In the Matter Of Pari (Guardianship and Management of Property)
[2019] ACAT 120
•20 December 2019
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
IN THE MATTER OF PARI (Guardianship and Management of Property) [2019] ACAT 120
GT 158/2019
Catchwords: GUARDIANSHIP AND MANAGEMENT OF PROPERTY – subject person living itinerant lifestyle – application for public trustee and guardian to be appointed guardian and manager – whether the subject person has impaired decision-making ability in relation to a matter relating to the person’s health or welfare – whether there is a decision, or likely to be a decision, that needs to be made in relation to the subject person – whether the subject person’s needs will not be met if a guardian is not appointed – subject person’s circumstances are social, health and welfare issues – application dismissed
Legislation cited: Guardianship and Management of Property Act 1991 s 7, pt 2A
Cases cited: A v Guardianship and Management of Property Tribunal [1999] ACTSC 77
In the Matter of ER [2015] ACAT 73
In the matter of Jane [2019] ACAT 18
J v Guardianship and Administration Board [2019] TASSC 15
KK v STCC [2012] EWCOP 2136
Tribunal: Presidential Member G McCarthy
Date of Orders: 29 November 2019
Date of Reasons for Decision: 20 December 2019AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) GT 158/2019
IN THE MATTER OF PARI
TRIBUNAL: Presidential Member G McCarthy
DATE: 29 November 2019
ORDER
The Tribunal orders that:
1. The application dated 22 November 2019 is dismissed.
……………Signed……………..
Presidential Member G McCarthy
REASONS FOR DECISION
1. By application dated 22 November 2019, Ms Shaw, a social worker with The Canberra Hospital, applied for the appointment of the Public Trustee and Guardian (PTG) as guardian and manager for an Afghani woman who I will refer to in my reasons as Pari.
2. Ms Shaw provided, in support of the application, a detailed report from herself and Ms Bateman, another social worker; a letter (undated) from Dr Choudhry, geriatrician at Canberra Hospital; a care plan dated 21 November 2019 prepared by Dona Dolphus, clinical care coordinator; a report dated 22 November 2019 from Simone Conchin, clinical dietician; and a report dated 27 November 2019 from Amy Jordan, occupational therapist.
3. Ms Shaw reports that Pari was born in Afghanistan and moved to Iran over 30 years ago. She is 73 years old. In 2014, Pari and her daughters, Roya aged 52 and Tela aged 48, came to Australia as refugees (Women at Risk Status). They are believed to have an extensive trauma history. They are extremely dependent on each other, and have been for many years. I was told that since arriving in Australia, Pari and her daughters have been ‘sleeping rough’ for many years. These observations were consistent with their presentation at the hearing.
4. An officer from the Australian Federal Police (AFP) attended the hearing. She said that Pari and her daughters have been the subject of police reports approximately 85 times since arriving in Canberra from Sydney 11 months ago. Some were reports from concerned citizens who have observed Pari and her daughters fending for themselves in rubbish bins and living in a homeless state. Other reports involved possible offences, for example staying in hotels and then leaving without paying for their accommodation. At the hearing, Pari’s daughters denied these alleged offences.
5. On 1 November 2019, officers of the AFP and ACT Ambulance brought Pari, Roya and Tela to Canberra Hospital. Pari has been living at the hospital ever since, primarily because no one has found a suitable place to which she can be discharged.
6. Ms Shaw and Ms Bateman stated their belief that there are a number of risks if Pari was discharged without a decision maker. “These risks are exacerbated [by] her: age; increasing care needs; and [her] reluctance to date to engage with supports and services, including housing.” Ms Shaw and Ms Bateman state that Pari and her daughters were offered housing in NSW, but declined it.
7. In his report, Dr Choudhry stated, and I accept, that Pari is “severely malnourished, very hungry”, has “poor dentition” and has “a lot of skin damage”. He advised that she “frequently calls out her daughter’s name”, has been wandering and has a tendency to get lost. He reports that she “requires full assistance with all her ADLs including showering, dressing, meal set-up and toileting.” Dr Choudhry stated “This all points towards advanced cognitive impairment. However due to language barriers, this was potentially incomplete.”
8. Ms Dolphus also stated that Pari “requires full assistance with activities of daily living”.
9. Pari is non-English speaking and needed to communicate through an interpreter. Dr Choudhry reported inaccurate or fluctuating responses, through the interpreter, to simple questions that he asked her. He stated that her ‘yes and no’ style of conversation suggested diminished language fluency. He reported Pari having no recall of support service personnel contacting her, “raising the prospect of profound memory loss”. In his view, various indicators “point towards Alzheimer’s dementia as the underlying pathology.”
10. Dr Choudhry reported:
Given that she is homeless, suffers from undiagnosed dementia, has severe malnourishment with the above picture, she lacks higher-level cognitive functioning to live on her own and manage her affairs.
This involves health care decisions (severe neglect as above), finances (has minimal executive function) and accommodation (homeless and previous services refused).
