GJZ v Public Guardian, GPF and GPG

[2024] NSWCATAD 315

Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:

GJZ v Public Guardian, GPF and GPG [2024] NSWCATAD 315

Hearing dates:

15 and 16 October 2024

Date of orders:

21 and 25 October 2024

Decision date:

25 October 2024

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

EA MacIntyre, Senior Member

Decision:

(1) The decision under review is affirmed.

(2) Pursuant to ss 64(1)(a) and (c) of the Civil and Administrative Tribunal Act 2013, the publication or broadcast of the names of the Applicant, protected person, children of the protected person and nephew of the protected person is prohibited.

Catchwords:

ADMINISTRATIVE LAW - reviewable decision - correct and preferable decision - Civil and Administrative Tribunal - review

GUARDIANSHIP - Public Guardian - protected person - welfare and interests of protected person - freedom of decision - freedom of action - preserving family relationships - cultural and linguistic environment - neglect, abuse and exploitation – expert - medical evidence

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Guardianship Act 1987 (NSW)

Cases Cited:

P v NSW Trustee and Guardian [2015] NSWSC 579

WL v NSW Trustee and Guardian [2011] NSWADTAP 22

Texts Cited:

Nil

Category:

Principal judgment

Parties:

GJZ (Applicant)
Public Guardian (First Respondent)
GPF (Second Respondent)
GPG (Third Respondent)

Representation:

Counsel:
A Kaylinger (Applicant)
Solicitors:
First Respondent: Crown Solicitor
Second Respondent: (Self-Represented)
Third Respondent: (Self-Represented)

File Number(s):

2024/00220058

Publication restriction:

Pursuant to ss 64(1)(a) and (c) of the Civil and Administrative Tribunal Act 2013, the publication or broadcast of the names of the Applicant, protected person, children of the protected person and nephew of the protected person is prohibited.

REASONS FOR DECISION

1. The issue for determination in this matter concerns a person subject to guardianship. The Public Guardian, the First Respondent in this matter, made a decision to place the person subject to guardianship in an aged care facility and accommodate her there. The question is whether that decision should be affirmed or not. Determination of that question must have regard to the principles set out in s 4 of the Guardianship Act 1987 (“NSW”) (“Guardianship Act”).

Background

2. The person the subject of guardianship is a woman aged 89 (“protected person”).

3. Until 25 February 2024, the protected person had resided in her unit in a suburb of Sydney (“property”) with her partner of nearly 40 years. Her enduring guardians had been her partner and nephew.

4. On or about that date, her daughters made a report to the police. They are the second and third Respondents in this matter. They were concerned about the possibility of self-harm arising from a voicemail left by their mother. She is reported to have said: “just letting you know, I won’t be here much longer”.

5. The police attended the unit in which she lived. They described the unit as “unkempt”. They reported that they found the woman in question “confused and frightened”. On the same date, she was admitted to a hospital having been taken there by ambulance. Since the date of her admission to hospital, the protected person has not returned to live at the property.

6. Since 29 February 2024, the protected person has been subject of a guardianship order made in favour of the Public Guardian, the First Respondent in this matter. The Public Guardian is, among other things, her substitute decision maker and has the power to make decisions as to where she should be accommodated.

7. On 17 March 2024, the nephew of the protected person submitted a proposal to the Public Guardian that she should reside with his wife and him at their residence in a suburb of Sydney. Ten days later, the Public Guardian received a proposal from a social worker at the hospital to which the protected person had been admitted that she reside in an aged care facility. On 11 April 2024, the Public Guardian decided that she should reside at a named aged care facility. On 23 April 2024, the niece of the protected person sought internal review of this decision.

8. On 30 April 2024, the protected person became a permanent resident at the aged care facility. That facility is affiliated with the Roman Catholic Church.

9. On 17 May 2024, the internal review of the decision made on 11 April 2024 concluded. The Public Guardian gave reasons affirming the decision under review.

10. By application filed on 14 June 2024, the partner of the protected person applied to the Civil and Administrative Tribunal (“Tribunal”) for administrative review of the decision made on 17 May 2024.

11. The protected person continued to reside at the aged care facility until 31 August 2024. On that date, an incident occurred where a male resident was alleged to have come into the room occupied by the person and caused trauma and significant distress to her.

