FKS v Public Guardian

[2023] NSWCATAD 227

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

FKS v Public Guardian [2023] NSWCATAD 227

Hearing dates:

9 August 2022, 25 November 2022

Date of orders:

17 August 2023

Decision date:

17 August 2023

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

J Gatland, Senior Member

Decision:

The decision under review is affirmed.

Catchwords:

ADMINISTRATIVE REVIEW – person under guardianship – review of decision of the Public Guardian that person be accommodated at an aged-care facility – correct and preferable decision – welfare and interests of the person paramount

Legislation Cited:

Guardianship Act 1987 (NSW), ss 4, 80A

Administrative Decisions Review Act 1997 (NSW), s 63

Cases Cited:

McDonald v Director-General of Social Security (1984) 1 FCR 354

Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10

P v NSW Trustee and Guardian [2015] NSWSC 579

WL v NSW Trustee and Guardian (External) [2011] NSWADTAP 22

Texts Cited:

None cited

Category:

Principal judgment

Parties:

FKS (Applicant)
Public Guardian (First Respondent)
FKA (Second Respondent)

Representation:

Applicant (Self-Represented)
Public Guardian (First Respondent)
Second Respondent (Self-Represented)

File Number(s):

2022/00063779

Publication restriction:

The publication of the name of the Applicant and the persons subject to the decision under review is prohibited under the Civil and Administrative Act 2013 (NSW), s 64(1)(a).

REASONS FOR DECISION

Introduction

1. FJI is a woman in her late eighties living with dementia, anxiety and other physical health problems.

2. On 16 July 2021, the Guardianship Division of this Tribunal appointed the Public Guardian, the first respondent in these proceedings, as FJI’s guardian. The appointment has continued and has been expanded over time. Relevantly, the Public Guardian is required to make decisions about where FJI should reside, what health care FJI should receive, whether FJI can be subject to environmental constraints, what services should be provided to FJI, and to give consent for medical treatment where FJI is not capable of providing that consent.

3. On 15 October 2021, the Public Guardian determined that FJI should move from her home where she lived with the FKS, the applicant in these proceedings, and reside permanently at a residential aged-care facility. This is the decision under review in these proceedings.

4. Before the Public Guardian made this decision, FJI had received respite care at the same aged-care facility to allow the Public Guardian to ascertain her care needs and arrange a function assessment and geriatrician’s review. The transition into respite care occurred in about August 2021 after the provider of FJI’s home care package as well as FJI’s daughter, FKA, who is the second respondent, reported concerns about FJI’s well-being and the level of care being provided to FJI at home. FJI has lived at the aged-care facility since that time.

5. FKS is FJI’s son. About 14 months before she was moved to the aged-care facility, FKS moved into FJI’s home to look after her. He continues to reside there. In February 2022, having sought internal review, FKS applied to the Tribunal to review the Public Guardian’s decision concerning FJI’s accommodation made on 15 October 2021. In short, FKS does not consider that it is in FJI’s best interests to be accommodated at the aged-care facility and that it is her preference to reside at her home. He wishes his mother to return to her home, where he proposes to continue to look after FJI along with professional support under an aged-care home care plan or package.

6. Though not the subject of the current application, the Tribunal has been informed that the Public Guardian has decided to sell FJI’s home. That decision is the subject of a separate application for administrative review by FKS.

Issue

7. The question to be answered in this application is whether the decision of the Public Guardian made on 15 October 2021 that FJI should reside permanently at the aged-care facility is the correct and preferable decision having regard to any relevant factual material before the Tribunal and the applicable law.

8. For the reasons set out below, the answer is that the Public Guardian’s decision regarding FJI’s accommodation is the correct and preferable decision.

Legal Context

Jurisdiction and Standing

9. The Guardianship Act1987 (NSW), s 80A provides for administrative review by this Tribunal of decisions of the Public Guardian made in connection with its functions under the Guardianship Act.

10. Such applications can be made by a person whose interests are, in the opinion of the Tribunal, adversely affected by the decision. In her written submissions, the Public Guardian concedes that the FKS has the requisite standing to bring the application for administrative review.

11. In conducting the review, the Tribunal must consider the correct and preferable decision regarding the material before it, including the facts and applicable law; Administrative Decisions Review Act 1997 (NSW), s 63. The proceedings are not adversarial in nature; there is no presumption that the Commissioner’s decision is correct: McDonald v Director-General of Social Security (1984) 1 FCR 354, at 357. There is no burden or onus of proof on either party: Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10, [28] – [34].

