GJZ v Public Guardian

[2024] NSWCATAD 225

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

GJZ v Public Guardian [2024] NSWCATAD 225

Hearing dates:

23 and 30 July 2024

Date of orders:

06 August 2024

Decision date:

06 August 2024

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

J D Little, Senior Member

Decision:

(1) The application for a stay is refused.

(2) The Respondent is to provide the following documentation to the protected person’s daughters so that they may consider whether they wish to make an application to be joined to the proceedings or other application:

(a) a copy of the administrative review application filed by the Applicant on 14 June 2024;

(b) a copy of the orders made on 2 July 2024; and

(c) a copy of this decision.

Catchwords:

STAY – administrative review of accommodation decision - stay refused – factors relevant to a stay

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Cases Cited:

Beck v Colonial Staff Super Pty Ltd & Ors (No 2) [2015] NSWSC 1360

Boyce v Building Professionals Board [2019] NSWCATOD 94

QLD Protection Security Pty Ltd v Commissioner of Police, NSW Police Force [2018] NSWCATAP 113

Texts Cited:

None cited

Category:

Procedural rulings

Parties:

GJZ (Applicant)
Public Guardian (Respondent)

Representation:

Counsel:
A Kaylinger (Applicant)

Solicitors:
Crown Solicitor (Respondent)

File Number(s):

2024/00220058

Publication restriction:

Pursuant to s 65 of the Civil and Administrative Tribunal Act 2013 (NSW) publication of the names of the parties to the proceedings is prohibited

REASONS FOR DECISION

1. The Applicant is the partner of the protected person. The protected person is 89 years old.

2. The protected person has a background medical history which includes moderate severity mixed vascular and Alzheimer’s dementia, breast cancer, systemic lupus erythematosus, diverticulitis and herpes simplex virus.

3. According to the hearing report of the Guardianship Division of the hearing on 10 May 2024 relating to a financial management application (which the Applicant relies upon in respect of this application as summarised below) (the Hearing Report):

On 25 February 2024, the protected person was taken by ambulance to St. Vincent’s hospital due to concerns about her welfare. Police had attended the protected person’s home at the request of one of her daughters because the protected person had left a concerning message on her daughter’s answering machine or message bank.

4. The “concerning message” as described in the Guardianship Reasons for Decision (as defined below), was an indication of self-harm in that the protected person said, she would “not be here for much longer”.

5. On 29 February 2024, the Guardianship Division of this Tribunal appointed the Respondent as the protected person’s guardian for a period of 12 months from the date of that order (the Guardianship Reasons for Decision). Prior to that time the Applicant was the protected person’s enduring guardian. The Tribunal conferred on the Respondent power to make decisions including, but not limited to accommodation decisions. The appointment was made on the application of the protected person’s daughters.

6. On 11 April 2024, the Respondent, on behalf of the protected person, consented to accommodation at a residential care facility where the protected person currently resides. In response to a request for a review of that decision, the Respondent upheld the decision (the Decision).

7. On 10 May 2024, there was an application before the Tribunal for a financial management order submitted by the social worker from St. Vincent’s hospital. According to the Hearing Report:

The application has been made on the basis that [the Applicant], [the protected person’s] appointed attorney, does not agree that she needs full time care in a residential facility, ether on a respite or permanent basis, and is refusing to pay her respite care fees.

It is understood that [the protected person’s] daughters are funding the respite care at present but this is not sustainable.

8. On 14 June 2024, the Applicant filed an application for administrative review of the Decision. It is not clear whether the protected person’s daughters have been given notice of this administrative review application.

9. This is an application for an interim order to stay the Decision pending the administrative review.

Legislation

10. The general proposition set out at s 43(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) is that the mere lodgement of a “general application” (i.e. an application for the review or other re-examination of a decision made by an external decision-maker) or of an “appeal” (which covers both “external appeals” and internal appeals to the NCAT Appeal Panel) does not affect the operation of the decision which is the subject of the application or appeal.

11. Section 43(3) of the NCAT Act confers broad power on NCAT to make such orders, with or without conditions, staying or otherwise affecting the operation of a decision to which a pending general application or appeal relates “as it considers appropriate to secure the effectiveness of the determination of the application or appeal". As is clear from the use of the words "appropriate to secure the effectiveness of the determination of the … appeal", the discretion to make orders on the application for a stay is not at large.

