IO v Public Guardian

[2004] NSWADT 111

CITATION:	IO v Public Guardian [2004] NSWADT 111
DIVISION:	General Division
PARTIES:	APPLICANT IO RESPONDENT Public Guardian
FILE NUMBER:	033302
HEARING DATES:	23/02/2004
SUBMISSIONS CLOSED:	02/23/2004
DATE OF DECISION:	06/04/2004
BEFORE:	Millar J - Judicial Member
APPLICATION:	Guardianship Act - Public Guardian - place to live - Public Guardian - place to live
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Guardianship Act 1987
CASES CITED:
REPRESENTATION:	APPLICANT In person RESPONDENT T Tunbridge, solicitor
ORDERS:	The decision of the Public Guardian is affirmed.

(1A) This section applies only to the following:

(a) proceedings in the Community Services Division of the Tribunal,

(b) appeals to an Appeal Panel from a decision made by the Tribunal in the Community Services Division,

(b1) proceedings in relation to an external appeal made under section 67A of the Guardianship Act 1987 or section 21A of the Protected Estates Act 1983,

(b2) proceedings in relation to a reviewable decision made under the Guardianship Act 1987 or the Protected Estates Act 1983

(c) such other proceedings (or class or classes of proceedings) as may be prescribed by the regulations for the purposes of this section.

(1) A person must not, except with the consent of the Tribunal, publish or broadcast the name of any person:

(a) who appears as a witness before the Tribunal in any proceedings, or

(b) to whom any proceedings before the Tribunal relate, or

(c) who is mentioned or otherwise involved in any proceedings before the Tribunal,

whether before or after the proceedings are disposed of.

Maximum penalty: 10 penalty units or imprisonment for 12 months, or both.

(2) This section does not prohibit the publication or broadcasting of an official report of the proceedings that includes the name of any person the publication or broadcasting of which would otherwise be prohibited by this section.

(3) For the purposes of this section, a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

REASONS FOR DECISION

Introduction

1 On 24 October 2003, the applicant filed an application for review of a decision made by the Public Guardian concerning her mother (“Mrs P”). In the application for review of the decision the applicant gives the date of the decision as 25 September 2003. However it appears from the evidence that the decision was made by the Acting Regional Manager of the Office of the Public Guardian Gosford on 23 September 2003, which itself was the review of a decision made in the first instance by the Public Guardian on 12 August 2003. The decision made was to give consent to Mrs P continuing to reside in Urunga under the care of her granddaughter AR and family permanently.

History

2 Mrs P was born on 7 July 1926 and is 77 years of age. On 11 February 2002 the applicant applied to the Guardianship Tribunal of New South Wales for the appointment of a guardian for Mrs P and for the appointment of a financial manager under the Guardianship Act, 1987. That application was heard by the Tribunal on 26 September 2002. On that day the Tribunal made a guardianship order appointing the Public Guardian as guardian for Mrs P for a period of six months to determine where Mrs P may reside and to make decisions concerning family members having access to Mrs P. On the same day an interim financial management order was made committing management of Mrs P’s financial affairs to the Protective Commissioner.

3 At the time of the hearing before the Guardianship Tribunal, Mrs P was residing at 28 David Street, Mt Pritchard. Mrs P resided in a home on that property while the applicant lived in another home on the same property, which, as the Tribunal understands it, had been constructed upon that property at the applicant’s expense.

4 Mrs P has two daughters being the applicant and another daughter (“AB”). At the time of the guardianship hearing AB was living at 26 David Street, Mt Pritchard. AB has two daughters who shall be referred to as MB and AR.

5 On 11 February 2002, being the same day on which the Guardianship Tribunal received the application for guardianship and financial management orders from the applicant, Mrs P executed a power of attorney pursuant to which she appointed MB and AR as her attorneys jointly and severally.

6 In July 2002, after having resided at 28 David Street, Mt Pritchard for about 50 years, Mrs P began to reside at Urunga with AR and her family. AR is married and resides at Urunga with her husband and their child. Although the applicant says in her evidence that Mrs P and AR and her husband have been absent for periods of several weeks at a time on a number of occasions from Urunga since Mrs P began to live there in July 2002, it seems clear that Urunga has been Mrs P’s place of residence since July 2002. She has not returned to live at the Mt Pritchard property since leaving it in July 2002.

