UAM

[2020] NSWCATGD 85

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

UAM [2020] NSWCATGD 85

Hearing dates:

4 August 2020

Date of orders:

4 August 2020

Decision date:

04 August 2020

Jurisdiction:

Guardianship Division

Before:

C P Fougere, Principal Member

Decision:

The guardianship order for UAM made on 1 August 2019 has been reviewed. The order now is as follows:

1. The Public Guardian is appointed as the guardian.

2. This is a continuing guardianship order for a period of two years from 4 August 2020.

3. This is a limited guardianship order giving the guardian(s) custody of UAM to the extent necessary to carry out the functions below.

FUNCTIONS:

4. The guardian has the following functions:

a) Access

To decide what access UAM has to others and the conditions of access.

b) Accommodation

To decide where UAM may reside.

c) The guardian may authorise others including members of NSW Police and the Ambulance Service of NSW to:

i) take UAM to a place approved by the guardian.

ii) keep them at that place.

iii) return them to that place should they leave it.

d) Health care

To decide what health care UAM may receive.

e) Medical/Dental consent

To make substitute decisions about proposed minor or major medical or dental treatment, where UAM is not capable of giving a valid consent.

CONDITION:

5. The condition of this order is:

a) Standard Condition

In exercising this role the guardian shall take all reasonable steps to bring UAM to an understanding of the issues and to obtain and consider their views before making significant decisions.

Catchwords:

GUARDIANSHIP – review of guardianship order – permanent resident of aged care facility – unsupported allegations of neglect and abuse by Public Guardian – concerns over separation of subject person and spouse – service needs met by aged care facility – suitability of proposed guardian – supporting material not received – no evidence on ability to meet statutory criteria – family conflict – separate representative and family member oppose proposed guardian – Public Guardian reappointed

PROCEDURE – rejection of adjournment request – guiding principle in Tribunal proceedings – non-compliance with evidence timetable – hearing proceeded in absence of certain evidence – reasonable opportunity to be heard – limits on presentation time of parties – unsupported allegations of actual bias of Tribunal Member – no evidence to support recusal

Legislation Cited:

Civil and Administrative Tribunal Act 2013 (NSW), ss 36, 36(1), 38, 38(5)(c), 38(6)(a)-(c)

Guardianship Act 1987 (NSW), ss 3(1)-(2), 4, 4(a), 4(c), 4(e), 4(g), 14, 14(1)-(2), 15(3), 16(3), 17(1), 17(1)(a)-(c), 25(2)(a)-(c), 25C; Pt 5

Cases Cited:

Chi v Roger Fuller Pty Limited [2018] NSWCATAP 95

IF v IG [2004] NSWADTAP 3

IR v AR [2015] NSWSC 1187

Michael Wilson & Partners Limited v Nicholls & Others [2011] HCA 48; 244 CLR 427

P v NSW Trustee and Guardian [2015] NSWSC 579

Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98

W v G [2003] NSWSC 1170; (2003) 59 NSWLR 220

ZKF v ZKG [2019] NSWCATAP 64

Texts Cited:

NSW Civil and Administrative Tribunal, Message from the President, “Temporary changes to NCAT operations”, 10 July 2020, accessed 10 November 2021

Category:

Principal judgment

Parties:

007: Review of Guardianship Order

UAM (the person)
Public Guardian (appointed guardian)
LZM (joined party)
BYM (joined party)
NSM (spouse)

009: Requested Review of Guardianship Order

UAM (the person)
BYM (applicant)
Public Guardian (appointed guardian)
NSM (spouse)

Representation:

J Kambas, Separate Representative for UAM

File Number(s):