12. Interim orders and orders for a stay of an administratively reviewable decision, as is the case in the current circumstances, are regulated by s 60 of the Administrative Decisions Review Act 1997 (NSW) (ADR Act). The Tribunal has the power to make an order “staying or otherwise affecting the operation of the decision under review” pursuant to s 60(2).

13. Section 60(3) of the ADR Act empowers NCAT to make orders, if it considers that it is desirable to do so, after considering:

1. the interests of any persons who may be affected by the determination of the application, and

2. any submission made by or on behalf of the administrator who made the decision to which the application relates, and

3. the public interest.

14. In QLD Protection Security Pty Ltd v Commissioner of Police, NSW Police Force [2018] NSWCATAP 113, an Appeal Panel of NCAT summarised the considerations which should be applied when considering the granting of a stay under s 60 of the ADR Act (at [32]):

(1) whether the order is appropriate to secure the effectiveness of the determination of the application for review: s 60(2), ADR Act;

(2) whether the order is desirable taking into account:

(a) the interests of any persons who may be affected by the determination of the application for review: ADR Act, s 60(3)(a), Loveday at [10], Re Scott and Australian Securities and Investments Commission [2009] AATA 798 (Re Scott) at [4];

(b) any submission made by or on behalf of the administrator who made the decision to which the application relates: ADR Act, s 60(3)(b), Loveday at [10], Re Scott at [4];

(c) the public interest: ADR Act, s 60(3)(c), Loveday at [10], Re Scott at [4];

(3) the applicant’s prospects of success on the application for review: AVS Group of Companies Pty Ltd v Commissioner of Police [2010] NSWCA 81 (AVS Group) at [129], Loveday at [10] and [11], Re Scott at [4].

15. Before an interim order or stay on the decision is considered, it needs to be established that NCAT has administrative review jurisdiction and that there is an administratively reviewable decision (see NCAT Act; s 30 ADR Act, s 9(1)). In the current circumstances, the Applicant has made an application for an administrative review of an administratively reviewable decision, made application for an internal review of the decision and the review has been finalised. As such, the Tribunal has jurisdiction (ADR Act, s 55(3)).

Evidence and Submissions

16. The Applicant’s primary submission was two-fold, namely

1. That the Decision was in “considerable conflict with the protected person’s interests and or welfare”; and

2. There is “an insufficient basis underpinning the Respondent’s reasons in making [the Decision]”.

17. In respect of the first contention, the Applicant’s representative relied upon the protected person’s alleged “suffering” and submitted that:

“[The protected person] speaks of constant suffering and distress in having to remain in a care facility, not being allowed to return to her home or to see her loved ones. Those that speak and see [the protected person] report that she is driven to crying by her current circumstances. The various reports refer to [the protected person] being subjected to a complete lack of privacy, long bouts of isolation and prolonged distress and discomfort.”

18. In the Applicant’s written submissions in reply, this is described as “unnecessary suffering and distress, isolation and discomfort”.

19. In respect of the latter contention, the Applicant’s representative submitted that:

1. The required level of care as asserted by the Respondent is not substantiated by medical opinion;

2. The reasonings are “rort with considerations that lack independence and apply improper weight”; and

3. “Crucial aspects of the statutory test are not addressed or applied properly”.

20. A further basis to order a stay, as submitted by the Applicant’s representative was put in these terms:

“.. the order providing the [Respondent] the authority to decide where [the protected person] resides expires in February 2025, in less than 7 months. Subject to the availability of the Tribunal, there is good reason to suspect this Application may not be heard prior to the expiration of the order underpinning it; accordingly, the appal would be otherwise be rendered nugatory and for that reason, a stay is likely to be granted.”

21. This submission was revised in oral submission to be that it was possible that a decision would not be delivered before the accommodation order expires. That change was in consideration of the fact that on 2 July 2024, the matter was set down for final hearing on 11 September 2024 (i.e. prior to the expiry of the accommodation order). According to the Applicant, this supports that the stay “is necessary to secure the effectiveness of the review”.

