Oi v Public Guardian

[2005] NSWADT 134

CITATION:	OI v Public Guardian [2005] NSWADT 134
DIVISION:	General Division
PARTIES:	APPLICANT OI RESPONDENT Public Guardian
FILE NUMBER:	053006
HEARING DATES:	26/04/2005
SUBMISSIONS CLOSED:	04/26/2005
DATE OF DECISION:	04/26/2005
BEFORE:	O'Connor K - DCJ (President)
APPLICATION:	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:	1. Decision under review affirmed

1 The Tribunal delivered its decision orally at the conclusion of the hearing. The unsuccessful applicant for review requested reasons in writing, as permitted by the Administrative Decisions Tribunal Act 1997, s 89. The following reasons are an edited and revised version of the oral reasons.

2 On 7 January 2005 the applicant lodged an application for review of a decision of the Public Guardian which took effect on 4 January 2005. It related to the future accommodation of his mother, M, then 69 years of age. She has been under treatment for chronic relapsing schizophrenic illness since July 1997; and recently as a result of viral encephalitis has displayed evidence of severe intellectual impairment. The Public Guardian was appointed to manage his mother’s needs first by an interim order of the Guardianship Tribunal on 24 December 2004, which was re-made as a final order on 30 December 2004.

3 The Public Guardian decision was to relocate the applicant’s mother from her private residence (which she shared with the applicant) at Newport Beach to the Montana Nursing Home in Mosman.

4 The Tribunal held a directions hearing on 11 January at which detailed directions were made for the filing of material in support of the decision from the Public Guardian and the applicant was directed to file material in reply. The substantive hearing of the matter was listed for 27 January. The Public Guardian tendered a bundle of documents on 11 January which explained the basis for its decision; and further documents were filed on 2 and 8 February 2005 comprising:

· a report from a psychiatrist;

· two letters from the Director of Nursing, Montana Nursing Home;

· report from a speech pathologist;

· report from attending doctor; and

· statement from daughter, B.

5 The hearing listed for 27 January 2005 was rescheduled at the applicant’s request to 14 February; and again was vacated at his request on 14 February. The matter was listed for dismissal today, 26 April 2005. The applicant has attended the hearing; and has objected to his application being dismissed.

6 The Tribunal has taken account of the contents of the applicant’s letter of 25 April 2005; but at this point the applicant still has not placed before the Tribunal formally any material that would be likely to influence the Tribunal to reconsider the decision made by the Public Guardian.

7 The applicant’s mother had been at Montana only for a few days when the Tribunal first started looking at this matter. Now she has been there for the best part of four months. The passage of time must itself affect the extent to which the Tribunal could interfere with the decision. That view is, to some extent, reflected in the comments made by the applicant at the present hearing in that, in the Tribunal’s opinion, the applicant acknowledges that his mother needs to have some form of external care at this stage of her life and really the debate is about whether Montana is the place for that care or some other facility. It has been acknowledged throughout these proceedings that it would be desirable if the facility was close to the area where she had lived for many years; and that is up around Newport. Nevertheless, the situation is one where she is at Montana and she has been there for some time.

8 Since this application for review was first filed with the Tribunal the applicant has lodged an external appeal to the Appeal Panel of the Tribunal against the order of the Guardianship Tribunal that gave authority to the Public Guardian. Obviously if that appeal is successful this application for review becomes irrelevant.

9 On the other hand, if the appeal is not successful, as the applicant says, the application for review that is before the Tribunal may still have some relevance but it is difficult to see what that could be at this stage.

10 The applicant has not given substance in any formal way to his application. The Act provides the Tribunal with the power to dismiss an application on the grounds that it lacks substance: Administrative Decisions Tribunal Act 1997, s 73(5)(h). It provides: ‘The Tribunal … may dismiss at any stage any proceedings before it if it considers the proceedings to be … lacking in substance.’

11 It may be that the application is not without some foundation. The difficulty, however, is that the applicant has never, now over more than three months, given anything formally to the Tribunal to spell out what it is about the specifics of the Public Guardian’s decision to which he objects.

12 The matters that the applicant has raised today do not go to that point.

13 The applicant is obviously upset by what he sees as some influence that his sister, B, has brought to bear on the decision of the Public Guardian. The Public Guardian is obliged to take account of a wide variety of considerations in making these decisions, one of which is obviously the views of members of the family.

14 Any objection as to how the process of consulting the family was conducted up to the time of the Guardianship Tribunal’s order can be taken up as part of the applicant’s external appeal. There is certainly nothing in the material filed by the Public Guardian to suggest that the Public Guardian has in any way ignored views expressed by the applicant. This is not the same thing as saying that the Public Guardian should have accepted the applicant’s views. The Public Guardian must have regard to a variety of views.

15 The applicant has not responded to the directions that the Tribunal made. The Tribunal repeats that the applicant has not given any substance in a formal way to his objections to the Public Guardian’s decision.

16 It is the Tribunal’s view that the present application for review of the accommodation decision should be dismissed.

17 There has been a failure on the applicant’s part to provide any material by way of reply to the material put on by the Public Guardian. It is on that basis that the Tribunal forms the view that the application ‘lacks substance’. It may be that at some later stage material that has substance is put before the Tribunal, in which case the Tribunal might well take a different view.

18 If the applicant is unsuccessful in his external appeal, the Public Guardian will remain in ultimate control of his mother’s situation. Any decision the Public Guardian takes in the future is still capable of being the subject of an application for review. One of those decisions might be to extend the period of care or to place her in some form of more long term care and accommodation.

19 Today’s decision of the Tribunal brings to an end the discussion of whether the decision made on or around 4 January was the correct and preferable one. It does not in any way impede the applicant’s ability to make future applications for review of further decisions made by the Public Guardian. It is evident that a further decision will have to be made; and that is crystal clear in the communications that the applicant has received from the Public Guardian.

20 In the Tribunal’s view, it is in the interests of the progress of the overall matter that this particular dispute be brought to an end.