Om v Public Guardian

[2010] NSWADT 137

CITATION:	OM v Public Guardian [2010] NSWADT 137
DIVISION:	General Division
PARTIES:	Applicant: OM Respondent: Public Guardian
FILE NUMBER:	093173
HEARING DATES:	16 October 2009
SUBMISSIONS CLOSED:	30 November 2009
DATE OF DECISION:	8 June 2010
BEFORE:	Leal S - Judicial Member
CATCHWORDS:	Public Guardian – Accommodation function – dementia
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Guardianship Act 1987 Guardianship Regulation 2005
REPRESENTATION:	Applicant Representative: Ms E Clifton Respondent Representative: Ms C Phang
ORDERS:	The decision of the Public Guardian that QI be accommodated at Woy Woy Community Aged Care in Woy Woy and not at the Salvin Blue Care Facility in Queensland is set aside. In substitution for that decision, a decision is made that QI continue to reside at Waratah Nursing Home, Acacia Centre, Marrickville.

Introduction

1 QI is an 80 year old woman currently residing in Waratah Nursing Home in Marrickville.

2 In a Guardianship Order dated 23 June 2008, the Public Guardian was given the authority to make decisions on behalf of QI in relation to the functions of access, accommodation, health care and medical and dental consents. The Guardianship Order was confirmed on 17 July 2009.

3 On 23 June 2008, the Guardianship Tribunal appointed Mrs Valerie Campbell, cousin of QI, as manager of QI’s estate. This order was reviewed at the request of Ms Robyn Lewis and Mrs Betsy Colvin, who sought the replacement of Mrs Campbell with the then Protective Commissioner (now the NSW Trustee). On 23 January 2009, the Guardianship Tribunal confirmed its earlier order to appoint Mrs Campbell as financial manager for QI.

4 On 2 February 2009, the Public Guardian made a decision for QI to reside at Woy Woy Community Aged Care and for her name to be placed on the waiting list at this facility. On 22 May 2009, following an internal review conducted at the request of QI’s cousin, OM, the decision of the Public Guardian was affirmed. It was noted in the internal review that ‘in making this decision, the Public Guardian placed most weight on the view of the person under guardianship, [QI].’

5 The decision was stayed by consent on 7 July 2009 and by consent remitted back to the Public Guardian to consider a proposal for relocation to accommodation at Salvin Blue Care Facility in Queensland.

6 A subsequent decision was made by the Public Guardian on 7 August 2009 to refuse the request to move QI to Salvin Blue Care Facility in Queensland. In light of the stay given by this Tribunal on 7 July 2009, QI has continued to reside at Waratah Nursing Home (formerly called Mayfair Nursing Home) since her admission there in December 2007.

7 The preferred position for the applicant, OM, is that QI remain at Waratah Nursing Home.

8 In its submissions to this Tribunal, the Public Guardian stated that it now had no objection to QI remaining in Sydney.

9 QI’s friends, Ms Colvin and Ms Lewis stated that they would prefer QI to be relocated to Woy Woy to be closer to them and to QI’s other friends there, but if QI were to remain at Waratah Nursing Home, they would continue to visit her on a regular basis.

10 The separate representative appointed for QI, Ms Chaperlin, supports OM’s application that it would be in QI’s best interests to remain at Waratah Nursing Home.

Jurisdiction

11 Section 80A of the Guardianship Act 1987 (‘Guardianship Act’) provides that an application may be made to this Tribunal for a review of a decision of the Public Guardian that is made in connection with the exercise of the Public Guardian’s functions under the Guardianship Act as a guardian, and is of a class of decision prescribed by the Regulations.

12 Regulation 17 of the Guardianship Regulations 2005 provides that all decisions of the Public Guardian made in connection with the exercise of its functions are prescribed for the purposes of section 80A of the Guardianship Act. Hence the decisions made by the Public Guardian in relation to the accommodation of QI are decisions in respect of which an application may be made for review to the Tribunal.