Principles of the Guardianship Act

12. In exercising administrative review functions, the Tribunal must observe the principles set out in the Guardianship Act, s 4. This is more than an “objects” clause; it is a substantive provision: WL v NSW Trustee and Guardian (External) [2011] NSWADTAP 22 at [71]. Accordingly, it is apt to set out that provision in full:

​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.

13. In P v NSW Trustee and Guardian [2015] NSWSC 579 at [52]-[53], Lindsay J said:

The purposive character of the protective jurisdiction (including that exercised by the Guardianship Division of NCAT, and the Mental Health Review Tribunal, by legislation) is governed by a central informing idea: that the jurisdiction exists for the care of those who are not able to take care of themselves (Secretary Department of Health and Community Services v JWB and SMB (Marion’s Case) (1992) 175 CLR 218 at 258), and that an exercise of the jurisdiction affecting a person in need of protection must be for the benefit, and in the best interests, of that person as an individual, not for the benefit of the state, or others, or for the convenience of carers (Re Eve [1986] 2 SCR 388 at 409-411, 414, 425-428, 429-430, 431-432 and 434; 31 DLR (4th) 1 at 16-17, 19, 28-30, 31, 32 and 34). Implicit in the focus on a person in need of protection “as an individual” is respect for his or her autonomy.

The jurisdiction’s central, informing idea (sometimes described as the “welfare principle” or the “paramountcy principle”) finds legislative expression, in similar terms, in both the Guardianship Act, section 4 …

14. Accordingly, the welfare and interests of FJI must be the paramount consideration for the Tribunal with the intention that the Tribunal exercise its powers to ensure as much self-determination and choice as possible are afforded to the protected person. Expressly, the Tribunal should take no account of the interests, benefits or convenience of others.

Relevant Facts

Evidence before the Tribunal

15. The Public Guardian tendered a bundle of documents previously filed pursuant to the Administrative Decisions Review Act, s 58 (s 58 Bundle). This was admitted without objection, and the Tribunal has considered all of that material. The s 58 Bundle included:

1. Documents relevant to the decision under review, including notice of the decision, the internal review, FKS’s objections and other related correspondence, and a copy of FKS’s application to the Tribunal.

2. Other decisions made by the Public Guardian, including a copy of the notice of the decision to sell FJI’s home dated 19 May 2022.

3. Correspondence received by the Public Guardian recording concerns by the home care package provider, an accommodation proposal submitted by FKA in which she also outlined concerns with FJI continuing to reside at home in the care of FKS.

4. Correspondence received by the Public Guardian from the aged-care facility, FJI’s doctors and other professionals, and from KHS and KFA.

16. The Public Guardian also tendered the notice of decision on review dated 2 August 2022 concerning the decision to sell FJI’s home to meet, among other things, her accommodation costs, including the refundable accommodation deposit, of living at the facility.

17. FKA provided a written statement and appeared at the first day of the hearing of this matter and informed the Tribunal that she supported the decisions made by the Public Guardian in respect of her mother’s accommodation and that she opposed FKS’s proposal to have FJI return home and reside with FKS, under his day-to-day care.

18. FKS provided the Tribunal with several documents by way of evidence and submissions. He also provided recordings of his phone calls with FJI and some video footage of FJI when visiting her in the facility. The Tribunal has read all the written material, listened to the recordings and viewed the video footage. While lengthy, the submission of FKS may be summarised as follows;

1. Until she went to respite care in August 2021, FKS was taking care of his mother, FJI, and the care she received from him was sufficient to allow her to live in her own home and familiar surroundings comfortably and happily. In other words, the arrangement, which FKS refers to as “informal means” where FKS looked after FJI, “were working”.

2. If FJI were to return to her home, FKS would take all steps in his power, both physically and financially, to ensure she was properly taken care of and could lead a happy and safe life for as long as possible. In this regard, FKS detailed many steps he had taken and was prepared to take. He emphasised his meticulous attention to FJI’s nutritional, health needs, hygiene and safety while having regard for her autonomy as far as was safe and practical.

3. He had been the subject of falsehoods by FKA and other people, particularly the home care package provider who had colluded with FKA, with the effect that FJI was removed from her home to stay at the aged-care facility unnecessarily and against her wishes.