12. Subsequently, her nephew attended the aged care facility and removed the protected person to his residence. It is about 5km from the aged care facility. As at the date of the hearing, she remained at that residence on social leave approved by the Public Guardian.

13. There are three competing proposals as to where the protected person should reside. The first proposal, being that advocated by the Public Guardian, is that she continue to be accommodated at the aged care facility she was accommodated in until 31 August 2024. A second proposal is that she be accommodated at her nephew's residence. The third proposal is that she return to the Property which she left on the date of her admission to hospital and reside with her long-term partner, the Applicant in these proceedings. The property is located an approximately similar distance away from both the aged care facility and the residence of the nephew. The Applicant prefers the last option. Otherwise, his submission is that the protected person should reside with her nephew.

Consideration

14. The evidence set out both in a number of written statements of witnesses and oral evidence at the hearing of this matter including the following:

1. medical evidence as to various diagnoses of the protected person, including Alzheimer’s/dementia and depression

2. her desires as to where she wished to live

3. other matters going to the suitability or otherwise of the accommodation options.

15. These matters, as well as certain other matters set out below, are relevant to the determination of the question before the Tribunal, namely where the protected person is to be accommodated, having regard to the scheme set out in the Guardianship Act.

16. Section 80A of the Guardianship Act makes provision for review by the Tribunal of the Public Guardian’s decision that is the subject of this matter. It provides as follows:

“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”.

17. Under s 17 of the Guardianship Regulations 2016 (NSW), all decisions made by the Public Guardian in connection with the exercise of the Public Guardian’s functions under the Guardianship Act as a guardian are prescribed for the purposes of s 80A(1)(b). There was no dispute that the Tribunal had jurisdiction under section 80A to review the decision made by the Public Guardian the subject of these proceedings, under the Administrative Decisions Review Act 1997 (“Administration Act”).

18. Section 63 of the Administration Act sets out the Tribunal’s powers. It provides:

“63   Determination of administrative review by Tribunal

(1)  In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following:

(a)  any relevant factual material,

(b)  any applicable written or unwritten law.

(2)  For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision.

(3)  In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide:

(a)  to affirm the administratively reviewable decision, or

(b)  to vary the administratively reviewable decision, or

(c)  to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or

(d)  to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal”.

19. Review in the present matter requires consideration of the principles set out in the Guardianship Act governing the Public Guardian’s functions, including their power to make decisions. Section 4 prescribes the general principles applicable in the exercise of functions under the Guardianship Act. It provides as follows:

“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”.

20. The above principles are understood to be more than an “objects clause”. Section 4 not only articulates the intended objects of the Act. It requires any person exercising functions under that Act, to observe those principles (WL v NSW Trustee and Guardian [2011] NSWADTAP 22, at [71]).

21. The paramount consideration set out in s 4 is the welfare and interests of the persons under guardianship. This is the main purpose of the scheme protecting persons under guardianship. Lindsay J described it as the “jurisdiction’s central, informing idea (sometimes described as the “welfare principle” or the “paramountcy principle”)” (P v NSW Trustee and Guardian [2015] NSWSC 579, at [53]). Further, 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” (at [52]). His Honour also said that the Guardianship Act “should be construed beneficially, having regard to its protective character”, at [56]).

22. The principles set out in s 4 are not necessarily absolute in circumstances where the decision maker has discretion (WL v NSW Trustee, at [76]). Nevertheless, they are of fundamental importance.

23. I set out below evidence of various matters going to the matter in issue, namely where the protected person should be accommodated.

Medical evidence

24. The protected person had experienced numerous health issues. They include lupus erythematous (an autoimmune disease), hypertension, hypercholesterolemia, diverticulis (an inflammation of the bowels) and Meniere’s disease (which causes vertigo). She has also been treated for breast cancer, has had a hip replacement in her right hip and has had bilateral osteoarthritis of the knees. She was also assessed as being at high risk of falls from 2015. The protected person had also been diagnosed with depression and/or an associated mood disorder.

25. The evidence includes a diagnosis made by Dr Elizabeth Harper on 28 February 2024. Dr Harper is a staff specialist geriatrician at St Vincent's hospital in Darlinghurst, a suburb of Sydney. She has had over 26 years of clinical experience as a doctor and for the last 21 years in geriatric medicine.