13 Applicants who may apply to the Tribunal under s80A of the Guardianship Act include the protected person, the spouse of that person, a carer, and ‘any other person whose interests are, in the opinion of the ADT, adversely affected by the decision’ (s80A(2)(d)). I accept that OM has had a long-standing close relationship with her cousin, QI, who she visits regularly at Waratah Nursing Home. The decision to relocate QI to a facility in Woy Woy would make it much more difficult for OM to visit QI on a regular basis. On that basis, I am satisfied that OM’s interests are adversely affected by the Public Guardian’s decision and that she is therefore able to apply to this Tribunal for review of the Public Guardian’s decision.

14 In conducting the review, it is the role of this Tribunal to conduct a merits review to determine whether the Public Guardian’s decision that QI be accommodated at Woy Woy Community Aged Care in Woy Woy and not at the Salvin Blue Care Facility in Queensland is the correct and preferable one having regard to the material before the Tribunal including any relevant factual material and any applicable written or unwritten law. (section 63 of the Administrative Decisions Tribunal Act 1997). In making its decision, the Tribunal is to have regard to the principles set out in section 4 of the Guardianship Act.

Evidence

15 On 1 September 2009, Ms Chaperlin, a solicitor from The Aged-Care Rights Service, was appointed as a separate representative for QI. When she visited QI on 24 September 2009, QI stated that she was happy living in her current facility, where she knew her way around and where she knew the people.

16 When the possibility of a move to Woy Woy was discussed to enable QI to be closer to her friend, Betsy Calvin, QI told Ms Chaperlin that a move would be all right ‘as long as Betsy Calvin did not mind and it did not put her out too much.’

17 Ms Chaperlin told the Tribunal that given ‘OM had changed her mind in relation to the views expressed to the Public Guardian in October 2008’, she supports OM’s application that QI remain at her Waratah Nursing Home, ‘as it appears she is settled where she is.’

18 In her affidavit dated 25 September 2009, Ms Valerie Campbell confirmed that she was appointed financial manager to QI by the Guardianship Tribunal on 23 June 2008. Ms Campbell states that she is not in favour of QI being relocated to Woy Woy on the basis that she would find it difficult to visit her there. She reiterated her position in oral evidence before the Tribunal and agreed that QI seemed to be settled living where she is.

19 OM would also find it difficult to visit QI in Woy Woy, given the extra travel time required to get there. If she were to remain in Sydney, OM would be able to visit her every couple of months. Ms Hogan, a cousin of QI, lives in Sydney and visits QI on a fortnightly basis. Given her age, she would not be able to drive to Woy Woy if QI were to be relocated. She agreed that QI seems settled where she is currently living.

20 On examination, the psychiatrist Dr Kossoff found QI to have significant cognitive deficits:

[QI] scored 19/30 on her Mini Mental State Examination but scored extremely poorly on recall, being unable to recall any items after 3 minutes and she had poor orientation, scoring 3/10. Her short-term memory was so poor that she could not recall who brought her to the interview.

21 Dr Kossoff formed the view that QI suffers from moderately severe Alzheimer’s Disease and that she has a dementing illness that particularly impacts on her short-term memory, her judgement and planning skills.

22 In relation to QI’s choice of accommodation, Dr Kossoff made the following observations:

Throughout the interview she commented that she was happy where she was living and that she was treated well by staff and by Dr Mah. Her recurrent theme throughout the interview was that she had been in Sydney all her life and that is where she would prefer to be. She said that she wouldn’t like to live in Woy Woy as it is too far away from Sydney, and in respect of Queensland, she said she ‘doesn’t know it well’... At the end of the interview, I again asked [QI] where she would like to live, and she said she is ‘a Sydney person.’ She said she ‘is happy where she lives, she lives in a safe haven and can come and go as she wishes.’ She said she doesn’t want to live close to cousins in Queensland and ‘doesn’t really’ want to live in Woy Woy.