4. The circumstances of FJI’s removal to the aged-care facility were unacceptable since the police had to be called, and this distressed FJI so much that she was in tears when taken from her home to the aged-care facility in FKA’s car.

5. The aged-care facility had impermissibly restricted FKS’s access to FJI by telephone, and this had been detrimental to FJI’s welfare, especially given the lack of visitation during the COVID-19 restrictions.

Factual Findings

19. FJI is an elderly woman living with dementia, anxiety, and other health problems. Her condition will likely continue to deteriorate, consistent with her age and the course of the diseases from which she suffers. Her treating geriatrician, Prof Potter, reported to the Guardianship Division of this Tribunal in early August 2021 that FJI, had severe dementia (likely Alzheimer's Disease) that was progressing slowly and that FJI had had this condition since 2017. Additionally, Prof Potter reported that FJI suffered from anxiety, was unable to make logical decisions, required support to make any decisions or comply with medications and required support and supervision for all her daily activities.

20. In October 2019, under the care of Prof Potter, FJI was administered a memory and cognitive screening test known as an MMSE in which she scored 14 marks out of a possible 30. The Tribunal was not given evidence as to the precise meaning of this score. Still, from a review of the individual responses, it is apparent that, at least as early as October 2019, FJI was not able to recall basic information, such as recalling three words after five minutes had lapsed, nor carry out higher-level instructions such as accurately copying two intersecting pentagon shapes. In her report to the Guardianship Division of this Tribunal in early August 2021, Prof Potter noted the score of 14/30 for the last face-to-face MMSE performed in late 2019 “with deficits in orientation, attention and calculation, recall, written language skills and construction” and that the most recent appointments with FJI had been conducted via telehealth due to COVID-19 restrictions including the most recent appointment on 8 July 2021 at which the geriatrician stated, “further deterioration noted in language but formal MMSE not done”.

21. On 29 July 2020, FJI agreed to undertake an aged-care assessment team (ACAT) assessment due to her declining physical and cognitive functioning. Due to COVID-19 restrictions, however, the assessment occurred over the telephone and by reference to various documents and information provided by FJI and FKS. In the course of the ACAT assessment, a standardised MMSE was conducted on FJI, arriving at a score of four marks out of a possible 23. The assessment notes that such a score is consistent with severe dementia. However, I approach that score with caution since the ACAT report qualifies that concluded score by noting the delivery of the examination was by telephone to a person who has difficulty processing language by telephone. Accordingly, I prefer the findings recorded by Prof Potter that, in July 2021, FJI had severe dementia and that since October 2019, there had been some further deterioration in FJI’s language skills but that this was not quantified to a MMSE score.

The Public Guardian’s initial decision to move FJI for respite care

22. In mid-August 2021, the Public Guardian was advised by the home-care package provider that it had concerns about FJI’s health and well-being and the level of care provided, which the provider believed was inadequate to meet FJI’s increasing needs. That advice, as well as a proposal by FKA for FJI to receive some respite care at an aged-care facility close to FKA’s home, led to the Public Guardian permitting FJI to be admitted for respite care into the aged-care facility where she has remained ever since. Later, the Public Guardian received from the in-house lawyer of the home-care package provider three reports in the form of care-worker notes from that period. The first note suggested that FJI was suffering from anxiety-related behavioural problems, which are not presently relevant. The second and third notes recorded observations of care workers about an incident that occurred on 5 August 2021, which tended to show that FKS was struggling with his own health in addition to having to care for FJI and that this was impacting upon the quality of care afforded to FJI. Those notes are significant, and accordingly, I extract them here with the original redactions and changing the names of the protected person and the applicant to conform with their anonymised references in this decision:

1. Note 1

5.08.2021 – comare note entry by [redacted name] –

This afternoon 2 care workers, [redacted name] and [redacted name] arrived for FJI’s visit and knocked on the door. FJI was on the other side of the door and is unable to unlock the door due to her dementia. There is glass panels on the door and you can see her through the door The care workers then heard FJI”s son, FKS start screaming at her to go back into her room as he is trying to sleep and then he physically chased her away from the front door into the loungeroom. Clearly, FKS did not know the care workers were there. They continued to knock and he came to the door and said he thought he had cancelled the visit. He told the care workers that he is sick and his mother keeps waking him up and he doesn’t normally do that. The care workers explained that FJI doesn’t understand as she has dementia and he is sleeping in the middle of the day. They suggested that he needs to call someone if he is not coping to get some support. He said he doesn’t want to as his sister is trying to get his mother placed in a nursing home. The care workers checked on FJI before leaving and she was physically fine and seemed like she has forgotten the incident.

