Nu v Protective Commissioner

[2005] NSWADT 62

CITATION:	NU v Protective Commissioner [2005] NSWADT 62
DIVISION:	General Division
PARTIES:	APPLICANT NU RESPONDENT Protective Commissioner
FILE NUMBER:	043387
HEARING DATES:	16/02/2005
SUBMISSIONS CLOSED:	02/16/2005
DATE OF DECISION:	03/22/2005
BEFORE:	Hennessy N - Magistrate (Deputy President)
APPLICATION:	Protected Estates Act - Protective Commissioner - powers as to property - Protective Commissioner - powers as to property
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Protected Estates Act 1983
CASES CITED:
REPRESENTATION:	APPLICANT B Hassett, solicitor RESPONDENT T Tunbridge, solicitor
ORDERS:	The decision of the Protective Commissioner to sell NU's property is affirmed

Section 126 of the Administrative Decisions Tribunal Act 1997 applies to this decision.
Section 126 provides
(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 NU is a 55 year old woman who is living in a nursing home. The reason that she is living in a nursing home at such a relatively young age is that there is no suitable alternative accommodation available to her. She has a long history of uncontrolled epilepsy and has grand mal seizures despite taking medication. She has also been diagnosed with a chronic organic brain syndrome characterised by impulsivity, aggressive outbursts, deficient organisational planning and reasoning ability and markedly impaired judgement and lack of insight. According to her general practitioner, she is quite stable at the moment. The Protective Commissioner is the manager of NU’s estate and is authorised to make decisions about her financial affairs.

2 Recently the Protective Commissioner decided to sell NU’s house in order to pay for services that he says she requires. NU says that she does not want any additional services and is adamant that she does not want her house to be sold. She has applied to the Tribunal for a review of the Protective Commissioner’s decision to sell her house. The Tribunal appointed The Aged Care Rights Service (TARS) to represent NU’s best interests. Ms Hassett from TARS submitted that the property should not be sold.

Issues

3 The issue for the Tribunal is whether the Protective Commissioner’s decision to sell NU’s house is the “correct and preferable” decision. In making that determination I must take into account any relevant factual material and any applicable written or unwritten law. The relevant factual material includes:

- NU’s current and future accommodation needs,

- NU’s other needs;

- NU’s financial circumstances, and

- NU’s views and the views of family members.

Current and future accommodation needs

4 NU said that she has been living in the nursing home for nine years and wants to return to live in her own home in about 12 months time when she anticipates she will be medically stable and able to walk without a walking frame. She said that if her house were sold, she would have nowhere to live. Although NU says that she wants to return to her home, the evidence from her general practitioner, a neuropsychologist and a psychiatrist was that she is unable to live independently in the community and that she will continue to require nursing home accommodation for the foreseeable future. In addition, the Public Guardian, who is NU’s guardian in relation to decisions about accommodation, has expressed the view that NU will not be returning home to live. We are satisfied that NU will continue to live in the nursing home or other supported accommodation for the foreseeable future.

NU’s other needs

5 As well as the need for accommodation, NU has other needs that must be met. While she is stable at times she occasionally becomes aggressive, non-responsive and extremely difficult to manage. At these times of crisis, NU requires one to one care by a person with psychiatric training. That kind of intensive and highly skilled care can only be provided by either the director or deputy director of nursing. Those women are not always available at these times. As well as exhibiting aggressive behaviours, NU also places extra demands on nursing home staff by making frequent complaints to both the nursing home management and other agencies including the Protective Commissioner.

6 Given this situation, the nursing home asked the Protective Commissioner to assess NU’s need for extra services. Ms Southern from Access Brain Injury Services provided written recommendations suggesting attendant carer support. The Protective Commissioner also organised an assessment of NU and her needs by Ms Barbara Liddle, a neuropsychologist. Ms Liddell prepared a report dated 19 February 2003, which recommended that NU participate in more activities to maintain her interest and reduce her demands on staff time and resources. She suggested that independent attendant carers be employed to take her on outings two or three times a week. Although the nursing home organises group outings, NU chooses not to participate because she prefers to go out by herself. Ms Liddle also recommended that staff be trained in strategies for dealing with NU’s behaviour but that recommendation did not go ahead at that time.

