FPW v Public Guardian

[2023] NSWCATAD 225

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

FPW v Public Guardian [2023] NSWCATAD 225

Hearing dates:

6 April 2023

Date of orders:

23 August 2023

Decision date:

23 August 2023

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

C Mulvey, Senior Member

Decision:

The decision under review is affirmed.

Catchwords:

ADMINISTRATIVE REVIEW – correct and preferable decision – s4 Guardianship Act principles – welfare and interest of subject person – decision to place subject person into aged care

Legislation Cited:

Administrative Decisions Review Act 1997

Guardianship Act 1987

Cases Cited:

McDonald v Guardianship Administration Board [1993] 1 VR 521

Texts Cited:

None Cited

Category:

Principal judgment

Parties:

FPW (Applicant)
Public Guardian (Respondent)

Representation:

Solicitors:
FPW (Applicant)
Mr Griffiths (Respondent)

File Number(s):

2022/00343737

Publication restriction:

The publication or broadcast of the name of the Applicant and his mother is prohibited pursuant to s64(1)(a) of the Civil and Administrative Act 2013 (NCAT Act).

REASONS FOR DECISION

1. The following reasons for decision relate to an application filed by FPW on 11 November 2022. FPW is a pseudonym used pursuant to an order made on 20 December 2022 under 64(1)(a) of the Civil and Administrative Act 2013 (NCAT Act). FPW is the son and only child of a person under guardianship (the Person), an 83 year old woman who resides in an aged care facility in Sydney. Prior to admission to aged care on 10 November 2020, the Person resided with FPW in her home. FPW continues to reside in the home. 

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

3. The hearing was conducted partly by audio visual link (AVL) and in-person. The Public Guardian was represented by Mr J Griffiths who appeared by AVL. FPW appeared in person.

BACKGROUND

4. The history of this matter includes a number of hearings which were conducted in the Guardianship Division of this Tribunal. A guardianship order was first made for the Person on 15 October 2020. The guardianship order has been reviewed on a number of occasions. The guardianship order was most recently reviewed on 9 September 2022. At that hearing the Public Guardian was re-appointed as the guardian for the Person. The Public Guardian was granted authority to make decisions for the person in the areas of accommodation. The order was made for a period of twelve months from 9 September 2022 before it is next to be reviewed.

5. As part of the Public Guardian’s role as the guardian, a decision on 10 November 2020 for the Person to be admitted into an aged care facility. The Person has remained living in the same aged care facility since that decision was first made. Immediately prior to transitioning into aged care, the Person had been admitted to a hospital in Sydney with delirium and following a fall at home. Reports of carer stress were also made at the time of her admission to hospital. The relevant carer being FPW.

6. In making the decision for the Person to enter aged care, the Public Guardian relied upon an opinion from the Person’s general practitioner (“GP”) that it was “impossible for her to go home” referring to the Person. The GP was of the opinion that the Person has advanced dementia, requires 24/7 care and that she is more suitably placed to be admitted into an aged care facility.

7. In a report provided to the Public Guardian by the Person’s consulting geriatrician dated 20 September 2022, the Geriatrician opined “ She could not complete a formal cognitive assessment. … In conclusion [the Person] suffers from advanced mixed dementia, most likely Alzheimer’s disease and vascular dementia. Her condition is progressive and not reversible. [The Person] cannot make decisions about her accommodation and lifestyle. [The Person] cannot manager her finances. [The person] requires 24-hour care and supervision.”

8. The General Manager of the aged care facility where the Person resides is of a similar view. On 7 October 2022, the General Manager in an email to the Public Guardian setting out “…She needs close supervision and nursing care 24x7, She will be at high risk of fall & injury if she is taken home and left alone, She has got some behaviours related to Dementia which needs trained nurses to manage, In my view, it will not be in [the Person’s] best interest to be taken home & live with her Son due to risks involved.”

9. In the aged care facility Care Plan and Summary Report dated 27 August 2022, the views of the General Manager are supported. The plan reveals that the Person is doubly incontinent. The Person requires assistance with all activities of daily living, prompting and supervision with her mobility and transfers.

10. The Public Guardian submits that the decision made on 26 September 2022 to refuse a request by FPW to allow the Person to reside at home with him, was made for the same reasons which are set above.

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

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

It is to make my mother happy at home with me being carer to along [sic] with home care package our 24 hour plan will work via me- friends family will only be sometimes.

Evidence

12. The applicant relied upon the following evidence:

• Application filed 11 November 2022 and annexures

• Email filed 17 January 2023

13. The Public Guardian relied upon the following evidence:

• S 58 material filed 31 January 2023

14. The Public Guardian filed written submissions.

Relevant legislation

15. 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.

16. 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 accommodation function the Guardianship Division granted 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).

17. 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.