22. Based upon these arguments, the Applicant’s representative submitted that the test for a stay had been satisfied being the test as summarised by Slattery J in Beck v Colonial Staff Super Pty Ltd & Ors (No 2) [2015] NSWSC 1360. According to the Applicant’s representative:

The central determinant as to whether a stay would be granted, and if so upon what terms, if any, is the Court’s assessment as to what is a fair balance of the rights of the parties, given that an appeal does not of itself operate as a stay and the party who has succeeded at trial is entitled to the fruits of its victory.

23. In short, the Applicant contends that the Tribunal should grant the stay because it would be against the interests of justice to perpetrate the alleged “suffering” in circumstances where there is an alleged arguable case to set aside the Decision.

24. In addition to the Applicant’s written and oral submissions, the Applicant relied upon:

1. Eight unsigned documents entitled “Statement” of

1. the Applicant,

2. the protected person’s nieces (either by birth or marriage),

3. great nieces,

4. sisters-in-law of the protected person’s nephew; and

5. great-great nephew.

2. The Applicant relies on these documents for the submissions summarised at paragraph 13 above. There was no direct evidence from the protected person despite the Applicant’s representative indicating that there was no basis to conclude that the protected person lacked capacity to provide such evidence. Nor was there any evidence of her direct family being her daughters.

3. Affidavit of the Applicant dated 25 July 2024 in which he gives evidence, in summary:

1. of his alleged ability to care for the protected person. In this respect, the Applicant states:

I have been [the protected person’s] partner for over 37 years and her carer for over a decade. Over those years I have done whatever has been required of me to look after and care for [her]. This includes the following:

(a)   Ensuring [the protected person] received her COVID boosters, 6 at present;

(b)    Making sure she gets a flu shot every year;

(c)   As well as accompanying her to general appointments and ultrasound/x-ray referrals;

(d)   as well as accompanying her to legal and financial appointments.

2. denies any neglect, abuse or exploitation of the protected person prior to the accommodation decision and blames the allegations on the protected person’s daughters,

3. denies the allegations of limiting the protected person’s access to friends and family,

4. describes a complaint by the protected person that a number of her meals at the residential care facility have been served cold.

5. denies the allegations of hoarding books but in any case, annexes photographs showing that the house is now clean and tidy;

6. blames the protected person daughters’ for an AVO that was taken out against the Applicant with respect to the protected person some “17+ years ago”;

7. describes having changed the protected person’s general practitioner to frustrate the protected person’s daughters’ attempts to obtain information about their mother’s medical status;

8. denies that there is any basis to conclude he would be aggressive however his evidence supports that in around May 2024 he was of the view that he suffered from “anger issues”. In this respect, a letter is annexed to his Affidavit from a psychologist which he relies upon that reads “[the Applicant] initially presented with self-reported anger issues pertaining to a difficult family situation regarding his partner of over 30 years ,,,”; and

9. makes allegations as against the protected person’s daughters of neglect, abuse and exploitation.

4. The Affidavit of the Applicant dated 25 July 2024 annexed:

1. The Hearing Report. That report states, inter alia:

[The protected person] was very clear about not wanting to be at the aged care facility. She said its nothing against the staff – they are wonderful – but she wants to be back at home with [the Applicant].

She expressed a lot of anger in relation to her daughters stating that they are cruel to have had her “locked up in this room”. She indicated that she wanted nothing more to do with them.

I raised with [the protected person] that when the police came to her home before she was admitted to hospital, they were worried about her welfare – they found her to be confused and frightened.

[The protected person] said that is because she’d had an argument with [the Applicant] about his books. She said he collects books and he doesn’t know when to stop. She said he has filled her place up with his books and they were all over the floor and in her way and she got upset about it.

[The protected person] was dismissive of comments she had made about [the Applicant] getting angry with her and her making a raised fist gesture when reporting this, and telling the Tribunal that while she loves [the Applicant], the situation is now not good for her.

…

In relation to the upcoming Tribunal hearing, [the protected person] said “Just get me out of this place please.”

2. A poem the Applicant wrote for the protected person.

3. An Aged Care assessment report of the Applicant which states that the Applicant experiences several health conditions including peripheral neuropathy, diabetes mellitus and Retinopathy and Vertigo. He lacks sensitivity in his feet that affects his mobility, and he no longer holds a driver’s licence. The report also notes that the Applicant effectively manages all his self-care needs and his day-to-day needs.