23 It is Dr Kossoff’s view that QI does not have the capacity to make independent decisions and that the only clear and consistent opinion she could obtain from her when alone was that she was a Sydney girl and did not want to leave Sydney. According to Dr Kossoff:

[QI’s] dementia has not resulted in any behavioural disturbance and this is quite unusual as 80-90% of patients with Alzheimer’s Disease, at some point in their illness, will have behaviour disturbance. I believe this is because her residential environment is supporting her, minimising the risk of emergence of behavioural or psychological problems of dementia such as depression, paranoia, mood changes or anxiety.

24 Dr Kossoff made the following clinical recommendations:

[I]t is my opinion that [QI] should remain in her current Residential Care Facility. She has settled in there without developing behaviour problems and the Director of Nursing has indicated to me that she has a good relationship with staff and she presented as well-cared for and well-nourished. There is numerous literature published on the adverse effects of a change in environment on someone with dementia..[QI] has a sense of safety and familiarity in her current residence without behaviour problems. I would strongly recommend that on clinical grounds she continue to reside at the Waratah Nursing Home, Acacia Centre, both to prevent a decline in her dementia and possible accompanying behaviours, and also because she consistently expressed to me throughout the interview that she was ‘a Sydney girl’ and wished to remain in Sydney.

25 In oral evidence before the Tribunal, Dr Kossoff confirmed these recommendations and stated that the best practice in dementia care is for a patient to stay put to avoid becoming confused and disorientated. She was impressed that QI’s dementia was being managed by her carers without resort to anti-depressants or anti-psychotic medication. In relation to proposed renovations to the facility and the possibility that QI would be moved to a different building in the facility while the renovations took place, Dr Kossoff expressed the view that the impact of any relocation within the facility would be minimised given that QI is already familiar with the complex and would retain the same carers in the event of a temporary relocation to another building within the complex.

26 When questioned about how to deal with future needs that may rise for Ms W, Dr Kossoff said that:

My recommendation is that any re-evaluation is done in a case conference situation to enable the views of all stakeholders to be considered.

27 In oral evidence before this Tribunal, Ms Banag, from QI’s current aged care facility, expressed the view that QI should remain at the facility because she is well-settled there. In relation to proposed renovations to the facility, Ms Banag confirmed that whilst renovations have been planned, they are on hold due to financial considerations and are unlike to commence within the next three years. If the renovations were to proceed, all residents, including QI, would be relocated to another building within the facility.

28 Ms Colvin gave evidence to the Tribunal that she has known QI since 1972 and considers her to be part of her family. She would like QI to be relocated to Woy Woy so that Ms Colvin could care for her, ‘like I promised I would do.’ At the moment, she visits QI on a weekly basis. If she were to be relocated to Woy Woy, Ms Colvin would be able to take QI out every day. When questioned about relocation possibilities for QI, Ms Colvin agreed that she would not like QI to be adversely affected. She told the Tribunal that QI has told her that she is frightened of some of the residents at the centre and that she doesn’t like living there. She confirmed that she is allocated a $20 weekly allowance to spend on lunch for QI in addition to a $50 monthly allowance with which she buys things needed by QI and submits the receipts as evidence of her purchases, which have included a watch for QI.

29 When asked whether she would be happy for QI to remain in Sydney, Ms Colvin replied:

No I want her up here. I wouldn’t be agitating but that is my likes. She keeps telling me she is unhappy there and why won’t I help her. I would be disappointed [if she couldn’t relocate to Woy Woy].

30 She told the Tribunal that she would continue to visit QI if she were to remain living in Sydney.

31 Ms Lewis gave evidence of her longstanding friendship with QI and told the Tribunal that QI has a strong support network in Woy Woy and if she were relocated to Woy Woy, she would be visited daily by her friends. Ms Lewis herself would hope to visit QI three times a week. It is Ms Lewis’ view that QI requires more stimulation and that the more she is stimulated, the greater her brain capacity will be. It is for this reason that QI believes that QI would be benefited from relocation to Woy Woy. She doesn’t believe that moving to Woy Woy would be in any way detrimental to QI.

