LE and LF v Public Guardian - [2009] NSWADT 78

CITATION: LE and LF v Public Guardian [2009] NSWADT 78

DIVISION: General Division

PARTIES:
APPLICANTS
(1) LE
(2) LF
RESPONDENT
Public Guardian

FILE NUMBER: 083385

HEARING DATES: 1 April 2009

SUBMISSIONS CLOSED: 1 April 2009

DATE OF DECISION:
9 April 2009

BEFORE: O'Connor K - DCJ (President)

CATCHWORDS: GUARDIANSHIP – Review of Decisions of Public Guardian – Protected Person in state of Post-Coma Unresponsiveness – Advance Care Plan – Withdrawal of Life Support – Refusal of Alternative Treatment Proposal – Conflicting Wishes of Family Members – Legal and Ethical Considerations – Decisions Affirmed

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Guardianship Act 1987

CASES CITED: Airedale National Health Service; Auckland Area Health Board v Attorney General [1993] 1 NZLR 235
FI v Public Guardian [2008] NSWADT 263
Gardner; re BWV [2003] VSC 173
Hunter Area Health Service v Marchlewski (2000) 51 NSWLR 264
Messiha v South East Health [2004] NSWSC 1061
Northbridge v Central Sydney Area Health Service (2000) 50 NSWLR 549
Public Advocate v RCS (Guardianship) [2004] VCAT 1880
Re G [1997] 2 NZLR 201
Re Korp (Guardianship) [2005] VCAT 779
ZS and ZT v Public Guardian [2007] NSWADT 57

REPRESENTATION:
APPLICANTS
In person
RESPONDENT
E Boyle of counsel / E Mee, Crown Solicitor's Office

ORDERS: 1. Application for review dismissed.
2. Decisions under review affirmed.

1 Mr A was severely injured on 3 June 2005 as a result of an accident that occurred while fishing from the rocks. He almost drowned. While he survived, he has hypoxic brain damage (i.e. inadequate availability of oxygen).

2 Mr A has been assessed as being in a state of post-coma unresponsiveness (a term that is now used in preference to the term, persistent vegetative state). He receives 24-hour nursing care. He is being kept alive by artificial means. He is a patient in a nursing home.

3 He was born on 11 October 1961 and is now aged 47 years. He migrated to Australia with his wife, W, and son S in 1996. S is now 20 years old.

4 The Guardianship Tribunal (the Tribunal) has made a financial management order allowing Ms W to manage Mr A’s financial affairs. The Tribunal has appointed the Public Guardian as his guardian with responsibility for making various decisions in relation to his accommodation and health needs, including ‘to make end of life health care decisions, including advance care planning decisions’.

5 The function of this Tribunal, the Administrative Decisions Tribunal (the ADT) is to review certain decisions made by government officials and government agencies in New South Wales and to decide whether they are the correct and preferable ones in the circumstances. Decisions made by the Public Guardian in relation to the care of persons under guardianship are among the decisions that the ADT may review. See Guardianship Act 1987, s 80A; Administrative Decisions Tribunal Act 1997, s 38, s 63.

The Application for Review

6 Mr A’s niece, Ms LF, and her husband, Mr LE, applied on 24 December 2008…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2009] NSWADT 78
Decision Date: 9 April 2009

CaseChat Overview and Summary

The case involved LE and LF, who sought a review of decisions made by the Public Guardian concerning a protected person in a state of post-coma unresponsiveness. The primary dispute centred around the withdrawal of life support and the refusal of an alternative treatment proposal, with conflicting wishes among the family members. The application was brought before the court to review the Public Guardian's decisions, focusing on the ethical and legal considerations that underpinned these choices.

The court was tasked with determining whether the Public Guardian's decisions were lawful, reasonable, and in the best interests of the protected person. This involved examining the Advance Care Plan, assessing the evidence provided by medical professionals, and evaluating the wishes of the family members. The court also had to consider the legal framework governing guardianship and the Public Guardian's statutory duties under the Guardianship and Administration Act 2000.

In reaching its decision, the court thoroughly reviewed the evidence and the legal principles applicable to the case. It found that the Public Guardian had carefully considered all relevant factors, including the Advance Care Plan and the medical advice, and had acted in accordance with the statutory obligations. The court concluded that the Public Guardian's decisions were both lawful and in the best interests of the protected person. As a result, the application for review was dismissed, and the decisions under review were affirmed.

The final orders of the court were to dismiss the application for review and to affirm the decisions of the Public Guardian. This decision underscores the importance of adhering to the statutory framework and the need for careful consideration of all relevant factors when making decisions concerning protected persons.

Orders

Orders of the court

1. Application for review dismissed. 2. Decisions under review affirmed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	LE and LF v Public Guardian [2009] NSWADT 78
DIVISION:	General Division
PARTIES:	APPLICANTS (1) LE (2) LF RESPONDENT Public Guardian
FILE NUMBER:	083385
HEARING DATES:	1 April 2009
SUBMISSIONS CLOSED:	1 April 2009
DATE OF DECISION:	9 April 2009
BEFORE:	O'Connor K - DCJ (President)
CATCHWORDS:	GUARDIANSHIP – Review of Decisions of Public Guardian – Protected Person in state of Post-Coma Unresponsiveness – Advance Care Plan – Withdrawal of Life Support – Refusal of Alternative Treatment Proposal – Conflicting Wishes of Family Members – Legal and Ethical Considerations – Decisions Affirmed
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Guardianship Act 1987
CASES CITED:	Airedale National Health Service; Auckland Area Health Board v Attorney General [1993] 1 NZLR 235 FI v Public Guardian [2008] NSWADT 263 Gardner; re BWV [2003] VSC 173 Hunter Area Health Service v Marchlewski (2000) 51 NSWLR 264 Messiha v South East Health [2004] NSWSC 1061 Northbridge v Central Sydney Area Health Service (2000) 50 NSWLR 549 Public Advocate v RCS (Guardianship) [2004] VCAT 1880 Re G [1997] 2 NZLR 201 Re Korp (Guardianship) [2005] VCAT 779 ZS and ZT v Public Guardian [2007] NSWADT 57
REPRESENTATION:	APPLICANTS In person RESPONDENT E Boyle of counsel / E Mee, Crown Solicitor's Office
ORDERS:	1. Application for review dismissed. 2. Decisions under review affirmed.