NCAT 2019/00158342

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

Background

1. UAM is an 82-year-old man of Greek descent who has been married to his wife, NSM, for over 65 years.

2. UAM and NSM have two sons: BYM and LZM.

3. UAM has lived at the Aged Care Facility 2 in West Sydney as a permanent resident since April 2020. Prior to that time, UAM and NSM lived at their apartment in Southwest Sydney until April 2019 when they were both admitted to a public hospital. NSM had been diagnosed with dementia in 2015 and UAM had been her primary carer. UAM also developed dementia and their admission to the public hospital was prompted by the increasing behavioural and psychological symptoms of dementia (BPSD) that UAM was experiencing. They both spent lengthy periods of time in hospital before being discharged: NSM in November 2019 to the Aged Care Facility 1 and UAM in April 2020 to the Aged Care Facility 2. The evidence before me is that due to the severity of UAM’s BPSD, he has had a number of periods of hospitalisation since the hearing on 1 August 2019 because of episodes of aggression and violence that could only be managed in a hospital setting. A trial was undertaken for UAM to live at the Aged Care Facility 1 where NSM was residing but this proved unsuccessful due to incidents in which UAM’s aggressive and agitated behaviour was directed towards his wife. A decision was made by the Public Guardian, in consultation with health care professionals, for UAM to be transferred to the Aged Care Facility 2 as this facility had the expertise to manage his care needs and behavioural issues. This decision was made in December 2019 but was not implemented until April 2020 due to further periods of hospitalisation. The evidence before me was that this decision sought to address UAM’s particular care needs and to ensure NSM’s safety and well-being.

4. On 1 August 2019 the Tribunal made a guardianship order for UAM and appointed the Public Guardian as his guardian for 12 months. The Public Guardian was given decision-making authority about UAM’s access, accommodation (including the ability to authorise others including police and ambulance services to take him to a place approved by the guardian, keep him at that place and return him to that place should he leave it), health care, medical and dental treatment and services. On the same date, a financial management order was made for UAM that committed the management of his estate to the NSW Trustee and Guardian.

5. Orders made in similar terms were made on the same date in relation to NSM, the only variation being that in relation to the guardianship order for NSM, the Public Guardian was not provided with the additional power that it has in relation to UAM to authorise others, including police and ambulance services, to implement any accommodation decisions that are made.

6. The hearing of the reviews of the guardianship orders for UAM and NSM at the end of their respective terms was listed on 4 August 2020.

7. In anticipation of that hearing, I convened a directions hearing on 22 July 2020 and made the following directions:

“1    [UAM] is to be separately represented.

2    [LZM] is joined as a Party.

3    [BYM] is joined as a Party.

4    The request by [BYM] to represent [UAM] is refused.

5    By close of business 29 July 2020, all parties and the separate representative are to give to the Tribunal all material on which they rely in electronic form.

6    By close of business 29 July 2020, any person seeking to be appointed as the guardian for [UAM] must give to the Tribunal a statement setting out their view and any supporting material about their ability to undertake the role of guardian. The statement is to include:

1.    A description of any conflict, real or perceived, between their interests (for example, property, assets) and those of [UAM].

2.    Details of any loan (or similar dealings) made by them to [UAM].

3.    Details of any loan (or similar dealings) made by [UAM] to them.

4.    Their history of any charges or convictions for criminal offences.

4. (sic)   Their history of bankruptcy.

5.    Details of any civil proceedings involving [UAM] and the person seeking to be appointed as guardian.

6.    Their proposal/s for decisions about [UAM]’s accommodation, health care, medical treatment and services in the event that another guardianship order is made for [UAM] and the person is appointed as his guardian.”

8. Directions in the same terms were made on the same date in relation to NSM.

9. On 31 July 2020, BYM filed applications in relation to both of his parents requesting a review of the guardianship orders made for each of them. In the application in relation to UAM, BYM indicated that he wished the current order to end and to replace the current guardian. In an annexure to the application for review, BYM sets out a description of the neglect and abuse he believes his father has experienced, the failures of the Public Guardian and the Tribunal in relation to his father and his opposition to the decision for his parents to live in different aged care facilities.

10. The application for review lodged by BYM in relation to his mother was in similar terms.

11. The following matters were ultimately listed before me for hearing on 4 August 2020:

1. a review of the guardianship order made for UAM on 1 August 2019 conducted pursuant to s 25(2)(b) of the Guardianship Act 1987 (NSW) (“the Act”)

2. a review of the guardianship order made for UAM on 1 August 2019 conducted at the request of BYM pursuant to s 25(2)(a) of the Act

3. a review of the guardianship order made for NSM on 1 August 2019 conducted pursuant to s 25(2)(b) of the Act

4. a review of the guardianship order made for NSM on 1 August 2019 conducted at the request of BYM pursuant to s 25(2)(a) of the Act

12. Given the overlap of issues, I conducted concurrent hearings to determine the reviews in relation to both UAM and NSM.

13. Mr John Kambas appeared as the separate representative for both UAM and NSM at the hearing. Submissions made by Mr Kambas are referred to where relevant in these Reasons for Decision.

14. At the conclusion of the hearing on 4 August 2020, I renewed the guardianship order for UAM and reappointed the Public Guardian for two years as his guardian. I varied the order by including the same functions as in the original guardianship order other than the services function. These are the reasons for that decision.