I have notified FJI’s daughter FKA of the incident. Email sent to the public guardian also.

2. Note 2

5.08.2021 – care worker note

myself and [name redacted] arrived at 13.15pm when we knock on the door FJI was at the door but not opening it. We knock several times and we hear FKS yelling to FJI from the top of the stair and we can see from outside that he was chasing her to the lounge/kitchen still yelling. FKS came back to the door then said he need to put clothes on. When he comes out he keeps talking that he didn’t normally yell at her that he has kidney stones and he need rest. FKS said to due covid delta version he cancel the social visit. we told him to call in speak to the care manager and put forward all his concern, and if he wants respite care he need to arrange that. we drive around the corner and call the office and report to [name redacted], [name redacted] and [name redacted].

23. While the FKS shouting at FJI is likely an isolated event, the incident demonstrates the difficulty of caring for a person with dementia when the carer also has ongoing health problems. The incident is one example that shows that FKS may not be best suited to look after FJI in her home. FKS informed the Tribunal that he received a disability support pension for the last eight years due to suffering from anxiety, chronic fatigue and osteoarthritis. He informed the Tribunal that he was allowed to work one day per week but was prepared to devote all his time to the care of his mother. It is unclear why FKS’s health problems should have resulted in the cancellation of the social outing for FJI with the home care provider; it is unclear why FKS had not sought additional support in this instance when he was sick himself, though he did tell the Tribunal that he had contacted FKA for support “and she twisted it”, presumably by proposing to the Public Guardian that FJI receive respite care.

24. The Public Guardian accepted FKA’s proposal for respite care after seeking, but not receiving, any response from FKS concerning the proposal. While FKS spent many pages in his written submissions complaining about how the Public Guardian had not waited to review his very detailed submissions, the Public Guardian’s conduct in that regard is not relevant.

25. However, it was not ideal that the proposal put forward by FKA and accepted by the Public Guardian was for an aged-care facility close to FKA – and consequently at some distance from FKS. It would have been preferable for respite care and, later, permanent care to be arranged at a location more proximate to FJI’s home or, as far as possible, equidistant between where FKA and FKS reside. Having regard to the principles set out in the Guardianship Act, s 4, it was in FJI’s interest to ensure that both her adult children (and other family members) could conveniently visit FJI, as this would tend to ensure more regular physical visits. Physical visits appear important to FJI, given her obvious affection for FKS and FKA and her difficulty processing information over the telephone. The Public Guardian should have considered these matters at the time of determining where she should be placed for respite care given, firstly, that it is relatively common for respite care to be extended or transformed into permanent care and; secondly, that moving a person with dementia, including moving back home, may result in further decline, distress and disorientation.

FJI’s entry into respite care

26. By all accounts, FKS resisted the removal of FJI from her home to go into respite care. The following is the written account provided by FKS to the Tribunal of what occurred on 19 August 2021, when FKA came to collect FJI from her home and drive her to the aged-care facility for respite:

What an outrage [the officer responsible at the Public Guardian] just rolled over Mum and myself ignoring what we said. Then got a Court Order. I messaged my sister not to come. She did come eventually and four police officers arrived to enforce the Court Order placed by [the officer responsible at the Public Guardian]. So Mum, an 87 year old woman was forced from her home of 55 years at her front door and escorted to my sister’s car by police officers, with her wondering what was wrong, crying as she left. So then I was in shock and there were more shocks to come for me. [original emphasis removed]

27. The account provided by FKS suggests that the Public Guardian called the police to attend to enforce the decision or order and to assist FKA in collecting FJI in a car. That is not true. To the contrary, it appears, from the findings of two decisions in the Guardianship Division of this Tribunal, that it was FKS who called the police, thereby creating a situation that was obviously and unnecessarily distressing for FJI. Contrary to his account to this Tribunal (as set out above), FKS had told the Guardianship Division of this Tribunal on 25 August 2021 that he had called the police because he was concerned respite care would become permanent, and that is why he refused respite care.