26. Dr Harper described the protected person as having “moderate severity mixed vascular and Alzheimer’s dementia”. This meant, in Dr Harper’s opinion, that she was “at risk and vulnerable”. The patient’s short-term memory was described as being poor with the opinion expressed that she would “lack capacity to make decisions regarding her medical, financial and accommodation decisions”.

27. Dr Harper also observed that she required some help with personal care. She could independently toilet and feed herself when a meal was set up but required “supported accommodation”. She also observed that the protected person became agitated and paranoid in the night for which medication was needed.

28. The protected person undertook a Montreal Cognitive Assessment (“MoCA”). The evidence was that people without cognitive impairment typically score above 26. A score of 22 is indicative of mild cognitive impairment. A score of 16 is indicative of Alzheimer’s. Dr Harper recorded a score of 17 out of 30.

29. An earlier MoCA test undertaken in 2023 produced a score of 14 out of 30. That test was undertaken by Dr Gim Chuan Teoh, a geriatrician, to determine if the protected person had the capacity to appoint an enduring guardian and power of attorney. Dr Teoh, in a report dated 6 November 2023, found that she did have that capacity but opined that he did not perform a “forensic assessment of capacity and would not be able to comment on this”.

30. Another geriatrician, Dr Seena Channappagoudar examined the protected person on 4 June 2024. It was reported that she could recall neither her partner’s nor her daughters’ occupations nor where they lived. She could not recall why she had been hospitalised, the guardianship proceedings nor how she came to be at the aged care facility where she resided at the time. She was also unable to explain either the enduring power of attorney or the enduring power of guardianship. A MoCA test reported a score of 14 out of 30.

31. Dr Channappagoudar opined that the protected person suffered from “moderate to severe cognitive impairment likely due to neurodegenerative disorder Alzheimer’s subtype”. She also said that the protected person had “no insight into her medical needs and current medical issues”.

32. The evidence also included a report from a social worker at the hospital to which the protected person had been admitted, including a recommendation for 24/7 care.

33. A later medical examination took place on 11 September 2024 by Dr Seo Ling, a geriatrician. He interviewed the protected person alone for 45 minutes. Dr Ling opined in a report dated 11 September 2024 that the protected person “does not need a lot of actual physical care. She needs a little reminders and supervision for her activity of daily living”. He reported that she had expressed a desire to live with her partner with “services”. She was “likely to have Alzheimer’s Dementia”. Dr Ling did not administer a MoCA test but carried out a “mini mental state examination” in which the protected person scored 19 out of 30.

ACAT assessment

34. The protected person underwent an Aged Care Assessment Team (“ACAT”) assessment with Ms Shrila Fok. That assessment, made in March 2024, concluded that the protected person:

1. appeared physically capable

2. was observed to be mobile independently and without aid, could transfer to and from bed or a chair

3. could wash, dry and dress herself in a seated position and was continent

4. had support set up for physical grooming.

35. The protected person scored 18/20 on the Barthel Index for Activities of Daily Living, a test which examines self-care and mobility.

36. However, her reduced cognitive capacity raised concerns for the associated impact on functional capacity. She was administered an “Older American Resources and Services” (OARS) test. The higher the score the greater the level of independence. The protected person scored 1/14.

37. Ms Fok considered that the cognition of the protected person was impacting upon her ability to carry out daily tasks safely. Ms Fok also considered that she lacked insight into her risks and vulnerabilities and needed regular support and monitoring. As a consequence of the ACAT assessment, the person was assessed as suitable for permanent residential care.

38. No provision was made at the time for a home support package as an alternative to permanent residential care. However, the ACAT assessment indicated that an assessment for home care package approval could be completed in the community “if she returns home in the future”.

39. In other words, the ACAT assessment concluded that the protected person was suitable for permanent residential care. However, the assessment also left open the possibility of living at home subject to a future assessment for a home care package.

Residence at aged care facility

40. Upon taking up residence in the aged care facility, the protected person was considered to have a “self-care deficit” owing to her cognitive impairment which required supervision for all aspects of personal hygiene. The aged care facility also put into place specific protocols to manage her medications regime. There was evidence that the protected person had not been regularly taking prescribed antidepressant medication until after residence in the age care facility.