11. Dr Choudhry reported Pari having “rotten food in her bag” and “extreme stress and pacing whenever the daughters … have visited.” He reported that the AFP had been involved multiple times in the past with Pari and her daughters. Dr Choudhry suggested this “potentially points towards the inability of the daughters to look after [Pari’s] affairs.” Dr Choudhry suggested that Pari “is at risk of self-harm and will need appointing of a guardian to assist her in making decisions in regards to the suggested domains”, meaning health care, accommodation and finances.
12. Dr Choudhry attended the hearing and gave evidence in support of the application. He is plainly, and very appropriately, concerned about Pari’s health and welfare. He is concerned about her eating rotten food, her poor dentition, and her homelessness. He noted that Pari and her daughters have rejected support services. In his view, Pari needs high-level institutional care. He spoke about ACT Health’s “duty of care” to Pari, and that to leave her living in her homeless and vulnerable state would come close to elder abuse.
13. Pari attended the hearing with Roya and Tela. I was told there is a third daughter who lives in Sydney who wished to participate in the hearing by telephone, but attempts to contact her were unsuccessful.
14. Through an interpreter, it became very clear that Pari and her daughters have a very close relationship and are very dependent on each other. Collectively, through the interpreter, they explained that they wish to stay in Canberra, especially if a home could be found for them. They rejected any suggestion that they were unable to care for themselves or unable to live in the way they wish to live. Simone Conchin reports about Pari’s daughters bringing food to Pari in the hospital of the kind Pari wished to eat, meaning Zouki meals (fried chicken roll, salads and hot chips) and them stating that “food is not required from the hospital”.
15. Despite the efforts of an interpreter, I gained a strong impression that Pari had no understanding of what the appointment of the PTG as her guardian and/or manager would mean for her. Culturally, it appeared to be a completely irrelevant concept for Pari, and that she and her daughters would continue living their lives, together, in the way they have always done irrespective of whether the PTG was appointed. Roya made it clear that she is responsible for looking after her mother, is already making decisions for her and would continue to do so.
16. After hearing from Pari, her daughters, Dr Choudhry, the AFP officer, Ms Halsey from the Office of the ACT Public Advocate, and Zouheir from the ACT Human Rights Commission, I dismissed the application for appointment of the PTG as Pari’s guardian and manager. My reasons follow.
17. In order to appoint a guardian for a person, the Tribunal must be satisfied of the three matters set out in section 7 of the Guardianship and Management of Property Act 1991 (the Act).
18. The first is that the person has impaired decision-making ability, not generally, but “in relation to a matter relating to the person’s health or welfare”. This accommodates the concept that a person may have decision-making ability in relation to some matters concerning their health or welfare, but not others.
19. The second is that there is, or is likely to be, a need for a decision in relation to the matter about which the person has impaired decision-making ability, or that the person “is likely to do something in relation to the matter” about which the person has impaired decision-making ability that involves an unreasonable risk to themself.
20. The third is that if a guardian is not appointed, the person’s needs will not be met or the person’s interests will be significantly adversely affected.
21. I gave careful consideration to Dr Choudhry’s report, his comments during the hearing and the opinions of others in support of the application, but, with much respect, they did not satisfy me that Pari has impaired decision-making ability in relation to a matter concerning her health and welfare. Dr Choudhry’s opinion, in summary, seems to be that because Pari is malnourished, wanders and is in need of extensive assistance in her daily health care, she probably has “advanced cognitive impairment”. Dr Choudhry acknowledged uncertainty, because of language barriers, about that diagnosis.
22. I had real doubts that Pari’s lifestyle and circumstances are a product of impaired decision-making ability. Through the interpreter, and in conversation with her daughters, I gained a strong impression that Pari has lived in a manner approximating her present circumstances for many years and perhaps much of her life. I came to the conclusion that how she lives is primarily a function of her lifestyle and ‘situation’ in life, rather than impaired decision making-ability.
23. This case has significant factual similarities with that considered by Justice Wood of the Supreme Court of Tasmania earlier this year in J v Guardianship and Administration Board [2019] TASSC 15, where the Court considered the circumstances of a mature age man who was living a lifestyle that placed his health and welfare at severe risk. The medical evidence was to the effect that he was doing so because of lack of insight, meaning cognitive impairment, in relation to his circumstances. The Court was not persuaded that the person’s poor decisions about his health and welfare meant that he lacked capacity to make those decisions. As the Court pointed out,
There is a need for caution about … treating a poor decision as demonstrating lack of insight and poor reasoning and as supporting an inference of a cognitive impairment.
24. To a significant degree, Pari’s statements at the hearing about her health and welfare led me to think that she wished to continue living as she has always done, however poor a lifestyle others might (reasonably) regard it.
25. I commented upon this dilemma in my decision, In the matter of Jane. I noted that the legislature’s observation that when making decisions about a person, the views and wishes of the person should receive paramount consideration unless doing so is likely to significantly adversely affect their interests. I referred to decisions of several Supreme Courts, including a decision of the ACT Supreme Court in A v Guardianship and Management of Property Tribunal which is binding on me, in which the Courts spoke about the importance of ensuring that the proviso does not override the general rule, and to guard against paternalism or protection overriding individual autonomy.