32 Ms Lewis was also concerned that QI has been given menial tasks at Waratah Nursing Home which she believes is inappropriate. She agreed that QI has put on weight since moving to the facility and agreed that she seems settled provided she is with particular members of staff at the home. She is concerned, however, that QI is frightened of one of the residents there. She told the Tribunal:

From the bottom of my heart, I believe that [QI] will be far better cared for in Woy Woy with so many people who want to spend time with her, who want to do things with her. I know they will do things with her.

33 Patricia Davidson, Assistant Director of the Public Guardian, gave evidence of her meeting with QI to obtain her views on whether she wished to move to Brisbane or Woy Woy. Ms W said that if she were younger, she’d have considered the move to Brisbane but she didn’t want to do it now. According to Ms Davidson, QI clearly told her that Woy Woy was where she wished to go. Ms Davidson did agree, however, that QI appeared to be happy and content in her current residential centre. Ms Davidson accepts that QI has now changed her view and wants to stay in Sydney. Ms Davidson told the Tribunal, ‘if that is her view now, that is of prime importance to the Public Guardian.’

34 The primary order sought by the applicant is as follows:

That QI is to remain [at] her current aged care residential facility known as the Waratah Nursing Home, Acacia Centre at Marrickville, Sydney and that no proposals relating to QI’s accommodation are to be considered by the Public Guardian except following a case conference with all stakeholders, including but not limited to, medical staff, the Director of Nursing, Waratah Nursing Home, Acacia Centre, [QI’s] family members, friends and nursing staff.

If following such a case conference, no consensus is reached, then the decision as to where to accommodate QI is to be referred to a medical specialist for a final decision.

FINDINGS AND REASONING

35 For the reasons that follow, I am setting aside the decisions of the Public Guardian dated 13 March 2009, 22 March 2009 and 7 August 2009, the combined effect of which is a decision that QI be accommodated in Woy Woy Community Aged Care at Woy Woy and not Salvin Blue Care Facility in Queensland.

36 On the basis of the decisions made by the Guardianship Tribunal on 23 June 2008 and 17 July 2009 and the subsequent report of Dr Kossoff dated 2 October 2009, I am satisfied that QI suffers from the dementing illness, Alzheimer’s Disease, which impacts upon her memory and her judgement skills. I also accept Dr Kossoff’s evidence that QI has no behaviour disturbance, which is unusual for a person with dementia.

37 I also accept the evidence that QI has been residing at Waratah Nursing Home, Marrickville since December 2007. The evidence from OM, from QI’s financial manager, Ms Campbell and from Ms Banag, of Waratah Nursing Home, is that QI is settled and happy at Waratah Nursing Home. Dr Kossoff’s clinical recommendation is that QI remain at Waratah Nursing Home, given that she has settled in there without developing behaviour problems, presented as well-cared for and well-nourished and appeared to have a good relationship with staff. Ms Chaperlin, appointed as separate representative for QI, agreed that she seemed happy living at Waratah Nursing Home. Ms Davidson from the Public Guardian, also agreed that QI appeared to be happy and content in her current residential centre.

38 The only criticism of Waratah Nursing home was from Ms Colvin, who expressed the view that QI did not like living there and was frightened of some of the residents there, and from Ms Lewis who was also concerned that QI was frightened of one of the residents there and felt that QI needed greater stimulation than she was getting. Ms Lewis did agree, however, that QI had put on weight at the home and seemed settled provided she is with particular members of staff.