28. While this shows FKS’s passionate concern for his mother, it equally shows his willingness to cause FJI unnecessary upset and distress to have his preference, and what he perceived as FJI’s preference, followed. At the hearing, he did not show any insight that, by calling the police, he had been the principal cause of his mother’s crying and becoming distressed. The Public Guardian, having determined it was FJI’s welfare and interests were best served by receiving respite care, was obliged to proceed with that course. The Public Guardian had arranged for FKA, who would be familiar and comforting for FJI, to take her to the aged-care facility for respite. FKS could have assisted his mother’s transition to respite by not increasing conflict and distress even if he did not support the decision. Instead, he called the police in an action that could only upset FJI as she left with FKA. FKS’s willingness to take steps that would distress his mother to achieve a perceived victory in a family conflict or dispute with the Public Guardian is profoundly troubling. It is another example that leads to the conclusion that he would not be the proper person to care for FJI on an ongoing basis, thus making her return to her home where FKS also resides inappropriate.

FJI’s condition while in the aged-care facility

29. On 7 September 2021, a physiotherapist at the aged-care facility noted that FJI had a diagnosis of dementia and that she:

has difficulty with most tasks of daily living, STM [short-term memory] loss, problem solving losses, Anxiety, Good mobility however requires assistance with direction, way finding and will wander. Difficulty initiating tasks and with sequencing.

30. On 27 September 2021, Dr McLaren, who attended the aged-care facility, reported that FJI was in good health, had settled into her new surroundings “very well”, and had gained some weight. The attending doctor posited that the weight gain was attributable to better care. FKS says FJI was already gaining weight before she left. He did not provide, however, any independent evidence or record about this. In November 2022, by way of supplementary evidence and submissions, FKS said he had measured FJI’s weight and reported that it had declined by 2.3 kg in about three months. I do not consider the weight gain or loss in a person with dementia a substantial indicator of the quality of care. Many factors, including the course of the disease, can impact upon weight. Based on her observations and expertise, I accept Dr McLaren’s overall impression that FJI was settling into the aged-care facility and that the care she was provided with at the aged-care facility was meeting her needs in an optimal fashion.

31. On 25 October 2021, an assessment report for restrictive practice assessment and conference prepared by staff at the aged-care facility observed that FJI had severe cognitive impairment with evidence short-term memory loss, long-term memory loss and confusion. FJI was disoriented as to time and place and was not able to recall her living quarters. The Tribunal was not provided with this report at the hearing on this application. Still, it was summarised in the Tribunal’s decision of 29 April 2022, further extending the appointment of the Public Guardian as FJI’s guardian.

32. In a behaviour assessment report initiated by a staff member on 8 November 2021 and completed by the deputy residential service manager at the aged-care facility on 16 November 2021,

1. FJI was observed as having:

Severe STML [short-term memory loss] and confusion, and word finding difficulties. She lacks insight into her assessed needs and risks.

2. The same report stated that confusion and anxiety triggered physical behaviours consistent with confusion and anxiety, including; wandering and shadowing, intensively questioning staff, seeking exits, seeking the toilet, wandering into other resident’s rooms, resisting medication, being reluctant to accept care, insisting she has not been feed immediately after eating, guarding uneaten food and accusing staff of stealing plates and cups, accusing staff and other residents of entering her room without permission, becoming physically agitated, getting up and down or fiddling with clothing or objects, becoming unable to relax and forgetting or not wanting to eat. The behaviours occurred at the aged-care facility at least twice daily.

3. To address these triggers and behaviours, the aged-care facility noted in the same report the following interventions; providing a regular routine, prompting and redirecting her to simple activities such as setting the table, keeping her environment calm and quiet, speaking to her in simple sentences using a soothing tone, engaging FJI in activities that are meaningful to her, providing social connection and scheduled toileting.

4. A “care domains” section of the report notes that FJI requires significant nutritional, hygiene and continence care levels. All of which appear to be consistent with her level of cognitive impairment and other needs.

5. Finally, the report notes that FJI requires environmental restraint. This requires her to be in a locked unit where she can participate in activities and go outside into a garden without the danger of being locked in or locked out, without the anxiety of losing her bearings and becoming lost and distressed. I note that when FJI was living at her home, she was observed being locked in and that, at some time before FKS’s arrival, she had been found wandering at the nearby shop without the ability to find her way home.

The decision to accommodate FJI in the aged-care facility permanently

33. On 15 October 2021, the Public Guardian decided that FJI should be permanently accommodated at the aged-care facility. As noted above, this is the decision under review.