4. Photographs of the protected person’s home which shows a clean and tidy residence. It is also noted that the bed does not have railings or pulleys to assist with getting in and out of the bed; the toilet does not have a frame and there is no stand up shower but a bathtub that one needs to climb in and out of by lifting their leg one at a time.

5. Statutory declaration of the Applicant that states:

I agree if [the protected person] wishes to spend time alone in her apartment …. with her children … on two occasions a week I will be absent from the apartment at those times.

6. Letter from a clinical psychologist regarding the Applicant’s therapy for anger issues dated 1 June 2024.

5. Affidavit of the protected person’s nephew dated 26 July 2024 in which he gives evidence, in summary:

1. Denied having coercive control over the protected person and denied ever being aware of any abuse, neglect or exploitation of the protected person.

2. Indicates that he and his wife are willing and able to care for the protected person in a granny flat at his home which he describes as having “air conditioning, no stairs and an appropriate bed which is only 5m from a private bathroom”. This is despite the photographs attached to that affidavit showing four stairs to the front door with a railing. The Applicant’s representative was unable to clarify the protected person’s ability to climb stairs.

3. Indicates he has no health issues that would limit his ability to care for the protected person and details local medical facilities that could be utilised for the protected person.

4. Indicates that he does not understand why the Respondent has come to the view that the protected person would require a higher level of care than can be provided at home.

25. In response, the Respondent’s representative submitted that:

1. It is the welfare and interests of the protected person which is the paramount consideration and in this respect:

1. the Applicant, who carries the onus in respect of this stay application, has failed to show that either the Applicant or protected person’s nephew are able to care for the protected person to the standard which is suggested by medical professionals; and

2. disputes that there is a basis to conclude that the protected person is “suffering” and that if the statements of others are accepted as to the protected person’s wishes where there is no direct evidence from the protected person herself - then the evidence rises no higher than a finding that the protected person does not wish to reside at the residential care facility and her preference is to reside somewhere else. Even accepting this, the Tribunal must weight the protected person’s views with what is in her best interests and welfare.

3. In respect of the question of what is in the protected person’s interest, the Respondent relies upon the medical opinions described below which he submits are unequivocal in their view that the protected person has declining cognitive function and lacks insight into her medical needs and vulnerabilities. The Respondent submits that the evidence supports that the protected person requires a higher level of care than can be provided at home but can be provided in a residential aged care facility.

4. The medical opinions relied upon were:

1. Dr Elizabeth Harper, Staff Specialist Geriatrician at St Vincent's Hospital, assessed the protected person throughout her admission and provided a letter to the Tribunal dated 28 February 2024. Dr Harper stated:

“[the protected person] did disclose her partner [the Applicant] becomes angry with her at times and she held a tight fist out … She felt he could not care for her and did not feed her at times. She feels he is unwell and is unable to care for her. She was unable to recall any medications and it is unclear if medical care has been withheld

2. Shrita Fok, South Eastern Sydney LHD ACAT, conducted an Aged Care Assessment on 18 March 2024 in which Ms Fok made the following observation. Following the assessment Ms Fok recommended that Ms Rose be approved for residential respite to allow her to access a supported living environment to safely manage:

…cognition is impacting her ability to carry out her daily tasks safely. The hospital has raised concerns about [her] ability to manage at home due to her cognitive decline and the level of support she was receiving at home previously. Concerns were raised around restricted access to her daughters, poor medication and health management and food intake..."

3. Dr Seema Channappagoudar, Consultant Geriatrician, conducted an assessment with the protected person on 4 June 2024 and completed a report to the protected person’s General Practitioner.

5. The Respondent also draws the Tribunal’s attention to the:

1. protected person’s declining Montreal cognitive assessment scores in that on 13 March 2024 her assessment was 13/30 but that had dropped to 14/30 as at 4 June 2024 evidencing a significant decline in a short period of time; and

2. Dr Joanne Williams, who was Ms Rose’s general practitioner and who provided a Health Professional Report Form and clinical notes.