7 From late 2003 until October 2004, NU received one to one services allowing her to access the community for shopping and other outings. NU enjoyed these outings, but refused to continue with them when she realised that she was paying for the services herself. The idea of voluntary carers has been explored but Ms Southern from Access Brain Injury concluded that it was unlikely that an untrained person would be able to take NU on outings outside the nursing home.

8 On 9 November 2004, shortly after NU began to refuse the services of the attendant carer, a meeting was held at the nursing home with James Brooks from the Office of the Protective Commissioner, Beverly Southern and the Director of Nursing. That meeting was held partly because of the nursing home’s concerns about the demands NU was placing on staff and partly to discuss with NU the prospect of selling her house. Ms Liddle provided a further report dated 23 November 2003 and the Protective Commissioner decided to go ahead with a care regime comprising initial assessments from Access Brain Injury and Ms Liddle, case management for 1.5 hours per month for 3 months and an attendant care for 12 hours per week. The total cost of these services in the first year is $21,328.00.

9 Ms Southern said that the strategies suggested by Ms Liddle to manage NU’s behaviour were going well. Staff were being educated about how to cope with NU’s behaviour. There was consistent evidence, including from NU’s general practitioner, Dr Hor, that NU benefited from going on outings with an attendant carer. NU gave evidence that she does not want to go on outings and that she would rather stay at the nursing home. She denies that she creates any problems for the staff or that they need some respite from her. There was consistent evidence from several witnesses that NU is extremely anxious and upset about the prospect of her house being sold. According to the Director of Nursing, she becomes teary and refuses to take her medication or get out of bed.

Financial situation

10 NU is currently receiving rent of $210 per week on her home. When council and water rates, insurance, agency fees and repairs are deducted, that leaves a net rental income of approximately $5760 per year. NU also receives a pension of $332.30 per fortnight and a small amount of interest. Her total annual income is approximately $14,600. NU’s total expenditure including nursing home fees, personal and medical expenses and fees charged by the Protective Commissioner, is approximately $13,365. However in the last 12 months her expenditure has exceeded her income by about $1400.

11 If the cost of implementing the services proposed by the Protective Commissioner were included, then her expenditure would be approximately $34,700 in the first year and about $1000 less in following years because there are some one-off costs. NU also has a debt to the Legal Aid Commission of $3,658. The Protective Commissioner anticipates that the net proceeds from the sale of the house would be in the vicinity of $293,000. On current interest rates of 5.3% she would receive a gross income per year of about $14,416. On the sale of the house, NU’s pension would be reduced to about $3,235 per year. Unless NU’s house is sold, she cannot afford the extra services. Even without the services that the Protective Commissioner is recommending, NU’s expenditure is about the same or slightly more than her income. That is not a financial position that can be maintained in the long term.

Views of NU and family members

12 NU is implacably opposed to her house being sold because she anticipates that she will be able to return to live there in about 12 months time. She says that she does not want carers. The stress that NU is experiencing in anticipation of her house being sold is seriously affecting her mood. NU’s former husband told the Protective Commissioner that he should do whatever he thought was best for NU. NU’s daughter said that she supported the sale of her mother’s house because NU needs the services that have been proposed. The Protective Commissioner was not able to contact NU’s son to obtain his views.

Findings and conclusion

13 Ms Hassett, representing NU, maintains that the present Management Plan is working well and NU does not require regular attendant carers. According to Ms Hassett, a crisis care management plan should be developed and come into effect only when her behaviour warrants it. Ms Hassett also emphasised that the Tribunal should take into account the effect that the intention to sell her property is having on NU. The first difficulty with Ms Hassett’s submission is that she did not indicate exactly how much the current care plan together with crisis management, would cost. On the basis of the figures for the last financial year, NU’s expenditure is already in excess of her income. With no services whatsoever, NU only has approximately $1235 per year to spend. It is unlikely that that amount would cover the cost of the current care plan together with crisis management.

14 The second, and more fundamental, difficulty with Ms Hassett’s proposal is that all the evidence from professionals who have assessed NU supports a finding that she requires more intensive support. While NU says that she is happy not to receive those services, she appears to be saying that in a bid to prevent her house being sold. The provision of additional services also ensures that the nursing home can continue to meet NU’s needs. Those needs are different and more intense than those of the older residence in the nursing home. Although I am loathe to make an order that goes against NU’s express wishes, I am satisfied that the sale of her house is the only way to fund the services that NU needs.

Orders

The decision of the Protective Commissioner to sell NU’s property is affirmed.