Consideration of medical evidence and ACAT assessment

41. The paramount consideration in this matter is the welfare and interests of the protected person. The evidence as to medical matters will be a significant consideration in making a decision as to her place of accommodation that best serves her welfare and interests.

42. The Applicant accepted that, taking into account the medical evidence, the protected person needed some level of care. He accepted that full independence for her was not viable.

43. The Applicant submitted that not much weight should be given to the various medical conditions of the protected person, noting that a range of such conditions were to be expected for someone of her age. What was “pivotal”, in his submission, was the diagnosis of Alzheimer’s and dementia and what level of care was required as a result. The Applicant did not think that the diagnosis of the protected person justified the decision to place her in an aged care facility. He submitted that she should return to the property and reside with him, or otherwise reside with her nephew.

44. In support of the latter proposal, the Applicant relied on the fact that the protected person had been residing with her nephew since 31 August 2024, submitting that he “had and is able to care for” the protected person had been doing so “with the approval of the Public Guardian”. These circumstances, in the Applicant’s submission, showed that a placement in an aged care facility was not necessary.

45. The Applicant referred to the recommendation of the social worker at the hospital for 24/7 care, questioning the objectivity and independence of the social worker. This submission was made on the basis that the social worker was a work colleague of one of the daughters of the protected person. The Applicant also submitted that neither Dr Harper not Dr Teoh made recommendations for 24/7 care.

41. His evidence as regards anti-depressive medications not being taken was that the protected person had “made the decision on her own accord” to cease talking medication for depression.

42. The Applicant submitted that the ACAT assessment made contemplated a future assessment for a homecare package for the protected person “if she returns home in the future”. The prospect of a home care package also supported the submission that a placement in an aged care facility was not necessary.

43. The evidence was also that the protected person retained a degree of mobility, including the ability to transfer to and from a bed or chair. She could also self-care to some extent including taking her meals and grooming. These are additional matters of relevance, in the Applicant’s submission, in determining how the protected person should be accommodated.

44. The Public Guardian’s submission was that although the protected person appeared to remain physically capable (notwithstanding risk of falls), her dementia diagnosis had a significant impact upon her functional capacity, such that she required constant care. The vulnerability that the diagnosis created combined with her “total lack of insight as to her dementia diagnosis”, together with the tendency to become resistant to care or assistance by virtue of a depressive mood diagnosis, had the consequence that in the absence of proper care, the person’s safety and well-being was at considerable risk.

45. The parties are in agreement that care of the protected person is required. What they disagree on is whether the level of care is such that she needs to reside in an aged care facility. The Applicant submits that the level of care required does not require residence in an aged care facility and that the requisite degree of care can be provided either by the protected person’s nephew and his wife or otherwise by her partner. The Respondent on the other hand submits that the level of care required is such that the protected person needs to reside in an aged care facility.

46. The parties are also in agreement that the diagnosis of Alzheimers and dementia assume great importance in the matter. The evidence included reports by four geriatricians. Dr Harper’s diagnosis was that the protected person had “moderate severity mixed vascular and Alzheimer’s dementia”. Dr Channappagoudar’s diagnosis was one of “moderate to severe cognitive impairment likely due to neurodegenerative disorder Alzheimer’s subtype”. Dr Ling opined that she was “likely to have Alzheimer’s Dementia”. There was therefore agreement that the protected person suffered from cognitive impairment as a result of the diagnosed medical condition of Alzheimer's dementia. Where the evidence, however, diverged was on the degree of impairment and the consequences of the impairment.

47. The consequences of the diagnosis for the protected person were set out both by Dr Harper and Dr Channappagoudar. Dr Harper observed a “lack of capacity to make decisions regarding her medical, financial and accommodation decisions”. She also saw a need for “supported accommodation”. Dr Channappagoudar described the consequence of the diagnosis as being that the protected person had “no insight into her medical needs and current medical issues”.

48. Each of Dr Harper and Dr Channappagoudar also set out the results of MoCA tests in their reports. The results they recorded were 17/30 and 14/30 respectively. A similar result was reported by Dr Teoh of 14/30. The tests were all carried out in 2023 and 2024.

49. Dr Ling’s report, however, differed in important respects from the other reports. Dr Ling was of the opinion that the protected person “does not need a lot of actual physical care. She needs a little reminders and supervision for her activity of daily living”. Dr Ling, however, did not administer a MoCA test but carried out a “mini mental state examination” in which the protected person scored 19 out of 30.