26. In addition to the medical evidence, the Respondent relied upon:

1. The Guardianship Reasons for Decision at [21]-[23], [29], [39], [41];

2. A letter dated 15 April 2024 from the Respondent to the protected person notifying her of the Decision;

3. Reasons for the decision dated 30 April 2024;

4. Internal Review of the Decision dated 17 May 2024; and

5. Accommodation proposal of the protected person’s nephew.

27. The Guardianship Reasons for Decision state at [21] and following:

[21] At the hearing today, Dr Harper confirmed the views expressed in her report. She said that the reason she recommends coercive powers is that she is aware of the complex dynamics in the family and there are some issues to be worked out. She said that there was a need to keep [the protected person] safe and that yesterday, for example, [the applicant] and a nephew had unexpectedly attended the hospital. Dr Harper said that she asked them not to visit [the protect person] and they complied with this request but she was very worried that someone may attempt to remove [the protected person]. She was concerned that this would not be in [the protected person]'s best interests and, at this stage, they have no ability to keep her in hospital.

[22] Dr Harper said that [the protected person] is unable to manage at home by herself. She needs care and, at this stage, it is unclear what the safest accommodation option might be for her. Dr Harper recommended the appointment of the Public Guardian as the best way to work through all of the dynamics and make decisions in [the protected person]'s best interests. She said everybody is very emotional and that a guardianship order is needed to give everyone a clear pathway forward. She said also there is a need to make sure that [the protected person] can see people she wants to see and who are able to visit her. She noted that [the protected person] had said that [the Applicant] was sick and cannot look after her.

…

[28] [The protected person’s daughters] have been concerned about their mother being neglected, not getting the medication she needs, not having medical reviews, and not being able to make contact with people she cares about for some time. They said that their mother had been prescribed medications including Mirtazapine as she suffers from depression and, in the past, she had suicidal ideation, but their understanding is that the [Applicant], who has been responsible for getting the medications, has not been giving them to her.

[29] They said there is a history of volatility in their mother’s relationship with [the Applicant]. They said that they have made numerous efforts to visit their mother with their attempts to contact her personally being largely rebuffed, phone calls not getting through, and messages not returned. She said it was their view that [the Applicant] was controlling access to their mother and that in addition to the difficulties they have experienced, old friends and an elderly aunt had also been denied access. They supported the making of a guardianship order for their mother.

…

[31] [The protected person’s daughters] said their mother had mentioned to them that [the Applicant] was aggressive towards her and they held grave concerns about her safety and well-being. They said [the Applicant] says he does not live with their mother but that he takes care of her. They were concerned about her access to food and her own friends.

…

[39] … We note in the evidence there were emails from potential home care service providers who refused to provide car because of the clutter in the house and the perceived aggression of [the Applicant] …

[40] [The protected person] has a number of health conditions and it is unclear whether or not she is receiving proper treatment …

[41] We accepted that there were genuine issues with access to [the protected person] from her daughters and their families. [The protected person] said during the hearing that she wanted to have contact with her daughters and she was upset that she had not had contact with them. Her daughters gave numerous examples of thwarted attempts to speak to their mother. Although [the Applicant] says that [the protected person] does not want to see her daughters, that is inconsistent with what she said to us today.

28. After consideration of the evidence, the competing position and the authorities, I refuse the application for a stay for the reasons below.

Consideration

The legal principles

29. As discussed above, the Applicant’s representative relied upon Beck v Colonial Staff Super Pty Ltd & Ors (No 2) [2015] NSWSC 1360 which was quoted:

The central determinant as to whether a stay would be granted, and if so upon what terms, if any, is the Court’s assessment as to what is a fair balance of the rights of the parties, given that an appeal does not of itself operate as a stay and the party who has succeeded at trial is entitled to the fruits of its victory. [Emphasis added]

30. This authority, as well as the other Supreme Court authorities cited by the Respondent in respect of the applicable test to be applied for the granting of a stay in this jurisdiction, are not directly applicable. This is a case of administrative review in this Tribunal which unlike a superior court, does not have inherent jurisdiction to stay execution of a judgment or order “in any situation where the requirement of justice demands it”: Tringali v Stewardson Stubbs & Collett Pty Ltd [1966] 1 NSWR 354 at 360. Rather the power in this jurisdiction is derived by legislation and specifically s 43 of the NCAT Act and s 60 of the ADR Act.