7 The original guardianship order was reviewed by the Guardianship Tribunal on 13 May 2003. Following the hearing which took place on that day before the Tribunal, a further guardianship order was made appointing the Public Guardian as Mrs P’s guardian for a further period of 12 months with the functions of making decisions concerning where Mrs P should reside and access to Mrs P by her family members. The Tribunal also made a financial management order on that day by which management of her property and affairs was committed to the Protective Commissioner.

8 After the hearing on 13 May 2003 before the Tribunal, the Public Guardian made the decision on 12 August 2003, which was affirmed on review by a review officer in the Office of the Public Guardian on 23 September 2003, in respect of which the application for review to the Tribunal was subsequently made on 24 October 2003.

Legislation

9 Section 80A of the Guardianship Act, 1987 provides that an application may be made to the Tribunal for review of a decision of the Public Guardian made in connection with the exercise of the Public Guardian’s functions under the Act as a guardian and which is a decision of a class prescribed by the Regulations for the purposes of s.80A. Regulation 14A of the Guardianship Regulations provides that all decisions of the Public Guardian in connection with its functions are prescribed for the purpose of s.80A of the Act. Accordingly, the decision made by the Public Guardian concerning Mrs P on 12 August 2003 reviewed on 23 September 2003 is a decision in respect of which an application may be made for review to the Tribunal.

10 Section 80A(2) provides that an application under s.80A may be made by certain nominated persons. The only category into which the applicant may fall is that referred to in paragraph (d) of s.80A(2). This category of persons is persons whose interests are, in the opinion of the Tribunal, adversely affected by the decision under review.

11 In conducting the review of the relevant decision of this matter, s.63 of the Administrative Decisions Tribunal Act, 1997 requires that the Tribunal determine whether the Public Guardian has made the “correct and preferable” decision on the basis of any relevant factual material and any applicable written or unwritten law.

12 Further, in conducting a review of the relevant decision, the Tribunal observes the principles set out in s.4 of the Guardianship Act, 1987. This section provides that in exercising functions under the Guardianship Act with respect to a person with a disability, some eight principles are to be observed. These include that the welfare and interests of the person should be given paramount consideration, that the person should be encouraged, as far as possible, to live a normal life in the community, that the views of the person in relation to the exercise of the relevant function should be taken into consideration and the importance of preserving family relationships and the cultural and linguistic environments of the person should be recognised.

Applicant’s Submissions

13 On 19 January 2004 the Applicant provided by facsimile to the Tribunal a document dated 18 January 2004 of eight pages in length. This document contains evidence and submissions on behalf of the applicant. On 19 February 2004 the Applicant forwarded by facsimile to the Tribunal a further document dated 17 February 2004 consisting of 10 pages together with some eight annexures. Again, this document contains evidence and submissions from the applicant. The applicant also made oral submissions at the hearing.

14 The applicant expressed particular concern at the hearing and in her written submissions that the Public Guardian did not seek the views of a number of persons whose names had been provided to it before making the decision under review. Further, the applicant submitted that the persons interviewed by the Office of the Public Guardian were not persons of her mother’s cultural, linguistic or religious background.

15 The applicant submitted that she has a very close relationship with her mother and that it is obviously difficult to maintain this relationship while Mrs P is living at Urunga which is a great distance from where the applicant lives at Mt Pritchard. Further, the applicant submits that her mother is living with persons who do not speak her language, being the Polish language. She submitted that AR is a young woman who cannot speak the Polish language although in the applicant’s view has attempted to create the impression that she can speak the Polish language.

16 The Applicant submitted that Mrs P is missed by members of the Polish community in Sydney and that the community was like an extended family, which included Mrs P. The applicant believes that her mother should be with her and that this is why she went to the Guardianship Tribunal to seek a guardianship order in the first place. In the applicant’s view, her mother should be relocated to Sydney to live for a period of time after which an assessment could be made in order to determine where her mother is more happy, be it in Sydney or Urunga.

17 As a result of Mrs P living at Urunga since July 2002 the applicant has not even seen her mother for well over a year but has had some telephone conversations with her since Christmas 2003. These have taken place each Saturday since Christmas 2003. Mrs P has told the applicant that she wishes to be with her.

18 The applicant submitted that it was a matter of concern that no interpreter had been used for her mother for the purpose of assisting her when visited by doctors and other health professionals for the purpose of making assessments which have become the subject of reported provided in this matter to the Tribunal. In the applicant’s opinion, the absence of an interpreter on these occasions has disadvantaged her mother and must necessarily affect the degree of reliance which can be placed upon the reports resulting from those assessments.