50. I prefer the evidence of Dr Harper and Dr Channappagoudar. Both their reports were more detailed, both having carried out MoCA tests, unlike Dr Ling. Both also described the condition of the protected person as “moderate to severe”. Both diagnoses also raised concerns about the level of cognitive capacity of the protected person and were of the view that that lack of sufficient cognitive capacity impacted her ability to make the required decisions to care for her medical needs.

51. Dr Harper expressed the view that “supported accommodation” was required, although there was no further detail as to what kind of support was required. However, the ACAT assessment made by Ms Fok approved the protected person for full time residential care. It contemplated a “supported living environment to safely manage her care need”.

52. The opinion of the social worker also carries some weight, in particular her recommendation that the protected person be discharged from hospital for respite care at the aged care facility in question. I am unable to infer the occurrence of dealings between the social worker and a daughter of the protected person, so as to impugn the social worker’s recommendations, as alleged by the Applicant, unless there is evidence of such dealings. There is no such evidence before the Tribunal. However, even without taking into account the social worker’s recommendation, the weight of the medical evidence and the conclusions reached in the ACAT assessment assist me in coming to the conclusion that the medical evidence supports the decision of the Public Guardian under review. I rely on the evidence in its entirety to reach this conclusion rather than any particular part of evidence.

Wishes of the protected person

58. The medical evidence alone, however, is not determinative of the question the subject of these proceedings, namely where the protected person should be accommodated.

59. Of fundamental importance is the evidence of her wishes. I accept that her strongly held view is that she should continue to live with her partner and return to the property in the future. Otherwise, her preference is to continue living with her nephew and his wife. That preference was clearly set out in the statement made by the person at hearing. Despite the evidence as to the limitations in her cognitive capacity, I accept that her preferences and wishes are clear and not in dispute.

60. I accept that these are matters that carry weight in favour of a decision for the provision of accommodation to the protected person in a place other than an aged care facility.

Other matters to be considered

61. Section 4 of the Guardianship Act sets out various other matters relevant to the determination of the question at hand. They include freedom of decision and freedom of action, living a normal life in the community, the preserving of family relationships, the recognition of the cultural and linguistic environments of relevant persons and protection of the person from neglect, abuse and exploitation. These matters and the other matters of relevance set out in s 4 need to be considered in determining the best available option as to where the protected person should live.

Freedoms of protected person

62. The ability of the protected person to enjoy freedom of decision and freedom of action on the evidence at hand, are constrained by the limitations of her cognitive functions. The evidence was that she was unable to understand or make decisions as to matters going to her medical care. Even if she enjoyed a degree of mobility, it was not clear in the circumstances as a whole, that the protected person could enjoy the freedoms in question without limits, regardless of where she lived. The Applicant accepted that full independence for the protected person was not viable.

63. Nevertheless, even when residing at the aged care facility, she has been able to make social visits outside the facility, including the visit of some weeks’ duration to her nephew after 31 August 2024. These circumstances in my opinion, allow me to conclude that the freedoms described in s 4, are capable of exercise, subject to the limits placed on the protected person by her medical conditions, whether within the aged are facility or whether living with family, although they may be better exercised outside the aged care facility.

Family relationships

64. The preservation of family relationships is also a consideration that needs to be taken into account. There was evidence that during the period of the protected person’s residence at the property, there were constraints on the ability of her daughters to visit her. Her partner’s evidence was that she did not wish to have contact with her daughters.

65. At the hearing, the protected person expressed criticism of her daughters. Her criticism appeared to involve the belief that it was her daughters who were responsible for her placement in care rather than the Public Guardian. However, at the hearing, she also demonstrated maternal feelings towards her daughters, despite making those criticisms of them.

66. There was also evidence that at certain times, particularly when she was under stress, she made contact with her daughters to seek their help.

67. The evidence is clear that the protected person wishes to remain close to and in a relationship with her partner. She is also close to her nephew and his family and seeks to maintain contact with them. Despite the difficulties in the relationship with her daughters, I am satisfied that the protected person wishes to have contact with both of them. The maintenance of all of these relationships, therefore, remains an important consideration in making a decision as to where the protected person should live.