31. The correct test is that set out in s 60(3) of the ADR Act and explained in QLD Protection Security Pty Ltd v Commissioner of Police, NSW Police Force [2018] NSWCATAP 113 as discussed above.

32. It is for this reason why the quote cited by the Applicant sits uneasily with the character of these proceedings specifically the references to “balancing the rights of the parties” and the concept that there have been “fruits of victory”. While such characterisations are apt for a civil proceeding relating to, for example a damages’ claim, a State government agency against whom an administrative review application is made pertain to circumstances in which the agency exercised State power in making certain decisions in certain circumstances. It is not a case of the agency exercising, defending or seeking to enforce a “right” but is a question of determining the correct and preferable decision in the circumstances.

Section 60 of the ADR Act

33. Section 60(3) of the ADR Act provides that to grant a stay, the Tribunal must consider the interests of any persons who may be affected by the determination of the application; any submission made by or on behalf of the administrator who made the decision to which the application relates, and the public interest. The Tribunal should also consider the applicant’s prospects of success on the application for review.

34. As summarised above and by virtue of the considerations below, the submissions of the Respondent have been considered pursuant to s 60(3)(b). In respect of the Applicant’s prospects of success as referred to in QLD Protection Security Pty Ltd v Commissioner of Police, NSW Police Force [2018] NSWCATAP 113, the Applicant says, inter alia, that he has identified errors in the approach taken by the Respondent in its findings as to the protected person’s required level of care and that the Applicant and/or the protected person’s nephew have the capacity to care for the protected person if the correct level of care is considered.

35. However, the substantive review does not take the form of an internal appeal reliant on the applicant’s ability to identify an error. Rather, the Tribunal will reconsider the issues for determination entirely, to come to what it considers to be the “correct and preferable” decision: s 63(1), ADR Act. The Tribunal may receive fresh evidence, in addition to or in substitution for the evidence which was initially before the Respondent.

36. In that context, and with the limited material available to me given that the evidentiary timetable in respect of the hearing of the administrative review application has not yet been completed, it is difficult to determine the strength of the Applicant’s case. I consider the strength of the application to be a neutral matter in determining whether to grant the stay consistent with the decision in Boyce v Building Professionals Board [2019] NSWCATOD 94.

37. With respect to the interests of any persons affected pursuant to s 63(3)(a) of the ADR Act, the paramount consideration is the interest of the protected person in guardianship matters. The consideration of the public interest, likewise, must consider the protected person’s interests, the protected person being a member of the public.

38. In this respect, I accept the submissions of the Respondent that whether a stay ought to be granted in the current circumstances is significantly affected by the requirement in s 4(a) of the Guardianship Act 1987 (NSW) (the Guardianship Act) which I have applied to my reasoning below.

39. The necessity of the stay, as put by the Applicant is due to the protected person’s alleged “suffering”. However, the evidence is insufficient to satisfy me of any such “suffering” for the following reasons.

40. First, there is no direct evidence from the protected person as to her opinion and treatment. This is despite, as acknowledged by the Applicant’s representative, there is no evidence that the protected person lacks capacity to give evidence and despite the Applicant’s evidence (and the protected person’s nephew’s evidence) that they have access to the protected person and sees her on a regular basis.

41. In these circumstances there is no reason to attribute to the protected person the thoughts and feelings attributed to her by others when she can speak for herself especially where there are references to:

1. “complex dynamics in the family” as described in the Guardianship Reasons for Decision;

2. indications of an acrimonious relationship as between the Applicant and the protected person’s daughters as evidenced by the accusations made as against the protected person’s daughters in the Applicant’s Affidavit as referenced above; and

3. the lack of any indication that the protected person’s daughters’ have received any notice of this interim application and application for administrative review in circumstances where they have raised serious concerns regarding their mother’s care.

