QKJ

[2021] NSWCATGD 36

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

QKJ [2021] NSWCATGD 36

Hearing dates:

23 July 2021

Date of orders:

23 July 2021

Decision date:

23 July 2021

Jurisdiction:

Guardianship Division

Before:

S Pinto, Senior Member (Legal)
Dr C M West, Senior Member (Professional)
P Davidson, General Member (Community)

Decision:

QKJ and KYJ are allowed to be legally represented by Mr Tim Cain, CKMLAW.

On the application by Tim Cain, today’s hearing is adjourned to a day to be confirmed by the registry to enable QKJ and KYJ to obtain the documents provided to the Tribunal and instruct Mr Cain.

Catchwords:

REVIEW OF ENDURING GUARDIANSHIP – application to review an enduring guardianship appointment – principal is of advanced aged – principal diagnosed with dementia – multiple hospital admissions – discharged from hospital against medical advice – high falls risk – recommendation that the principal be admitted to an aged care facility – enduring guardian wishes for principal to remain living at home despite high care needs and serious risk of physical injury.

INTERLOCUTORY – leave granted for legal representation – adjournment – procedural fairness – legal representative recently instructed – opportunity to consider submissions – hearing adjourned.

Legislation Cited:

Civil and Administrative Tribunal Act 2013 (NSW), ss 36(1), 38(5)-(6), 45(1)(a)-(b), 45(2), 51

Civil and Administrative Tribunal Rules 2014 (NSW), r 31(2)

Guardianship Act 1987 (NSW), s 4

Cases Cited:

None cited.

Texts Cited:

None cited.

Category:

Principal judgment

Parties:

001: Review of an Enduring Guardianship Appointment

QKJ (the person)
BZU (applicant)
CAD (enduring guardian)
TKC (enduring guardian)
KYJ (enduring guardian)
LBC (enduring guardian)
NSW Trustee and Guardian
Public Guardian

Representation:

T Cain, legal representative for QKJ and KYJ

File Number(s):

NCAT 2021/00190314

Publication restriction:

Decisions of the Guardianship Division of the Civil and Administrative Tribunal have been anonymised to remove any information that may identify any person involved in the Tribunal’s proceedings: Civil and Administrative Tribunal Act 2013 (NSW), s 65.

REASONS FOR DECISION

What the Tribunal decided

1. The Tribunal granted the application for QKJ and KYJ to be legally represented.

2. The Tribunal adjourned the application for review of the enduring guardianship appointment to a date to be fixed by the registry.

Background

3. QKJ is 84 years old. He resides with his wife and carer, KYJ, in regional NSW. He is retired from the NSW Police service. He recently discharged from a public hospital against medical advice. QKJ has been diagnosed with dementia. He receives a Level 2 home care package, and his wife receives a Level 3 home care package.

4. On 24 July 2014, QKJ executed an enduring guardianship, appointing his spouse, KYJ (referred to in the document as KYJ), as his enduring guardian. He appointed his stepchildren, LBC, CAD and TKC as his substitute enduring guardians.

5. On 2 July 2021, the Tribunal received an application from BZU, social worker, of the public hospital, to review the enduring guardianship appointment made by QKJ. BZU stated that he does not believe KYJ is making decisions in QKJ’s best interests. He is seeking to have the appointment revoked and the Public Guardian appointed as QKJ’s guardian.

6. KYJ and QKJ strongly oppose the application and feel they have been inappropriately treated while QKJ was in hospital.

7. On 22 July 2021, Mr Tim Cain, legal practitioner, notified the Tribunal that he had been instructed by QKJ and KYJ. He also indicated that he was seeking to have the hearing scheduled for 23 July 2021 adjourned.

The hearing

8. QKJ and KYJ participated in the telephone by hearing by telephone. BZU and Mr Cain participated from separate locations.

9. A list of the parties and hearing participants is at the end of these reasons for decision. [Appendix removed for publication.]

Documents and evidence provided to the Tribunal

• Copy of QKJ’s Enduring Guardian, appointing his wife as his guardian and three stepchildren as substitute guardians

• E-mail from Ms Z, on behalf of QKJ and KYJ, 8 July 2021

• Statement by BZU, Senior Social Worker, at the public hospital, 24 June 2021

• Occupational therapy report, Ms Y, Occupational Therapist, at the public hospital, 17 June 2021

• Copy of QKJ’s hospital admission history between 2018 and April 2021, showing 20 hospital admissions, often for several days, for numerous reasons, including falls, back pain, chest pain, respiratory problems, oedema

• Medical report, Dr X, Senior Consultant Physician, at the public hospital, 11 June 2021

• Statement by Ms W, Nursing Unit Manager, at the public hospital, (undated)

• Neuropsychological assessment, Ms V, Neuropsychologist, of a community service provider, 19 May 2021

• Medical report, Dr U, QKJ’s general practitioner, 22 July 2021

• Letter from a support provider in regional NSW, 23 July 2021, with attached care plans for QKJ and KYJ.