15. On 4 August 2020 I also renewed the guardianship order for NSM in similar terms.

16. Because of the overlap in issues, these Reasons for Decision in part duplicate the reasons for my decision to renew the guardianship order for NSM.

17. In these Reasons for Decision all references to “UAM” are to UAM.

The hearing

18. Due to the restrictions imposed by the COVID-19 pandemic, the hearing on 4 August 2020 proceeded without any of the participants appearing in person. This was in accordance with the direction of the Hon Justice Armstrong, President of the NSW Civil and Administrative Tribunal (“NCAT), dated 10 July 2020 (

19. The following people participated in the hearing by telephone:

• UAM

• BYM

• LZM

• Representatives of the Aged Care Facility 1 (Ms S, Director of Nursing, and Ms R, Dementia Support Co-ordinator)

• Representatives of the Aged Care Facility 2 (Ms Q, Service Manager and Ms P, Director of Nursing)

• Representatives of the Public Guardian (Mr ZZ, Principal Guardian and Ms YY, Regional Manager)

• Mr John Kambas, separate representative

20. An interpreter in the Greek language also assisted UAM where possible to communicate his views during the proceedings.

21. Whilst NSM did not take part in the hearing and UAM was limited in the extent that he could participate in the proceedings, none of the parties or other participants disputed that another guardianship order should be made for UAM.

22. The real issue in dispute was who should be appointed as his guardian. BYM wished to be appointed as the guardian for both his parents. LZM opposed the appointment of his brother and supported the reappointment of the Public Guardian.

23. The hearing for both UAM and NSM proceeded over approximately three hours and was conducted in a manner that sought to give effect to the guiding principle to facilitate the just, quick and cheap resolution of the real issues in the proceedings: Civil and Administrative Tribunal Act 2013 (NSW) (“CAT Act”), s 36(1). This was at times challenging due to what might, with respect, be described as the complex family dynamics in UAM’s family and the strongly held views of BYM. As a result, when the stage of the proceedings was reached for me to hear evidence and submissions about who should be appointed as the guardian for UAM and NSM, I decided to require the presentation of the respective positions of the parties to occur within specified timeframes: CAT Act, s 38(6)(c). I decided that this was appropriate in order to attempt to ensure that the proceedings continued to be conducted in an efficient manner and also to provide all parties with the opportunity for presentation of their respective positions within a period of time that I considered reasonably necessary for the fair and adequate presentation of those positions. BYM was given 30 minutes to address me on his application to be appointed as the guardian for his parents as well as a further five minutes for final submissions. Each of the other parties and separate representative were given 10 minutes each to provide their views about who should be appointed as guardian as well as five minutes for final submissions.

Direction for material to be provided in support of application to be appointed guardian

24. Direction 6 made on 22 July 2020 directed that by close of business 29 July 2020, any person seeking to be appointed as the guardian for UAM was to provide a statement and supporting material addressing their application to be appointed.

25. Nothing was received by the Tribunal registry by this date in accordance with the direction.

26. BYM told me that he wished to be appointed as the guardian for his parents but that Direction 6 made on 22 July 2020 and the timeframe contained therein to submit the material required was “impossible for anyone to comply with”. He also told me that on the day prior to the hearing and on the morning of the hearing, he emailed to the Tribunal Registry, and copied to the separate representative’s email address, material that included a 10-page submission, audio and video recordings.

27. As I understood his evidence about this issue, the recordings made by BYM consisted of: incidents showing his father was being chemically restrained; recordings made of nursing staff; telephone conversations between him and his father to the effect of his father asking him to leave hospital; video recordings of his mother; photographs showing bruises on his father’s body. In response to my question, BYM indicated that he had not sought consent from those people he had recorded to be recorded and that he did not need permission or consent to do so. Based on the content of the annexure provided with his review application in relation to his mother, I understood that the video recordings went towards BYM’s assertions that his parents have been mistreated and overmedicated. According to BYM the audio recordings of conversations between he and his father show that UAM is able to express a view about the issues before the Tribunal when he is not being overmedicated.

28. BYM also told me that the material he said that he emailed to the Tribunal registry included a letter from a friend of his father who had known his father for a very long time and in BYM’s view was “crucial”.