26. In ER, the Tribunal referred to the decision of Justice Baker of the Court of Protection (England and Wales) in KK v STCC where his Honour said:
There is, I perceive, a danger that professionals, including judges, may objectively conflate a capacity assessment with a best interests analysis. … I remind myself again of the danger of the ‘protection imperative’ identified by Ryder J in Oldham MBC v GW and PW ([2007] EWHC136 (Fam) [2007] 2 FLR 597). These considerations underpin the cardinal rule, enshrined in statute, that a person is not to be treated as unable to make a decision merely because she makes what is perceived as being an unwise one.
27. The ability to appoint a guardian also ran into difficulty regarding the second and third factors about which the Tribunal needs to be satisfied. Dr Choudhry suggested that, in the interests of her health and welfare, Pari needed to be placed in institutional care, but there was no evidence as to where she might be placed, or her views about institutional care, or her understanding of her options.
28. Also, Dr Choudhry expressed concern about the ability of Roya and Tela to care for their mother. However, I was concerned that that valid opinion did not sufficiently take into account Pari’s point of view. Probably the most important thing for Pari is to be living with her daughters and for them to be caring for her, even if others could (clinically) do better. That wish is plainly reciprocated.
29. These women, I think, have suffered much adversity thought their lives and have survived by looking after each other. I respect and understand Dr Choudhry’s concern, but his concern was (I respectfully suggest) from his perspective not theirs.
30. Taking into account their cultural background, their lack of connection with support services and their intensely important family interconnection, it is difficult to imagine Pari living otherwise than with her daughters or accepting advice and support from anyone without her daughters’ input and agreement. Referring to the third factor that must be satisfied in order to appoint a guardian, what purpose therefore would be served by appointing the PTG as Pari’s guardian?
31. Regarding health treatment, to the extent there is any concern about Pari having capacity to give consent to treatment, her daughters can give that consent as her ‘health attorneys’ under Part 2A of the Act. Also, there was no evidence of any treatment that Pari needs, but is not presently receiving, because a guardian has not been appointed.
32. Regarding accommodation, there was no evidence about where Pari might live, or whether her daughters could live with her, or whether she would agree to live in proposed accommodation (noting that a guardian cannot force a person to do something they are refusing to do). There was also no evidence about whether an ability to access available accommodation would require a decision to be made on her behalf by a guardian (for example, entering into a contract on her behalf).
33. In conclusion, as matters presently stand, Pari’s circumstances (and those of her daughters) are social, health and welfare issues that remain to be addressed.
34. I acknowledge that, at a later time, the need for appointment of a guardian might arise. For example, assuming Pari and her daughters choose to stay in Canberra rather than return to Sydney, and assuming accommodation can be found for them which they choose to accept over alternative options (for example, continuing to live an itinerant lifestyle) and assuming that a decision needs to be made by a guardian in order for them to access available accommodation, then a very different scenario arises.
35. It needs to be remembered that it is not the PTG’s role to find accommodation: it will look to social workers for advice about available options.
36. I make similar observations about the proposed appointment of a manager. The three factors that apply for appointment of a guardian also apply for the appointment of a manager.
37. Whether Pari has impaired decision-making ability must be assessed “in relation to” her financial matters or matters affecting her property.
38. Regarding her finances, no one could tell me what her finances are (although I assume they are very limited), and the evidence suggested that Pari and her daughters manage their respective finances collectively. Nor was there any evidence suggesting a need for decisions to be made regarding her finances. On the evidence, Pari and her daughters already obtain financial support from the Commonwealth via Centrelink. I had no reason to doubt that Pari’s daughters use her money for her benefit, for example to buy food for her. I could not see a basis upon which that task should be taken from the daughters and given to the PTG.
39. Again, I acknowledge that, in different circumstances yet to be known, the appointment of a manager might become necessary. For example, if issues were to arise about Pari accessing other financial support and an inability to do so unless she has a manager, or concerns were raised that her finances are being mismanaged or might be mismanaged if the PTG was not appointed, then the question of appointment of the PTG as manager might arise. But none of those circumstances arose at the hearing.
40. Last, there was no evidence about what property Pari owns, save perhaps her clothes and personal effects, or anything to suggest that a decision needs to be made about management of her property, or why the PTG should be appointed to manage it.
41. In conclusion, I acknowledge that Pari and her daughters present a very challenging social circumstance, but I was not persuaded that appointment of a guardian or manager, at this time, would help to address that circumstance in any material way.
42. It may well be that, with dialogue and guidance, social services and supports can be put in place that will address Pari’s needs to the extent practicable without appointment of a guardian or manager.
………………………………..
Presidential Member G McCarthy
HEARING DETAILS
FILE NUMBER:
GT 158/2019
PARTIES, APPLICANT:
Australian Capital Territory
PARTIES, SUBJECT PERSON:
Pari
TRIBUNAL MEMBERS:
Presidential Member G McCarthy
DATES OF HEARING:
29 November 2019
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