68. Living with her nephew or her partner will better allow the protected person to maintain the relationships she has with her partner and nephew. Residence at the aged care facility may make it easier for contact with her daughters to be more easily maintained. However, her nephew, in his evidence, indicated that he would facilitate access for the daughters at his residence. I accept that evidence. On balance, having regard to the nephew’s evidence in particular, maintenance of family relationships may be better served if the protected person lived with her nephew.

Neglect, abuse and exploitation

69. Section 4 provides that relevant persons should be protected from neglect, abuse and exploitation. The evidence included numerous police records beginning in 1997 and ending in early 2024. Some were logged as a “domestic violence episode”. A record dated 26 February 2024 indicated that the protected person had contacted one of her daughters expressing fears for herself, resulting in the police visit described above.

70. Dr Harper also reported that the protected person head expressed concerns with certain behaviours on the part of the Applicant that she perceived as threatening.

71. The Applicant submitted that an incident recorded in 1997 in evidence was nearly 30 years ago and some degree of “proportionality” was required in taking that report into consideration given the lapse of time. The submission also was that later events had been reported by the daughters in the context of a strained relationship between the Applicant and the daughters.

72. The Applicant denied abuse of the protected person. However, when presented with copies of police records of instances of alleged abuse, the Applicant indicated that he had no recollection of the relevant events.

73. There was past evidence of attempts to control the finances of the protected person including taking away her bank card for allegedly “overspending. That evidence included an instance of the use by the Applicant of the funds of the protected person to pay for his own legal costs. These amounts appear to have been repaid following intervention by the Public Guardian.

74. I accept that the records kept by the police, especially in 2022 and 2024, and the report of Dr Harper reveal concerns about the situation of the protected person. I also accept the evidence of the use of the protected person’s funds by the Applicant.

Options as to accommodation – submissions of the parties

75. The relative merits of each accommodation option under consideration needs to be considered on the basis of legislative scheme described above and the evidence before the Tribunal addressing the matters relevant to that scheme. I set out below a summary of the submissions of the parties as to the accommodation options.

76. One of the options put forward by the Applicant is that the protected person continue so reside with her nephew. Evidence given by the nephew was that his wife and he were able to provide the requisite degree of care. The Applicant, in this regard, submitted that since the date she commenced residing with her nephew, with the approval of the Public Guardian, no matters of concern have been raised and none were in evidence, even if the period of residence has been relatively short, being less than two months.

77. There was evidence that the nephew had cared for his mother-in-law while she suffered from dementia. The Applicant relied on this past experience to support his submissions concerning the suitability of the nephew’s residence as accommodation for the protected person.

78. The nephew’s evidence was that there were no barriers to the daughters visiting their mother at his residence.

79. The Applicant relies on the recommendations made by Dr Ling in his submissions. Those recommendations are that the parties should look into every other alterative before sending the protected person back to the aged care facility. He believed that she could “transition back to her own home” with her partner and “services”.

80. The Applicant also submitted that the visiting hours of the aged care facility provided barriers to access by family and friends. It was also some distance from where the protected person’s partner lived.

81. The Public Guardian accepted the good faith of the nephew in his willingness to offer accommodation. However, their submission was that long term accommodation with her nephew was not viable. There was also no evidence as to the practicalities as to how care would be provided. This included arrangements for supervising the protected person while she showered and dressed herself or administering medication. In circumstances where the ACAT assessment countenanced full time care and no home care package, there was no prospect of the provision of external supports to assist the person. The burden would fall entirely on the nephew and his wife.

82. The Public Guardian accepted that the protected person had a clear and long-standing opposition to residing in an aged care facility and that these wishes should be taken into account. She expressed a wish to remain with her nephew and “ideally prefer very much wish to return home to my own place at some point in time”. She did not feel safe returning to the aged care facility. Nevertheless, in the Public Guardian’s submission, the aged care facility was able to address the protected person’s most immediate care needs to the standard required. There was evidence that the aged care facility understood her needs and had developed strategies to address those needs. It was a facility audited and accredited by the Aged Care Quality and Safety Commission.

