursuant to s45(4) of the Civil and Administrative Tribunal Act 2013, absent objection by any party.

The Grounds of the Request to Review the Decisions of the Public Guardian

14. EMW in his application sets out the following grounds he seeks for the Tribunal to consider with respect to the application:

1. Decision made is not in the best interest of subject person (the person).

2. Decision does not take into account welfare and interest of the person.

3. Decision reduces the person’s access to see her children who sought more access in the previous Guardianship Division hearings.

4. The Public Guardian acted unethically and outside it [sic] powers agitating family member to apply so PG can ‘get all powers’.

15. I explained to the applicant the difficulty with the Tribunal making a determination with respect to ground 4 of his application. In that regard the Tribunal has no jurisdiction to make a finding with respect to the matters contained therein. EMW withdrew that ground.

16. It was therefore the first 3 grounds which were before me to consider in this application.

Evidence

17. The applicant relied upon the following evidence:

• Application filed 23 November 2020 and annexures (A1)

• Bundle of documents with annexures filed 13 January 2021 and 7 January 2021 (A2)

18. The respondent relied upon the following evidence:

• Submissions and annexures filed by email 18 December 2020 (R1)

19. The Guardian ad Litem relied upon the following evidence:

• Submissions filed 11 February 2021 (GAL 1)

20. I also note submissions filed from interested parties, being the person’s children A and B as follows:

• Child B filed 16 February 2021 (I1)

• Child A filed 16 February 2021 (I2)

• Child A filed 15 February 2021 (I3)

21. At the commencement of the hearing it became apparent that Exhibit R1 was not contained in the Tribunal’s file. I made enquiries with the Registry and obtained a copy of Exhibit R1. EMW indicated he had not received Exhibit R1. Mr Hoyles had received that document. I requested the Registry to email a copy of Exhibit R1 to EMW. EMW was given a period of time to consider whether he was prejudiced having regard the material contained in Exhibit R1 and if an adjournment application was to be made. EMW confirmed that whilst he had not received the documents until the day of the hearing he was in a position to proceed and was not prejudiced in doing so.

22. I determined that EMW was afforded procedural fairness and elected that he could proceed with the Tribunal determining the matter. No other person raised any grounds as to why the matter should not proceed in these circumstances.

23. In addition to the documents referred to above, oral submissions were relied upon by each party and, to a limited extent, oral statements were made by child A and B.

Relevant legislation

24. 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.

25. In administering the functions as the guardian for the person, 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 access function the Guardianship Division granted authority to the Public Guardian to make for the person. 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).

26. 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 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.

   27. I am satisfied that the applicant falls within the definition of a person to whom the decision relates, the person, and that the decisions made by the Public Guardian on 22 October 2020 and 6 November 2020 are captured by that section. It enlivens the jurisdiction of this Division of the Tribunal to proceed to undertake an administrative review.

   28. In reviewing the decisions, 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).

   29. 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 EMW

30. In the submissions filed by EMW it is contended that the Tribunal should set aside the decisions of the Public Guardian which are under review and revert the access arrangements to the Public Guardian’s decision which was made on 24 September 2020. That decision would involve EMW and his wife having the day to day care of the person Monday to Friday and his two siblings, A and B, sharing the care and responsibility for the person on weekends.

31. EMW submitted that the current access arrangements do not promote the best interests of the person, primarily on the grounds that less access is afforded to the person to each of her children, particularly, where her child B, is only seeing her one day every fortnight.

32. EMW also raised concerns that an additional burden is placed upon he and his wife in circumstances where child B is only caring for his mother one day a fortnight under the current access decision. He said it is therefore left to he and his wife to arrange weekend care at times when child A and B are not caring for the person.

The views of child A

33. Child A said that she is able to provide care for her mother on a weekend every fortnight. Should that care be increased she would require an employed Hindi speaking care worker to further support herself and her mother. It was evident after submissions were made by Ms Falla on behalf of the Public Guardian that the financial manager for the person’s estate, the NSW Trustee and Guardian, has indicated there are no additional funds to support an additional carer.

34. Child A said that in her view she and her brother, child B, are able to arrange weekend care for the person should each or one of them not be available at all times to have the care of their mother on a fortnightly about basis.

The evidence of child B

35. Child B indicated to the Public Guardian that he was unable to provide overnight care for his mother due to her increased needs. This was particularly so with regard to the person waking several times during the night and potentially at risk of falling. However, after discussions taking place in this hearing, child B said that he has been providing overnight care for his mother on weekends since the new access order was made, despite the arrangement being that he would only care for his mother during the day on a weekend.

36. Child B was also of a similar view that he and his sister, child A, could come to the necessary arrangements to provide appropriate care for the person on weekends between themselves.

The submissions of the Public Guardian

37. Ms Falla relied upon her written submissions and the reasons for which the decision was made. Primarily, the decision to reduce access in relation to child B was for the reasons which are set out above.

38. Ms Falla agreed after hearing submissions of child A and child B that the matter should probably be resubmitted to the Public Guardian for further determination given that an assessment as to child A and child B’s proposal to agree between themselves round about care each weekend for their mother and a plan which could be implemented in that regard.

The submissions of Mr Hoyles - GAL

39. Mr Hoyles as indicated above was appointed as the Guardian ad Litem for the person. Mr Hoyles in both written and oral submissions provided a number of options which could be put in place in terms of decision making concerning access arrangements for the person.

40. The option which appeared to be agreed to by each of the person’s children is described in his written submissions (GAL 1) as option 2. Option 2 is described as being:

‘The second-best option is for the warring factions to have care divided into two distinct periods every week of the year (with some exceptions for block respite).

For example, ‘EMW’ and his sister ‘C’ would have exclusive responsibility for the period from 7.00 p.m. Sunday until 7.00 p.m. Friday, and ‘child C and B’ would have exclusive responsibility for the period 7.00 p.m. Friday until 7.00 p.m. Sunday.

It would then be up to each warring faction to arrange between themselves how little or much time of ‘their faction’s period’ each faction member had with the person, and whether it included overnight stays.

This is my preferred option as being in the person’s best interests in the circumstances.’

My consideration of the evidence and submissions

41. After some discussion during the hearing it became evident that the preferred option of each of the person’s family members, including EMW and his siblings, was option 2 as set out by Mr Hoyles.

42. I was also informed that EMW and his wife have put a proposal to the Public Guardian that they be given a period of respite from providing care for the person from 8 March 2021 to 3 May 2021. The Public Guardian is yet to make a determination with respect to what care arrangements will be for the person during this period.

43. The consensus view of each of the parties and participants in this hearing was that I should set aside the two decisions of the Public Guardian on the basis of the documentation and information before me. It was submitted that that would be the correct and preferable decision and that the matter should be resubmitted to the Public Guardian to make the appropriate risk assessments with respect to Mr Hoyles’ option 2 proposal and make a further decision.

44. I formed the view, having considered the matters set out in s4 of the Guardianship Act, that this is indeed the correct and preferable decision. The Public Guardian, as the appointed guardian for the person, will be in the best informed position to make a further decision concerning access arrangements for the person and to factor in the request for respite which has been made by EMW and his wife.

45. I order accordingly.

Orders

1. Mr B Hoyles is appointed as Guardian Ad Litem for the mother of the applicant (EMW) pursuant to s45(4) Civil Administrative Tribunal Act 2013.

2. The decisions of the Public Guardian made on 22 October 2020 and 6 November 2020 are set aside.

3. The matter is remitted to the Public Guardian for reconsideration.

**********

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 2021