Details of the enduring guardianship appointment

10. The appointment of Enduring Guardianship instrument was provided to the Tribunal. The document indicates that KYJ was appointed as QKJ’s enduring guardian to make decisions as to where he lives, health care he receives, personal services and to consent to medical and dental treatment. LBC, CAD and TKC were appointed as joint alternative guardians (substitute guardians). The appointment is signed by QKJ on 24 July 2014 and the enduring guardians on 24 July 2014 and 4 November 2014.

Views of the treating team

11. The Tribunal has been provided with documents by the applicant and allied and medical professionals supporting the view that the enduring guardianship appointment should be revoked.

12. In his statement to the Tribunal, BZU stated that QKJ has an extensive medical history. He resides in his own home with his second wife, KYJ, who is his main carer. He has three children from whom he is estranged and he is a stepfather to KYJ’s three children. KYJ reported that their contact is “limited at best.”

13. Both QKJ and KYJ receive an aged care package; QKJ at a level 2 and KYJ at level 3. This is managed by the support provider which provides personal care, domestic cleaning and shopping assistance. BZU stated that it is his opinion that QKJ’s care requirements are at a higher level and would be better suited to a Level 4 home care package. This is not available at this time and, unfortunately, the waiting period is extensive. Both QKJ and KYJ are reliant on four-wheeled walkers and walking frames to ambulate.

14. BZU also stated that QKJ has had multiple hospital admissions as a result of mechanical falls, exacerbation of his numerous medical conditions and multiple “social admissions” when his wife is hospitalised. He has also had several residential care placements, but has been removed by his wife and returned home due to her belief that he has not been provided adequate care. KYJ has also removed QKJ from hospital against medical advice on several occasions.

15. BZU stated that QKJ’s cognitive level was formally assessed on 19 May 2021 and he demonstrated a significant decline, indicative of a dementing process. KYJ makes all the accommodation and care decisions on his behalf. There have been several formal and informal meetings with the family and KYJ has consistently maintained that there are no other options for discharge other than to the family home, despite the risks being known.

16. BZU concluded that he is of the view that if QKJ were to return home, given his current level of mobility he is at a very high risk of repeated falls with the “very real possibility of a catastrophic outcome which would be most life limiting.” He stated that all other reasonable options have been explored, and “it is my professional view that the least restrictive option for QKJ would be the review of the current enduring guardianship” and the appointment of a guardian to “effect more appropriate and safe accommodation decisions.” He further stated that KYJ is “directly placing him in danger of further harm.”

17. In her report, Ms Y stated that QKJ has an extensive medical history, including Alzheimer’s dementia; prostate cancer; hypertension; bilateral knee replacement; haematoma; hemochromatosis; right tibial plateau fracture; T11 super end plate fracture; and crush fracture. Ms Y also referred to QKJ’s admission to aged care facilities, but having been taken out and returned home against recommendations because his wife was unhappy with the care provided at the facility.

18. Ms Y also stated that QKJ’s mental state and cognition is of concern and he has had multiple cognitive assessments. In April 2021, a MoCA assessment was completed, with QKJ scoring 12 out of 30, indicating moderate cognitive impairment. He then had a further MoCA one week later where he scored 15 out of 30, again indicating moderate cognitive impairment. She stated that he requires prompting to execute and complete functional tasks of basic self-care.

19. In relation to his activities of daily living, Ms Y stated that QKJ’s mobility is limited and he has reduced insight into this and “continues to be a high falls risk.” She stated that due to his mobility, it has been recommended on “multiple occasions” that he would be more suitable for admission to an aged care facility. The high level of assistance he requires cannot be provided at home as he currently requires full assistance with monitoring, prompting for personal ADLs and support for domestic ADLs. “This is not able to be provided reliably by his wife which is evident from his multiple admissions.”

20. Ms Y concluded that QKJ is a “a man at risk and in need of consideration for residential care or high level in home support services.” She recommended intervention by the Tribunal due to KYJ’s refusal to accept medical advice.