19 The applicant submitted that, in effect, the Public Guardian has failed to take sufficient account of the importance of preserving family relationships and the cultural environment in which her mother was located in Sydney. This environment consisted of long standing friends and members of the Polish community in Sydney.

Respondent’s Submissions

20 The submissions on behalf of the Respondent essentially relied upon the reasons for decision contained in the document setting out the decision of 12 August 2003 and in the document setting out the reasons for review of the decision of 23 September 2003.

21 The Public Guardian’s position in the matter was put by Mr T Tunbridge, solicitor, who appeared for the Public Guardian at the hearing. It was submitted that the views of many persons were taken into account prior to the Public Guardian reaching its decision. The seeking of further views was only ceased when it is said to have become clear that the persons whose names were later provided were only likely to provide views consistent with side of the family who had provided the names.

22 The Public Guardian asserted that a wide range of views were taken into account prior to reaching the decision under review. Account was also taken of the evidence of the Aged Care Assessment Team as contained in the reports of the various health professionals referred to in the documents supplied to the Tribunal by the Public Guardian.

23 In making the original decision, the Public Guardian asserted that it had taken into account the importance of preserving the family relationships and the cultural and linguistic environment of Mrs P. However, it had also taken into account the view of Dr J O’Callaghan, geriatrician, to the effect that Mrs P had had no recent contact with people from her past in the Polish community and in his opinion there would be no particular advantage in her renewed contact with members of the Polish community in Sydney.

24 Further, the Public Guardian had sought Mrs P’s views in relation to her accommodation in a visit on 30 October 2002 at which time Mrs P indicated that she was satisfied with her current accommodation arrangements. However, the Public Guardian took into account Mrs P’s ability to provide an informed view about her accommodation having regard to her degree of dementia.

25 The Public Guardian also took into account that the Liverpool Aged Care Assessment Team had reported adversely in relation to Mrs P’s home at Mt Pritchard as a suitable place of accommodation for her if she was to return to Sydney. Having regard to the fact that Mrs P was settled in her current accommodation and not at risk and that her care needs were being met, the Public Guardian took the view that Mrs P should not return to live at Mt Pritchard whether in her original home or in the home of the applicant. Account was also taken of the assessment of Dr O’Callaghan to the effect that a change in environment for Mrs P may increase her confusion and have an adverse effect upon her mental state.

Reasons and Decision

26 As indicated above, s.80A(2) of the Guardianship Act, 1987 provides that an application for review of a relevant decision by the Tribunal may be made by certain persons. The only category of persons which may include the applicant is as follows:

“Any other person whose interests are, in the opinion of the ADT, adversely affected by the decision.”
27 The applicant is the daughter of Mrs P. It is clear from the evidence that the applicant has a close, loving, longstanding relationship with her mother. While her mother resided in Sydney she lived at the same property as the applicant although in a separate house, the property being in the nature of a dual occupancy.

28 In the Tribunal’s opinion the applicant has an obvious interest in preserving and strengthening her relationship with her mother. If her mother relocates to a residence far removed from that of the applicant, then the applicant’s interests are adversely affected by the decision which caused her mother to be relocated. The result of such a decision can be, and apparently has been, a source of distress and anxiety to the applicant and makes the maintenance of her relationship with her mother far more difficult having regard to the physical distance between their two residences while Mrs P remains living at Urunga.

29 For these reasons the Tribunal is of the view that the applicant is a person of the kind referred to in s.80A(2)(d) of the Guardianship Act, 1987 and accordingly has standing to bring the present application. In any event, no issue as to the applicant’s standing to bring the application was raised at the hearing by the Public Guardian.

30 In reviewing the Public Guardian’s decision, the Tribunal took into account the following documents:

a) Reports of Dr J O’Callaghan dated 6 December 2002 and 22 July 2003.

b) Report of Helen Nixon, occupational therapist dated 23 January 2003.

c) Report of Richard Gliva, property services office of the Protective Commissioner dated 25 February 2003.

d) Report of Bich Le, occupational therapist, dated 11 March 2003.

e) Report of Peter Caban, clinical nurse consultant dated 1 March 2003.

f) Aged care application and approval from dated 28 March 2003.

g) Affidavit of G J Smith sworn 3 February 2004, filed 5 February 2004.

h) Affidavit of G J Smith sworn 6 February 2004, filed 10 February 2004.

i) Schedule of persons contacted by the Office of the Public Guardian in relation to Mrs P’s long term care and accommodation.

j) Running notes of the Office of the Public Guardian from 6 May to 29 October 2003.