39 In light of this evidence, I am satisfied that QI is settled and generally happy at Waratah Nursing Home. I accept that she has developed good relationships with the home’s staff and that, unusually for a person suffering from Alzheimer’s Disease, she has no behaviour disturbance. Although I accept that QI may have expressed the view that she is frightened or one of the other residents, there is no evidence before me to indicate that this has resulted in QI being generally unsettled or unhappy at Waratah Nursing Home.

40 The evidence before me shows that QI is a much valued relative and friend and I was impressed by the care shown for her.

41 I accept that Ms Lewis and Ms Colvin travel from Woy Woy to visit her on a regular basis and will continue to do so while QI continues to reside at Waratah Nursing Home. On the evidence, I am satisfied that, assuming QI is returned to the Nursing Home within stipulated times, QI benefits from her visits with Ms Lewis and Ms Colvin and that the allowance provided to Ms Colvin enables these visits to take place regularly and for small comfort items to be purchased for QI. I also accept that QI receives fortnightly visits from her cousin, Ms Hogan, and that QI is also visited by her friend and financial manager, Valerie Campbell.

42 Should QI be relocated to Woy Woy, Ms Colvin gave evidence that she would visit her daily and Ms Lewis gave evidence that she would visit her three times a week. Ms Campbell and Ms Hogan gave evidence that given the distance, they would not be able to visit QI as frequently.

43 In light of all the evidence, and in particularly in light of the medical evidence of Dr Kossoff, I am of the view that it is in the best interests of QI to continue residing at Waratah Nursing Home, where she is happy and settled. I am concerned that a move to another care facility may trigger the behaviour disturbances that are so common amongst persons with Alzheimer’s Disease and which QI has so far managed to avoid. By remaining at Waratah Nursing Home, QI’s family relationships and friendships will be able to be preserved and I am satisfied that this is in the best interests of QI.

44 I note the concern that renovations are proposed for Waratah Nursing Home which would require QI and other residents to be transferred to another building within the complex. Although I accept that, in the event of the renovations proceedings, this would cause some disturbance to QI, I am satisfied from the evidence that the disruption would be minimised given that QI would retain the same carers and would remain in a complex that is familiar to her.

45 The applicant has sought orders that QI remain at Waratah Nursing Home. In addition, the applicant has sought an order that no further decisions in relation to QI’s accommodation should be made by the Public Guardian except following a case conference involving all stakeholders. If no consensus can be reached at the case conference, the applicant submits that the question be referred to a medical specialist for a final decision.

46 For the reasons set out above, I am satisfied that it is the correct and preferable decision that QI remain at Waratah Nursing Home and that, accordingly, the decisions of the Public Guardian dated 13 March 2009, 22 May 2009 and 7 August 2009 that QI be accommodated in Woy Woy Community Aged Care at Woy Woy and not Salvin Blue Care Facility in Queensland should be set aside. I have made this decision having considered all the evidence available to me and in light of the principles set out in s4 of the Guardianship Act.

47 It is not appropriate, however, for this Tribunal to make the balance of the orders sought by the applicant in her submissions under the heading ‘Order 1’. The role of this Tribunal is limited to conducting a merits review of the decisions of the Public Guardian made on 13 March 2009, 22 May 2009 and 7 August 2009 in accordance with s63(3)(c) of the Administrative Decisions Act 1997.

48 Following the decision of the Guardianship Tribunal on 17 July 2009, the Public Guardian retains the accommodation function in relation to QI for a period of two years from 17 July 2009 until or unless revoked by the Guardianship Tribunal. It is therefore the role of the Public Guardian to make any future decisions in relation to QI’s accommodation needs. A review of any such decisions made could then be sought in accordance with the provisions of the Guardianship Act.

Orders

49 The decision of the Public Guardian that QI be accommodated at Woy Woy Community Aged Care in Woy Woy and not at the Salvin Blue Care Facility in Queensland is set aside. In substitution for that decision, a decision is made that QI continue to reside at Waratah Nursing Home, Acacia Centre, Marrickville.