21. Dr X indicated that he had assessed QKJ for several weeks during his previous and most recent admissions. He stated that QKJ’s most recent admission followed a fall at home a few hours after his previous admission. He referred to QKJ’s cognitive impairment; unsteadiness on his feet; and unsuitability for rehabilitation. He stated that he is concerned that if discharged from home, QKJ would fall again and either fracture his hip or sustain a head injury which may result in severe disability, morbidity or even death. He stated that he is “unwilling to discharge him home because of my duty of care”. Dr X also referred to KYJ’s frailty and stated that if QKJ falls, she will be unable to lift him as she uses a walking frame. Dr X stated that although they both have children, “they have declined to become involved”.

22. Dr X concluded that “discharging QKJ to the home environment would represent unsatisfactory care with a serious risk of physical injury due to his falls risk” and he should be cared for in a nursing home which will provide him with greater supervision and provision of aids to reduce the risk he falls and injures himself. He stated that he had discussions with KYJ but “unfortunately there was no argument that would convince her that returning him home posed a significant risk to his health”. He stated that he supports the application to the Tribunal for consideration of KYJ’s suitability as enduring guardian for her husband.

23. Ms W, the nursing unit manager, stated that QKJ had been in hospital for the last 66 days. She confirmed that QKJ requires considerable support with mobility, meals and toileting and has episodes of acute confusion. Whilst he has been in hospital, his wife has been unable to assist him due to her deteriorating mobility, and she has been observed climbing on furniture in his room.

24. The neuropsychologist assessed QKJ on 19 May 2021. She stated that QKJ presented as an “insightful gentleman” who was aware of his cognitive and physical difficulties and concerned by them. He gave a clear account of progressive cognitive change over the last 18 months. She stated that according to the staff report, he was having a “comparatively good day” when she assessed him, but he nevertheless showed significant cognitive impairment affecting his speed of processing, attention/concentration, ability to understand abstract ideas and some types of complex reasoning. The neuropsychologist also stated that QKJ’s cognitive fluctuation was “pronounced” and within the space of a few minutes he went from lucid to highly confused. She stated that QKJ’s significant cognitive decline is consistent with a dementing process and he needs help to make informed decisions about his care, accommodation and treatment. KYJ is currently his enduring guardian. “I do not know how viable that arrangement is and whether this decision making role will eventually become too difficult for her, given her own medical needs.”

Views of family members and supporting documentation

25. In an e-mail to the Tribunal, Ms Z stated that she is writing on behalf of the family of QKJ. She stated that the family has recently been informed that BZU from the public hospital has lodged an application for a review of the enduring guardianship appointment. Ms Z stated that the family members have expressed their wishes that KYJ continues as the enduring guardian, but are agreeable to CAD and LBC acting jointly as guardians.

26. As indicated above, shortly before the hearing the Tribunal was provided with a report from Dr U who stated that had been QKJ’s general practitioner for the last seven years. He stated that he has noticed “a degree of cognitive decline” but he has been able to keep his appointments and discuss his health. He stated that he had done an MMSE on that day and QKJ “scored 24 and his MOCA was 20”.

27. The letter from the support provider, also provided shortly before the hearing, states that the support provider, of a regional NSW branch, is the approved provider for Home Care Package services and has provided care to both QKJ and his wife KYJ. They are accepting assistance to assist them to live independently at home. Their support workers assist them in their home six days a week and from the feedback of the staff they are “managing adequately.” The community service provider’s nurses are also visiting their home twice a week. The attached care plans provide details of the services and support QKJ and KYJ receive.

DETERMINATION OF PROCEDURAL APPLICATIONS

Application for Legal Representation

28. Each party to proceedings in the Tribunal is responsible for their own case and is not entitled to be represented by any other person: Civil and Administrative Tribunal Act 2013 (NSW) (“CAT Act”), s 45(1)(a). A party may be legally represented by an Australian legal practitioner if the Tribunal grants leave to a particular legal practitioner or to any legal practitioner: CAT Act, s 45(1)(b). The Tribunal has discretion as to whether it will grant leave, and may refuse or revoke leave: CAT Act, s 45(2). If leave is granted, the Tribunal may impose such conditions on the grant of leave as it thinks fit: Civil and Administrative Tribunal Rules 2014 (NSW), r 31(2).

29. Proceedings in the Guardianship Division are conducted in accordance with the principles in s 4 of the Guardianship Act 1987 (NSW). These principles are applicable when determining an application by a party for leave to be represented by another person. The Guardianship Division Procedural Direction on Representation provides guidance as to the factors that may be considered by the Tribunal when determining whether to grant leave.