34. Before making this decision, it is apparent from the evidence tendered at the hearing that the Public Guardian explored options for FJI concerning her care needs. This included making inquiries of the following nature:

1. for an increase to the home care package to level 4 (whereas she had been only approved by the ACAT assessment for a level 2 home care package). The current home care package provider informed the Public Guardian that they could only submit a re-assessment for a level 3 package and that this would have “at least a 9 – 12 month wait”. Further, the Public Guardian was informed FJI would not be re-assessed by ACAT while in respite care; she would need to return to her home before a request for re-assessment could be submitted; and

2. to receive reports and views from FJI’s treating geriatrician, Professor Potter.

35. From the evidence tendered by the Public Guardian, it is clear that it would not have been in the interests of FJI to return home and be cared for by FKS with a level 2 home care package. Likewise, it would not have been inimical to the welfare and interests of FJI to wait between nine and 12 months for a re-assessment by ACAT to a higher-level home-care package. In the circumstances, the Public Guardian chose the course that would ensure that FJI received the care she needed and would meet her social and health needs.

FJI’s condition and needs as of the date of hearing

36. At the hearing in August 2022 and the resumed hearing in November 2022, there was no evidence that FJI’s cognition had improved or that she had entered a decline of any significance since the report had been prepared. FKS referred the Tribunal to the report of Prof Potter, FJI’s treating geriatrician. Prof Potter sent an email to the Public Guardian in September 2021, stating that most of her consultations with FJI had been in the presence of FKS and that FKS had “felt they were managing well”. While Prof Potter observed that there was nothing raised in her consultations with FJI to suggest otherwise or that FJI was required to be accommodated in an aged-care facility, she qualified her observation on the basis that she has not reviewed FJI since she had been in respite care. There was some suggestion in the material before the Tribunal that Prof  Potter was to review FJI while in respite care. From the papers, it seems FKS may have been meant to arrange this review; however, that review did not occur for reasons that were not explained. I do not assign any weight to whether or not FKS intended to arrange for this review; however, it is apparent that after examining FJI in the aged-care facility, Prof Potter's opinion would have assisted the Tribunal in reaching its decision.

37. FKS told the Tribunal in response that FJI was relatively independent; she could eat, toilet and move around on her own. He said that feeding FJI or assisting her with feeding was “ like babying her” and that he was concerned that without using her skills of feeding herself, going to the toilet and washing her hands herself, she would lose those abilities. In support of his submission, FKS relied on a short video he took of FJI at the aged-care facility, where she says she has just visited the toilet and washed her hands. FKS’s submission showed an unrealistic view of FJI’s abilities, the progress of dementia as a disease and his ability to undertake the role of primary care of a person while he, too, suffered significant health problems. FKS did not engage with the volume of material provided by the aged-care facility concerning the care needs of FJI, in particular, her need to be spoken to calmly. FKS’s submission also did not address the anxiety-related behaviours exhibited by FJI and observed by staff at the aged-care facility concerning food, guarding of uneaten food and toileting.

38. FKA informed the Tribunal about some incidents with FJI when she was living at home, including that she would find FJI lying curled up and very cold, as FKS did not want the heater turned on. FKS did not dispute this.

39. FKA also told the Tribunal that she once had to attend FJI’s house after being called by a neighbour who saw FJI banging on her windows from the inside. While FKS submitted in reply that this incident occurred before he moved in, or that the neighbours did not understand what was happening. FKA’s evidence suggests that this occurred when FKS was living there. I prefer the account provided by FKA since it is more likely that she would recall when she received a call of that nature while at work.

40. FKA told the Tribunal that she had observed, during her visits to FJI at the aged-care facility, that FJI’s symptoms and behaviours related to her anxiety had reduced considerably. She stated she considered FJI to be “far better” at the aged-care facility, though FJI still suffers from some anxiety symptoms. FKA told the Tribunal that when she visits FJI in the aged-care facility, FJI sometimes says, “I am worried” or “Oh, something’s wrong”, and FKA will ask FJI what she is worried about, but FJI is not able to say. FKA also stated that when visiting her mother at the aged-care facility, she will usually stay and assist her with eating a meal as her mother has trouble, sometimes, feeding herself or forgetting to eat.

41. I accept FKA’s evidence on these matters and have concluded that while FJI continues to experience anxiety, this is managed better at the aged-care facility than at home and that FJI needs assistance with feeding and being reminded to eat and that providing assistance of that kind is not treating FJI as an infant but instead is the preferable response to meet her care needs.