31 In the course of the hearing, the applicant tendered a letter to her from the Office of the Public Guardian dated 23 December 2003 and a complaint and summons – apprehended violence issued by Local Court Bellingen on 12 February 2003 on the complaint of AR against the applicant.

32 From the documents referred to above, it is apparent that a number of health professionals have visited Mrs P while she has been residing at Urunga. Dr J O’Callaghan, geriatrician, records that he has visited Mrs P at the home at Urunga on 25 July 2002, 4 December 2002 and 17 July 2003. In his report of 6 December 2002 he states that apart from having an injury to her right arm at the time of his visit on 4 December 2002, Mrs P had changed little from his visit on 25 July 2002. She appeared cheerful and sociable in her surroundings. Communication with her was difficult by reason of her dementia and her use of Polish at times while speaking. He reports that Mrs P appeared happy and well cared for.

33 In is report of 22 July 2003, Dr O’Callaghan recorded that when he visited Mrs P on 17 July 2003 she again appeared cheerful and was well cared for, although she required constant supervision.

34 In his report of 31 March 2003, Peter Caban, clinical nurse consultant of the Aged Care Assessment Team stated that he had visited Mrs P at the home at Urunga on 28 March 2003. On this occasion Mrs P was happy and enjoying the arrival of a new baby in the home. She appeared well and was managing well with assistance and direction from AR although she displayed some confusion and was difficult to understand.

35 In a report of 23 January 2003, Helen Nixon, occupational therapist, stated that she visited Mrs P on 23 January 2003 and found her to be alert, active and happy.

36 An officer of the Public Guardian’s Office visited Mrs P on 30 October 2002 at Urunga and recorded that Mrs P indicated that she was happy residing in Urunga with AR and her family. In considering this and any other view expressed by Mrs P, it is appreciated that the weight to be given to such views is affected by the fact that Mrs P was found by the Guardianship Tribunal to have significant cognitive impairment resulting from dementia of either the Alzheimers type or a combination of Alzheimers and vascular dementia. She was found to have significant memory disturbance and confusion and at the original hearing was unable to even name members of her family.

37 The Tribunal accepts the applicant’s submission to the effect that if Mrs P was to be relocated to Sydney she could renew contact with members of Polish community in Sydney. There is no evidence that there are any persons of Polish ethnic origin in or around Urunga. There is no evidence that anyone who has contact with Mrs P in Urunga speaks Polish. Further, the Tribunal accepts that if Mrs P was to relocate to Sydney then the applicant would be better able to maintain and strengthen her relationship with her mother for whom she obviously has great love and affection. In considering the question of relocating to Sydney, it is necessary to consider the accommodation options in Sydney.

38 With respect to Mrs P’s home at Mt Pritchard the Tribunal took into account the reports of Bich Le, occupational therapist with Liverpool Aged Care Assessment Team dated 11 March 2003 and the report of Richard Gliva, directors' units/property services of the Office of the Protective Commissioner dated 25 February 2003. In the first of these reports, many concerns were identified with regard to the current state of the house at 28 David Street, Mt Pritchard which it is said would affect Mrs P’s safety. The house was said to be poorly maintained. Windows were difficult to open, the bath tub was rusted, no support rail was available in the bathroom, lights were not working in some rooms, there were exposed electrical wires, the steps to the home did not have a support rail and the toilet was located outside of the home, some 20 metres away. The toilet was reached by a narrow footpath sloping down hill from the house and at the time of the visit the light in the toilet was not working.

39 A second visit to the property was undertaken on 6 May 2003 at which the applicant was present. The applicant apparently indicated that her mother would live in the applicant’s home if she was to return to Sydney. From the description given in the report, it appears that this home was more suitable for Mrs P as a place of accommodation than her original home. Mr Gliva highlighted a number of deficiencies in Mrs P’s home which he regarded as being in very poor condition and requiring extensive repair. Having regard to the evidence in these reports it appears that Mrs P’s original home at 28 David Street, Mt Pritchard is most unsuitable as a place of accommodation for her given her level of disability, her age and her high care needs.