30. During the hearing, Mr Cain indicated that he was seeking leave to provide legal representation to QKJ and KYJ. He said he had only received the documents late yesterday afternoon and he has not e-mailed them to QKJ and KYJ as he believes they will need to see hard copies of the documents.

31. Mr Cain said he has represented QKJ and KYJ on numerous occasions in the past and has a strong relationship with them. He plans to meet with QKJ and KYJ to discuss the contents of the documents in the next week so he can prepare a response, based on their instructions. He indicated that he believes legal representation could assist in achieving a just and fair outcome in relation to the application.

32. We are satisfied that allowing QKJ and KYJ to be legally represented may assist the Tribunal in its determination and resolution of the issues in dispute. In that context, we decided to grant the application for leave for legal representation to both QKJ and KYJ.

Adjournment

33. The Tribunal may adjourn proceedings to any time and place: CAT Act, s 51. When considering whether to adjourn proceedings, the Tribunal has regard to the guiding principle of the CAT Act which is to facilitate the just, quick and cheap resolution of the issues in the proceedings (s 36(1)). The Tribunal may also consider the principles in s 4 of the Guardianship Act, including that the paramount concern is the welfare and interests of the person who is the subject of the proceedings.

34. The Tribunal is required to take such steps as may be reasonably practicable to ensure that the parties understand the nature of proceedings and have a reasonable opportunity to be heard or otherwise have their submissions considered: CAT Act, s 38(5). The Tribunal is also required to ensure that all relevant material is disclosed to enable it to determine all of the relevant facts in issue in the proceedings: CAT Act, s 38(6).

35. During the hearing, Mr Cain submitted that as QKJ and KYJ have only recently instructed him, and have not been given the relevant documents, it would be procedurally unfair to continue the hearing.

36. Mr Cain submitted that he does not believe there is any significant risk to QKJ and KYJ if the hearing is adjourned. He said he has spoken to QKJ and KYJ’s family members and they have significant support. The family live locally and QKJ and KYJ also live very close to the hospital. He said he is not seeking a lengthy adjournment and he would be prepared to proceed with the hearing in two weeks’ time. Mr Cain confirmed that it is his submission that an adjournment would not be “significantly detrimental” to QKJ.

37. BZU said QKJ discharged against medical advice from the public hospital about three weeks ago. He said that there is a risk at a “high level” but he nevertheless supports an adjournment for a few weeks. He said he is unsure whether there is family support as KYJ has been very “guarded” in the provision of information to the hospital.

38. BZU confirmed that QKJ has had frequent hospital admissions for numerous comorbidities and the admissions are often associated with falls at home. However, KYJ has not shown any reluctance to take her husband to hospital if necessary, and BZU confirmed they live very close to the hospital.

39. KYJ said she has “good support” from her family, including her brother, Mr T, who lives nearby. She said her husband had more falls in the nursing home than he has had at home and at home he is able to walk around the garden and make himself a cup of tea. She said they have a large home and services come in to help them every day and shower her husband. A nurse also comes to help him with his catheter.

40. When asked why the information in the documentation indicates that she had told staff at the hospital that she did not have support from her children, KYJ said she does not believe in telling people her business. She disputed that she and her husband do not have family support.

41. The Tribunal has balanced our procedural fairness obligation with the risks posed to QKJ if the hearing is adjourned. We consider that the information provided to the Tribunal indicates there is considerable cause for concern regarding QKJ’s safety in his home. However, against this we accept that KYJ and QKJ live close to the hospital and KYJ has certainly shown no reluctance to take her husband to hospital, as evidenced by his numerous hospital admissions. QKJ and KYJ also receive daily services and we are satisfied that there is some additional oversight provided to them by their service providers.

33. We accept that QKJ and KYJ have not been able to consult with their legal representative and have not obtained the extensive documents provided by the hospital. It is clear that they strongly oppose the application, and we accept that it would be procedurally unfair to proceed with the hearing without them having an opportunity to discuss the material with their legal representative, and enable them and the other parties to comment on the material, and provide any additional documentation to support their views regarding the suitability of KYJ’s continuing appointment as enduring guardian.

34. We have, therefore, decided to adjourn the application to a date to be fixed by the registry. We have indicated in our instructions to the registry that it would be preferable for the hearing to be in no more than two weeks’ time, if at all possible.

35. As also discussed during the hearing, we consider it advisable that Dr X be available to participate in the next hearing.

**********

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 23 August 2022