18. 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 26 September 2022 and 4 November 2022 are captured by that section. FPW sought internal review of the 26 September 2022 decision in accordance with s 55 of the Administrative Decisions Review Act 1997 (“ADR Act”). It is this decision which is under review. The jurisdiction of this Division of the Tribunal to proceed to undertake an administrative review is, therefore, enlivened.

19. 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 ADR Act).

20. 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 FPW

21. FPW filed the initiating application, an email dated 17 January 2023 (annexing phone numbers of possible carers, a letter form My Aged Care 19 July 2022 and a client service agreement for Australian Unity dated 31 August 2022) together with the decision under review.

22. He made the following oral submissions.

23. FPW said “overseas journal’s state that if you do not want to go to a nursing home and stay at home you can go home. Mum does not want to stay at the nursing home. The journals indicate that people are happier living at home with family and they have a better lifestyle.”

24. I asked FPW what the proposed care plan was if the Person was to live with his mother at home. FPW said that he would be the key person to look after his mother. He would arrange for Australian Unity, an in home care provider, to visit three times per week for 8 hours a day. That service can also provide 5 hours emergency assistance if needed. Australian Unity staff would do personal cleaning (down below) and provide special care and attention.

25. FPW said he has family across the road and friends to help as well. He said: “I will never leave her at home by herself.”

26. I asked FPW to identify his mother’s care needs, he replied: “She needs a lot more attention – take an interest in her. Special attention taking her out more days, wheelchair, no wheelchair. I want to get her more motivated and get her into more social life.”

27. FPW said he is on the pension and has time to care for him mother.

28. I asked FPW how he would manage his mother’s dual incontinence. He said: “I think in the home environment she will come round more. I can help keep her clean and wash her face. I used to help her before with the toilet. I know she needs to be changed. She goes to the toilet and pulls her pants up herself. I don’t know if she would need to use pull ups (incontinence aids) around the house.”

29. FPW denied his mother was a falls risk despite the overwhelming medical evidence to the contrary. He said: “mum used to drink a bit of wine. At home mum would only fall when she had been drinking, only on very rare moments. She feels worse at the aged care facility which might make her fall. In the house she does not fall much at all. If she falls, I will put a pillow under her and call an ambulance if I could not get her up. I would put a big rug on the kitchen floor which might help.”

30. He concluded by stating, as he did on many occasions through his submissions: “Regardless of all of these things it is a rights issue, she has the right to go home. She doesn’t have to stay, it is her rights to go, the bottom of the line is it’s a rights to go issue.”

31. I formed the impression that FPW has a deep love for his mother and is trying as best as he can to respect his mother’s wishes that she reside at home with him. I accept that FPW believes that his mother wishes to return home. However, the Person’s views and wishes must be closely weighed with the s 4 principles as set out in the Guardianship Act. Notwithstanding FPW’s desire to provide for his mother in her own home, I am not satisfied that her needs can satisfactorily be met in the community. My reasons are more fully set out below.

The submissions of the Public Guardian

32. The Public Guardian submits the real issue to be determined is whether the decision for the Person to remain living in the aged care facility, and not with FPW, is the correct and preferrable decision.

33. The Person has a diagnosis of vascular and alcohol related dementia. In the initial guardianship hearing in October 2020, the geriatric registrar (“DR L”), found that the Person lacked insight into her care needs; has reduced attention; short and long term memory deficits; problems with complex functioning; word finding difficulties and executive functioning deficits. On that basis, Dr L submitted that the Person did not have decision making capacity.

34. The Tribunal accepted evidence from a social worker that, on 25 August 2020, the Person was admitted to hospital following a fall at home precipitated by delirium and alcohol misuse. It was the treating team's recommendation that the Person be provided 24-hour care in a supervised environment, which she had otherwise consistently refused. The treating team was of the opinion that the Person’s family was unable to provide the appropriate level of support and supervision in the community.

35. In October 2020, the Person scored 6/30 on the Standardised Mini Mental State Examination (MMSE). (A score of less than 12 indicates severe dementia.) On 10 November 2020, the Public Guardian provided consent for the Person to move into aged care, where she has remained since.

36. In an email to the Public Guardian, dated 10 September 2022, FPW advised that his mother was ready to return home with a care package. Two attachments were included with that email:

(1) Letter from My Aged Care, dated 19 July 2022, to the applicant advising that he had been appointed as the Person’s regular representative on 24 May 2021; and

(2) Client Service Agreement, Australian Unity dated 31 August 2022 - 1 page.

37. On 13 September 2022, the Public Guardian replied to FPW’s email. The Public Guardian advised that a proposal would need to be completed and supporting documentation provided for any further accommodation decision to be made.