FJI’s views and preferences

42. There was controversy as to FJI’s views and preferences concerning her accommodation.

43. The officer responsible for FJI at the office of the Public Guardian conducted two interviews with FJI by video call to ascertain her views on her accommodation.

1. The first video call occurred on 9 September 2021; however, a copy of the contemporaneous report is not in the evidence before the Tribunal other than in summary form. In passing, I note that using a video call may not have allowed FJI to understand what was happening properly; the Public Guardian also recognises this. I have assigned less weight accordingly to this evidence than I would otherwise give such material. The reasons for decision record that the Public Guardian asked FJI whether she liked it at the aged-care facility, to which FJI replied: “yes, it is lovely here, and the people are very lovely, and the Public Guardian is also very lovely”. When FJI was asked about her home and whether she would like to return to it, FJI appeared unsure about where home was or what it meant. When asked if she remembered FKS, FJI replied “oh yes, FKS is my son and he lives a long way away,” she was unsure whether FKS lived with her at home.

2. The second interview by video call took place on 5 October 2021. For their information, FKS and FKA were provided with an email containing a report of the interview that day. Once again, regarding the use of a video call, FJI may not have properly understood what was being put to her, and I have assigned less weight to this evidence than I would otherwise give such material. The officer responsible reported the interview in the following terms, noting the Tribunal has used its acronyms in place of the names of the parties and the protected person:

FJI looked well and happy. FJI was smiling a lot and said she had just been to yoga. FJI liked to join in all the activities.

FJI does not seem to understand the conversation and catches bits of the conversation and talks about that. FJI advised [the officer responsible] that she liked being at [the aged-care facility].

[the officer responsible] asked FJI if she remembers her son, FKS and FJI said yes, FKS. [the officer responsible] asked FJI if she remembered living with FKS. FJI said she did. [the officer responsible] asked FJI if she would like to go back home with FKS, and FJI said no, things were different now, and she wanted to stay at [the aged-care facility].

[the officer responsible] didn’t speak for long as clearly FJI is not really able to follow the conversation, although FJI was smiling a lot and said [the officer responsible] looked nice.

44. The overall impression gained from this material is that FJI is, consistent with the reports from Dr McLaren and the aged-care facility, settled and happy to reside there.

45. FKS tendered six short videos and three short phone recordings of conversations he had with FJI that demonstrated that FJI was not happy to live at the aged-care facility and that her preference was to return home and be cared for by him. In November 2022, FKS made further submissions concerning the operation of those files. None of those submissions is relevant, the files received by the Tribunal worked adequately, and the sound and vision in the audio were synchronised. While preparing these reasons, the Tribunal reviewed these recordings and video footage further to ensure an accurate impression of that material.

46. The Public Guardian made the following submissions concerning the recordings submitted by FKS;

1. Save for one occasion, on 15 February 2022, it was not clear that FJI was aware of, or to the extent she could provide consent, gave consent to be recorded or filmed;

2. Each recording contained a common theme: to elicit a response that FJI did not want to live in the aged-care facility and that FKA had been responsible for placing FJI in the aged-care facility. The Tribunal notes it is well recognised that people suffering from cognitive impairment, such as those with dementia, are vulnerable to suggestion;

3. In seeking to elicit those responses, it was reasonably clear that FJI had been caused distress;

4. It needed to be clarified what had preceded the recordings to elicit the responses recorded.

47. I agree with those submissions; consequently, I do not assign significant weight to the recordings.

48. To the extent weight is given to them, the effect of the recordings on the Tribunal’s consideration was two-fold:

1. Firstly, the video footage taken while FJI was a resident at the aged-care facility showed FJI near a neatly-made bed in a clean room painted in muted colours and free of obstacles, with her own en-suite toilet that she could (and once, did) readily access. Some footage shows the floor as a hard surface that looked clean and free of trip hazards and clutter. The room seemed neither overly bright nor dimly lit. Each of the six videos shows FJI as an elderly and slightly frail woman whose hair is tidy; she was wearing clean, modern clothing and footwear appropriate for warmth and comfort. In the footage, FJI appeared to be comfortable, clean and groomed. Accordingly, the Tribunal is satisfied that the physical care provided to FJI in the aged-care facility is reasonable and likely to promote her health and personal care.