40 With respect to the home at Urunga where Mrs P has been residing since July 2002, there is no evidence before the Tribunal to suggest that that accommodation is unsatisfactory for Mrs P. The various health professionals whose reports are in evidence before the Tribunal and who have visited Mrs P at the Urunga home contain no criticism of her accommodation and the applicant did not make any submissions to the Tribunal to the effect that the accommodation was unsuitable to Mrs P.

41 Before making the decision on 12 August 2003 that Mrs P should reside at Urunga, the Public Guardian obtained a report from Dr O’Callaghan, geriatrician, dated 22 July 2003. In this report, Dr O’Callaghan refers to his recent visit to Mrs P at the Urunga home on 17 July 2003. In this report, Dr O’Callaghan recorded that Mrs P requires constant supervision. He goes on to specifically consider the question of contact by Mrs P with members of the Polish community in Sydney. He records his view that Mrs P had had no recent contact with people from her past in the local Polish community and that he did not see any particular advantage for her in renewing contact with the members of the Polish community in Sydney, suggesting that she may not remember her local priest. Although one cannot be certain, it must be very doubtful whether Mrs P would remember members of the Polish community in Sydney having regard to her degree of dementia and the period of time in which she has been absent from Sydney and during which she has not seen those persons.

42 Importantly, Dr O’Callaghan specifically considers in his report the consequences of a change in environment for Mrs P if she was to be relocated from Urunga. In his opinion, such a change would increase Mrs P’s confusion and adversely affect her mental state. He says that she would be at greater risk of wandering in a strange new environment, possibly looking for her current carer, AR, on whom she is very dependent. Further, in his opinion, she would not quickly settle into a new environment. In the Tribunal’s view this evidence is critical to the determination of this matter. Section 4 of the Guardianship Act requires that the welfare and interests of Mrs P be given paramount consideration in making the relevant decision in this matter concerning her accommodation. This evidence from Dr O’Callaghan is based upon his observations of Mrs P. These observations are made with the benefit of at least three attendances upon Mrs P at the Urunga home on 25 July and 4 December 2002 and 17 July 2003. Having regard to the fact that these visits to Mrs P are over a 12 month period and that Dr O’Callaghan is a geriatrician, his views as to the consequences of a change in environment for Mrs P deserve great weight. In the Tribunal’s opinion the effect of his evidence is to indicate that there is a significant risk to the health and welfare of Mrs P if she is to be relocated from Urunga to Sydney thereby moving away from familiar accommodation where she has become well settled and at least appears happy and away from AR who has been her daily carer for a significant period of time and upon whom, according to Dr O’Callaghan, Mrs P has become very dependent.

43 The applicant says in her submission dated 18 February 2004 that it could be that her mother may be even happier in her home surroundings at Mt Pritchard than she is at Urunga and that the only way to determine which is the preferable environment is to allow her to reside with the applicant in her home for a while and make a comparison of the two situations. While this is an understandable point of view, in the Tribunal’s opinion it involves an experiment the price of which may be a detrimental effect upon Mrs P’s health and welfare. It would have the advantage that the applicant would live with her mother and no doubt her mother would benefit from the applicant’s care and affection while they live together. However, Dr O’Callaghan identifies a matter of great concern about the consequences for Mrs P’s mental health if she was to move away from what has become her familiar environment and her familiar daily carer.

44 The applicant raised at the hearing and in her written submissions the failure of the Public Guardian to consult a number of nominated persons and seek their views before making the decision that Mrs P should reside at Urunga. An examination of the whole of the evidence leads the Tribunal to agree with the views of the Public Guardian that numerous persons were consulted in order to obtain their views as to the most appropriate living arrangements for Mrs P prior to the decision being made. It appears that the Public Guardian went to some trouble to contact many of the nominated persons, although not all of them, and the Tribunal makes no criticism of the failure to contact every one of them. While the views of relatives and friends of Mrs P are properly taken into account before a decision is made about her welfare, the Public Guardian also had to take into account the opinions of the health professionals who had attended Mrs P, in particular, the views of her geriatrician. It is difficult to imagine that the views of other relatives or friends could have led the Public Guardian to make a different decision than the decision of 12 August 2003, having regard to the evidence available from the health professionals referred to in the reports which were available to the Public Guardian. For these reasons, the Tribunal is of the view that the decision made by the Public Guardian that Mrs P continue to reside in Urunga was the correct and preferable decision and on the evidence available to the Tribunal, remains so.

45 For these reasons the decision of the Public Guardian is affirmed.