83. The Applicant submitted that the decision made had given a significant amount of weight to the concerns of the daughters. The enduring guardians had been the partner and the nephew. There were concerns about the lack of contact by the Public Guardian with the Applicant when making their decision. The Applicant’s position as to the influence of the daughters was in their submission supported by the fact that the aged care facility recommended was close to one of the daughters. The Applicant lived some distance away. The Applicant further submitted that visiting hours at the aged care facility would restrict the ability to visit the protected person.

84. The Public Guardian, however, submitted that accommodation at the aged care facility would not provide any particular barrier to the protected person’s access to the community, her partner, daughters and nephew.

85. The Public Guardian also relied on the evidence of the alleged abuse of the protected person at the hands of the Applicant as a further reason for the preference for her residence at an aged care facility.

86. As regards the allegations of violence against the Applicant, the Applicant says that there was no physical violence. The Applicant submitted that the disputes between the protected person and him were “nothing that would exceed that of a couple living a normal life”. He referred to statements made by the daughters as to the psychological condition of their mother, including reports of threats of self-harm while residing at the property. He submitted that the daughters should not be accepted as having the expertise required to give medical evidence.

87. The Applicant further submitted that placing the protected person in the relevant aged care facility, which was affiliated with the Roman Catholic Church, was not an appropriate choice, given the Jewish identity of the protected person. The second and third Respondents, the daughters of the protected person, in evidence indicated that they had discussed with their mother in the past the prospect of her placement at an aged care facility that provided services to the Jewish community and indicated that obtaining a place in such a facility was a preferred option that remained open.

88. The preferred option put forward by the Applicant was that the protected person return to reside with him at the Property. Alternatively, she should continue residing with her nephew.

89. The Public Guardian submitted that there was evidence of the Applicant’s own health concerns which in the Public Guardian’s submission, could limit the levels of care that could be given to the protected person. This included issues with sensation in his legs that led him to surrender his driver’s licence. Declining mobility prevented him from walking long distances.

90. Concerns were also raised by the Public Guardian about the condition of the property, including the storage of a large number of books and other objects throughout the property, creating potential obstacles to mobility. There was, however, further evidence that these issues concerning the condition of the property had been dealt with and rectified. The Public Guardian, however, indicated that there was no confidence that the property would not return to its former state.

91. The Public Guardian also submitted that the Applicant had a negative attitude to medical staff and their opinions that may prevent him from providing access to the medical care needed. The Applicant on the other hand said that he had attended to the medical needs of the protected person, including taking her for medical appointments, including vaccinations.

92. There was evidence that in October 2022, the former general practitioner who treated the protected person was replaced with a different general practitioner. The Applicant said that the daughters had made efforts to obtain patient information concerning their mother from the former general practitioner. This was a reason for making the change.

Correct and preferable decision

93. The task of the Tribunal in this matter is to decide what is the correct and preferable decision as regards accommodation of the protected person, having regard to the matters set out in s 4 of the Guardianship Act considered above and the evidence. That evidence includes the expert medical evidence, ACAT assessment, the wishes of the protected person and the other matters set out at [61] to [74] above.

94. This is, however, a difficult case. That difficulty arises in circumstances where the medical evidence and ACAT assessment strongly weigh in favour of a decision that accommodation be provided at an aged care facility but the protected person has a strong wish not to remain in an aged care facility.

93. The evidence from the medical experts in question is that the person has impaired cognitive facilities that resulted in an inability on her part to care for herself and requires supported living. The evidence includes a recommendation from a social worker that she be placed in respite care at an aged care facility. Further, the ACAT assessment in evidence, indicates that she is suitable for placement in an age care facility.

94. While there was evidence that the nephew had cared for his mother-in-law who had dementia, there was no relevant evidence as to how her circumstances compared with those of the protected person.

95. What was not in evidence was any independent assessment, whether by ACAT or otherwise, of the suitability of the nephew's residence or the property as a place to accommodate the protected person. The ACAT assessment in question contemplates the possibility of a future assessment for a home care package. Such an assessment, however, had not been made.

96. The difficulties arising in this matter may have been better dealt with had such an assessment being made. Had a conclusion been reached that residing with family was a viable option together with a home care package, this may have been a material consideration going to the determination of this matter. In the absence of any such assessment, the Tribunal is left with the actual assessment made by ACAT that contemplates residence in an aged care facility. This is not an optimal situation given the clear wishes of the protected person and the difficulties in returning her to a place where she has not felt safe. However, it is reasonable for her family to expect that the aged care facility, as an accredited facility, has the responsibility to address these safety concerns.