42. Secondly, the thoughts and feelings attributed to the protected person by others are not consistent in any case. While the Applicant and the protected person’s nephew give evidence that the Applicant is upset and unhappy at the residential care facility and wishes to return home, the Hearing Report attributes to the protected person the opinion that her living situation with the Applicant is “now not good for her”. Another example is the Applicant’s indication that the protected person does not want a relationship with her daughters which was inconsistent with the evidence given by the protected person in this Tribunal during the guardianship hearing according to paragraph [41] of the Guardianship Reasons for Decision.

43. Thirdly, even if I was to accept the evidence of others as to the opinion and treatment of the protected person, I reject that it would amount to evidence able to satisfy me of “unnecessary suffering and distress, isolation and discomfort”. At its highest, it is evidence that the protected person does not wish to reside at the residential facility. As submitted by the Respondent, even accepting this, this Tribunal must weigh the protected person’s freedom of decision and action to live in the community and her views with what is in the best interests of the protected person and her welfare.

44. As to the protected person’s interests, the only medical evidence that is before the Tribunal is that which is relied upon by the Respondent which supports that the protected person has declining cognitive function and lacks insight into her medical needs and requires a higher level of care than that which can be provided in a home environment. I accept that the evidence that is currently before the Tribunal supports that conclusion. While the Applicant challenges the findings in the medical opinions and contend that the care needs of the protected person can be facilitated in a home environment, the Applicant has not relied upon any alternate medical opinion to support the contention as to what the required standard of care is while simultaneously accepting that care is required. In those circumstances, I cannot be satisfied that a stay which would see the protected person leave that residential care facility and placed in a home environment, is in the protected person’s interests.

45. For the reasons above, I am not satisfied that it is in the protected person’s interests to grant the stay. That finding does not determine the administrative review application. As noted above, the evidentiary timetable is on-foot. The Tribunal will decide the correct and preferable decision in due course based upon the evidence then before it.

Section 43 of the NCAT Act

46. As noted above, s 43(3) of the NCAT Act confers broad power on NCAT to grant a stay but it is subject to such an order securing “the effectiveness of the determination of the application or appeal".

47. In answer to the Tribunal’s inquiry regarding how this application satisfies s 43(3) of the NCAT Act, the Applicant’s representative repeated the submission made in the Applicant’s written submissions that there is good reason to suspect this Application may not be decided prior to the expiration of the order underpinning it; accordingly, the appeal would be otherwise rendered nugatory and for that reason, a stay is likely to be granted. According to the Applicant, this means that the granting of the stay secures “the effectiveness of the determination of the application or appeal".

48. Given the findings as to the Applicant’s failure to satisfy the test as provided in s 60(3) of the ADR Act, it is unnecessary to decide whether the Applicant, by way of this application, has satisfied s 43(3) of the NCAT Act. However, to the extent that there was any controversy with respect to those findings, I would reject the submission of the Applicant’s representative with respect to s 43(3) of the NCAT Act for the following reasons:

49. First, there is no basis either by evidence to support that a decision as to the administrative review application will not be delivered prior to the expiry of the guardianship order.

50. Secondly, even if the period of the guardianship order was to expire, such a circumstance would not be as a product of “the determination of the application” but a product of the passage of time.

51. Thirdly, the reasoning has no merit. If the reasoning was correct, it would mean that any stay application that is made in circumstances of a guardianship order of a 12-month duration ought to be awarded in so far as s 43(3) of the NCAT is concerned. That cannot be correct and would be an impermissible fetter on the power of this Tribunal.

52. I reject the submission.

Absence of notice to the protected person’s daughters

53. The materials before the Tribunal on this application evidence that the protected person’s daughters have been active participants in applications involving their mother. In bringing the application for administrative review, the protected person’s daughters are not named as parties and as possible contradictors to this application or the application for administrative review of the Respondent’s decision.

54. It is appropriate, in the circumstances and based on the evidence before me, to order that the proceedings are brought to the attention of the protected person’s daughters and to give them an opportunity to make application to be joined or otherwise heard with respect to these proceedings.

Orders

55. I make the following orders:

1. The application for a stay is refused.

2. The Respondent is to provide the following documentation to the protected person’s daughters so that they may consider whether they wish to make an application to be joined to the proceedings or other application:

1. a copy of the administrative review application filed by the Applicant on 14 June 2024;

2. a copy of the orders made on 2 July 2024; and

3. a copy of this decision.

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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: 06 August 2024