38. On 14 September 2022, FPW returned the Public Guardian's accommodation proposal summarised as follows:

(1) Australian Unity: My Aged Care and the Person’s Doctor say "mum to go home"; she (the Person) breathes and walks well so she will 'be ok with our plan";

(2) the applicant will look after the Person and "of course it will be all under control";

(3) alternative options are "not needed"

(4) the NSW Trustee is aware of the proposal;

39. On 21 September 2022, the Public Guardian wrote to FPW stating an accommodation proposal provides information/evidence to assist the Public Guardian in making an informed decision on [the Person's] behalf and requested more information.

40. FPW’s reply did not contain any cogent proposal about how his mother’s high-level care needs would be met in the community. I note that he has also not filed any such evidence in this hearing.

41. FPW informed the Public Guardian “Its [sic] all about making my mother happy via friends - family it wont [sic] be friends all the time it will be me son [confidential] and Australian Unity Home Care Package I will help my mum in the best way I was to bring her back to true happiness she needs it very home life etc”.

42. The Public Guardian contends that the correct and preferable decision is to affirm the decision under review.

My consideration of the evidence and submissions

43. I accept the Person’s GP’s opinion that it was “impossible for her to go home”, she has advanced dementia and requires 24/7 care.

44. FPW’s mother’s consulting geriatrician opined “She could not complete a formal cognitive assessment. … In conclusion [the Person] suffers from advanced mixed dementia, most likely Alzheimer’s disease and vascular dementia. Her condition is progressive and not reversible. [The Person] cannot make decisions about her accommodation and lifestyle. [The Person] cannot manager her finances. [The person] requires 24-hour care and supervision.”

45. The General Manager of the aged care facility where the Person resides is of a similar view. On 7 October 2022, the General Manager in an email to the Public Guardian set out “…She needs close supervision and nursing care 24x7, She will be at high risk of fall & injury if she is taken home and left alone, She has got some behaviours related to Dementia which needs trained nurses to manage, In my view, it will not be in [the Person’s] best interest to be taken home & live with her Son due to risks involved.”

46. In the aged care facility Care Plan and Summary Report dated 27 August 2022, the views of the General Manager are supported. The plan reveals that the Person is doubly incontinent. The Person requires assistance with all activities of daily living, prompting and supervision with her mobility and transfers.

47. No evidence contrary to the need for the Person to receive twenty four hour care has been put before the Tribunal.

48. It is unclear whether the Person now wishes to return home. This is because, as recorded in June 2022, she told the geriatrician that she wanted to return to Germany and the Netherlands. Her answers are unreliable because of dementia.

Conclusion

49. I am not satisfied FPW has demonstrated that he has a satisfactory plan to care for his mother at home.

50. It is clear based upon the medical evidence that the Person has complex care needs. She is doubly incontinent and a high falls risk. Despite FPW’s best intentions to care for his mother in her home, he has not adduced sufficient evidence to establish that he would be able to do so. FPW has provided numerous telephone numbers for various friends, or family, its is hard to decipher, that he says will provide assistance with around the clock care for his mother. Notwithstanding, there is no statement from any of these people, no commitment about how much time they can assist with the care of the Person and no evidence if they could provide such care.

51. FPW has limited insight into the degree of care his mother requires, and, whether this care can safety be delivered within the home. An example of this is his view that his mother may not require incontinence aids within the home despite her incontinence. He also denied that his mother was a high falls risk despite the overwhelming evidence to the contrary.

52. I have formed the view, having considered the matters set out in s4 of the Guardianship Act, that the decision of the Public Guardian which is under review, is, the correct and preferable decision.

53. In deciding to affirm the decision of the Public Guardian, I am satisfied that full time aged care placement ensures the welfare and interests of the Person is given paramount consideration. Her freedom of decision and freedom of action is restricted as little as possible due to her diagnosis of dementia and having the Public Guardian appointed.

54. The decision of the Public Guardian allows the Person, as far as possible, to live a normal life in the community, whilst also protecting her welfare and interests. In the absence of FWP being able to establish that a high level of care can reasonably be provided in the home, the Public Guardian’s decision is the correct and preferable decision.

55. I am satisfied that the views of the Person have been considered in relation to the exercise by the Public Guardian of the accommodation decision. Notwithstanding the Person’s desire to live at home, I am not satisfied it is safe for her to do so in the current circumstances.

49. The Persons current capacity to provide for herself is very limited due to the diagnosis of dementia. As far as she can be self-reliant, the decision of the Public Guardian allows for that. This is because she is assisted by health care professionals twenty four hours a day.

50. There is no suggestion of any need to protect the Person from abuse and exploitation should she reside in her home. However, there is in my view, a possibility that her care needs may be neglected, not by design or any intention of FPW, but because of his limited insight into his mother’s high care needs. This can be avoided by affirming the decision under review.

51. I conclude that the decision under review should be affirmed.

Orders

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: 23 August 2023