97. I accept that the nephew of the protected person is willing to provide accommodation and care to the protected person and does so in good faith. He lives with his wife and will not be responsible for providing care on his own. The protected person also expressed a desire to keep living with her nephew for the time being. However, having regard to the medical evidence referred to above as to the consequences of the impaired cognitive ability of the protected person, and the absence of an ACAT assessment concerning accommodation of the protected person in her nephew’s home, I cannot be satisfied that accommodation with her nephew will satisfy her needs at the requisite level. The absence of such an ACAT assessment is not determinative but persuasive.

98. Having regard to Dr Ling's recommendation that all options be considered, it is not clear why an ACAT assessment addressing whether the protected person can remain in the residence of her nephew in accordance with her wishes, has not been undertaken. If at a future date, an ACAT assessment recommends that the protected person could live with her nephew with the appropriate home care package in place, the Public Guardian should reconsider the decision under review.

99. I make the following observations regarding the proposal for the protected person to return to the property. It does not appear to me that residence at the Property with her partner is a better option than accommodation at the relevant aged care facility. I rely in particular on the medical evidence and ACAT assessment that indicate that accommodation at an age care facility is to be preferred. The absence of any ACAT assessment that considers the suitability of the property for residence by the protected person is also relevant in this regard.

100. There were questions raised as to the ability of the Applicant to administer the protected person’s medication. However, Dr Teoh stated that there was “no concern regarding medication safety and compliance”. Nevertheless, for the reasons stated at [99] above, accommodation at the aged care facility remains the preferred option.

101. I also note that the wishes of the protected person to return to the property came with certain qualifications. She did not want an immediate return. She expressed a preference to remain for the time being with her nephew and contemplated a returned to the property “at some point in time”. The evidence of Dr Ling also refers to the prospect of a return to the property at a later time with “services”. The absence of any evidence as to what arrangements have been made to provide such services (including any home care package) weigh in favour of the option of accommodation of the protected person at the aged care facility at the present time.

102. I have found that the consideration of maintaining family relationships would be better served if the protected person remained with her nephew. I have also found that her freedoms may also be better exercised were she to live with her nephew. However, the strong weight of the medical evidence discussed above allows me to the conclude that the correct and preferable decision is that the protected person reside in the relevant age care facility for the time being. I also find that the evidence of her circumstances describe at [69] - [74] above, are relevant to the determination. Even if these considerations did not arise, I do not consider that the weight that needs to be given to the medical evidence and ACAT assessment could be displaced by the considerations that favour the residence of the protected person with her family.

103. The Applicant raised concerns about the restrictions placed upon family by the visiting hours of the aged care facility. There was no evidence provided as to what the visiting hours were. It should, however, be apparent that even if the protected person resided in the home of her nephew or with her partner, it would not be reasonable to expect that visiting at any time during the 24 hours in a day could occur, having regard to the normal daily routine of any household including provision for rest and sleep.

104. I also take note of the Applicant’s submissions concerning the provision of a culturally appropriate environment for the protected person. However, the parties agreed that for the purposes of the matter at hand, consideration of an alternative aged care facility was not an option at the present time that the Tribunal could have regard to. However, this is a matter the Public Guardian should consider, should a place in a more culturally appropriate facility becomes available to the protected person.

105. I do not rely on the statements made by the daughters of the protected person as expert medical evidence. The Applicant is correct in submitting that I should not do so. However, I accept their evidence as to the statements made to them by their mother as to her state of mind.

106. Section 4 of the Guardianship Act requires that paramount consideration be given to the welfare and interests of the protected person. Consideration of the welfare and interests of the protected person and the matters contained in s 4, having regard to the evidence set out above, results in the Tribunal concluding that the correct and preferable decision in these proceedings is to affirm the decision under review.

Conclusion

1. The decision under review is affirmed.

2. Pursuant to ss 64(1)(a) and (c) of the Civil and Administrative Tribunal Act 2013, the publication or broadcast of the names of the Applicant, protected person, children of the protected person and nephew of the protected person is prohibited.

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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

Amendments

25 October 2024 - Paragraph 102 - [99] amended

Decision last updated: 25 October 2024