2. Secondly, FKS can be heard prompting or leading FJI with statements such as “you don’t look happy, Mum” (repeated twice) and saying things such as “[FKA], your daughter, put you there” or “I did not put you there, FKA and some government people put you there” and similar formulations; in response to which FJI can be seen becoming agitated and upset as she wrings her hands, or holds her head in her hands or appears almost to cry or become upset. When asked by the Tribunal why he repeatedly said things to FJI that effectively blamed FKA for placing her in the aged-care facility, even though that was a decision of the Public Guardian and even when FJI was clearly becoming agitated and distressed by those comments, FKS explained to the Tribunal that he said these things because “I didn’t want her [meaning FJI] to think I had put her there”. This answer, and the footage, which FKS thought would support his application, instead provided significant examples of how willing FKS was to cause his mother distress without regard for her welfare or happiness and led to the conclusion that FKS does not prioritise the welfare and interests of FJI in terms of her emotional and social well-being. Accordingly, it would not be suitable for FJI to be moved back home into the care of FKS.

Consideration

49. As a consequence of her dementia and anxiety, any change to FJI’s accommodation is a matter to be considered with caution having regard to the risk that any such change or move will cause her to become further disorientated and distressed and may lead to a deterioration in her health and wellbeing. An example of how distressing it could be for FJI to leave the aged-care facility, even for a short appointment, was demonstrated by the Deputy Residential Services Manager's email to the Public Guardian in December 2021. The circumstances of that email were that FJI had refused to receive a second dose of a COVID-19 vaccine and had become “physically and verbally aggressive toward the doctor”, attempting to administer the dose. It seems from the email that FKA had offered to take FJI to a private appointment outside the facility to obtain her second dose. In response to this, the Deputy Residential Services Manager stated that:

[FJI] displays paranoia and is very distressed if taken out of her familiar environment which causes aggression.

I believe the risk of aggression to [FKA] and her safety in a car would be high risk to receive her Covid vaccination. …

50. Further, if she were to return to her home, there would need to be evidence that this would not deleteriously affect her health and interests. FKS gave detailed evidence and made submissions that, in summary, he was ready, willing and able to continue caring for FJI in her home. He also stated that FJI’s condition was no different at the time of the hearing than it had been when he returned home to care for her (which would be a period of more than two years from the date of the hearing). I do not accept this assertion; it conflicts directly with the report of Prof Potter and the observations of the home-care package provider, FKA and the staff at the aged-care facility. The Tribunal’s observations of FKS at the hearing and FKS’s submissions reflect the finding made by the Guardianship Division of this Tribunal that FKS;

Appeared to lack insight into [FJI’s] high support needs and disagreed with the written evidence that [FJI] requires assistance with all her activities of daily living. He would not seek the view of his sister before making any decision or take relevant information into account.

51. Despite supplementing his evidence in November 2022, FKS did not produce evidence, for example, a report of a geriatrician, that would inform the Tribunal that removal from her present accommodation back to home would not cause FJI distress or that, having regard to the course of her dementia, FJI would receive more suitable care if she were to return home. Conversely, there was significant evidence to conclude that it is in the interest of FJI that she stay in her present accommodation and that her social, personal and health needs were being met in the aged-care facility.

52. FKS’s evidence and submissions were to the effect that he was willing to do anything to bring his mother home. The only circumstances in which FKS has contemplated FJI returning home is where he lives with her and undertakes the primary caring role. While that may be an understandable impulse of a dedicated son, it fails to account appropriately for the following:

1. his limitations arising from his health; and

2. the fact that a higher level of support will not be able to be assessed for an extended period. While FKS proposed that he top up the cost in the interim, he provided no evidence of his financial ability, as a long-term disability support benefit recipient, to do this; and

3. that FJI’s condition will deteriorate over time; and

4. that the conflict that exists between FKS and FKA results in FKS being an isolated carer who cannot readily turn to FKA for additional support when needed nor assist in minor care-related decision-making; and

5. FKS’s role as a live-in carer limits FJI from enjoying time with FKA, absent conflict and tension and

6. The Tribunal’s conclusion that he would not be the appropriate person to provide day-to-day care for FJI.

Conclusion

53. Having regard to the principles set out in the Guardianship Act, s 4, the material before the Tribunal, and absent any reliable and recent evidence to the contrary, I have concluded that it is not in FJI’s interest to be moved from her present accommodation and accordingly, it is not in the interests of FJI to be moved back to her original home.

54. Accordingly, the Public Guardian’s decision notified on 15 October 2021 regarding the accommodation of FJI should be affirmed.

Order

55. 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: 25 August 2023