29. I informed BYM that none of this material had been provided to me by the Registry. Upon asking the Tribunal Registry to check its records, I was advised that there was no record that this material had been received from BYM. I told BYM and the other participants in the hearing of this advice. The separate representative also checked his email account during the hearing and advised that he had no record of receiving this material from BYM. None of the other parties to these proceedings indicated that they had received this material.

30. BYM objected to me proceeding without having this material before me. Although he did not frame it precisely in these terms, I understood BYM to be requesting an adjournment of these proceedings on the basis that he had material to put before me in support of his application to be appointed as the guardian; as far as he was concerned it had already been emailed to the Tribunal registry on the day prior and early on the morning of this hearing; and that it would be unfair to him and not in the interests of his parents if I were to proceed without this material as he believes that the Public Guardian has not been acting in his parents’ best interests.

31. Adjournment applications should be considered in light of the guiding principle which is to facilitate the just, quick and cheap resolution of the real issues in the proceedings: CAT Act, s 36. Such applications should also be considered in view of the following obligations placed upon the Tribunal pursuant to s 38 of the CAT Act:

1. to take such measures as are reasonably practicable to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings: CAT Act, s 38(5)(c); and

2. to ensure that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in any proceedings: CAT Act, s 38(6)(a).

32. The Tribunal may require evidence or argument to be presented orally or in writing: CAT Act, s 38(6)(b).

33. The principles concerning adjournment requests were recently set out in the decision of the NCAT Internal Appeal Panel in the decision of Chi v Roger Fuller Pty Limited [2018] NSWCATAP 95 at [55]-[56]:

“[55]    In O’Neill v T and I Engines Pty Ltd [2015] NSWCATAP 77 at [22], the Appeal Panel identified the following principles governing applications for an adjournment:

(1)    matters should almost always proceed on the date fixed for hearing, for the reasons enunciated above,

(2)    an application for an adjournment should be seen as the exceptional rather than the ordinary course;

(3)    where the adjournment is caused, at least in part, by the delay of the party seeking the adjournment, or non-compliance by that party with an extant order of the Tribunal, adequate explanation is called for, and its absence weighs heavily, and sometimes decisively against the grant of an adjournment.

[56]    Refusing an adjournment may be inappropriate if it has the effect of depriving a party from adequately presenting the parties case: Armee v Brearley [2017] NSWCATAP 141 at [121] and [135]. However, in considering an adjournment application, the Appeal Panel must take into account all the relevant facts and circumstances of the matter, in the context of its guiding principle under s 36 of the Civil and Administrative Tribunal Act 2013.”

34. When exercising functions in the Guardianship Division, including requests for adjournment, the Tribunal must also consider the principles in s 4 of the Act and that paramount consideration is to be given to the welfare and interests of persons who have disabilities: the Act, s 4(a).

35. Having regard to all of the relevant facts and circumstances in this case and applying these principles, I decided not to adjourn the hearing for the following reasons:

1. BYM acknowledged that he had not complied with the timetable in Direction 6 made on 22 July 2020. Whilst I had regard to BYM’s submission that that timetable was unreasonable, he did not raise this concern with me at the time of the directions hearing. He did not take any other steps to try and address this issue. For example, he did not contact the Registry prior to the hearing date to advise of any difficulty that he may have had in complying with the direction and to seek, for example, an amendment to the timetable.

1. Direction 6 was in terms similar to directions made by the Tribunal on 24 July 2019 leading up to the hearing that was conducted on 1 August 2019 (set out at [63] of the Reasons for Decision for the hearing on 1 August 2019). BYM was not unfamiliar with the type of material that a proposed private guardian may be asked to provide.

2. In my view, BYM’s explanation for non-compliance with the directions made on 22 July 2020 was inadequate in the absence of evidence of any attempts by him prior to the hearing date to advise the Tribunal of any difficulties he had with compliance.

3. BYM asserts that he did ultimately email material in response to this direction but in close proximity to the hearing, that is, on the day prior to the hearing as well as on the morning of the hearing prior to its commencement at 9:30am.

4. Even if this material had been received by the Tribunal and the separate representative, it had not been sent by BYM to the other parties. Given the clear potential for procedural unfairness to the other parties if this material was before the Tribunal but they were not given a reasonable opportunity to consider it, the issue as to whether the material would have been accepted into evidence would have had to have been resolved.

5. There was no record of this material being received by the Tribunal registry or the separate representative. None of the parties to these proceedings had received the emails or the attachments to those emails as purported to have been sent.

6. In considering whether to adjourn the hearing to provide BYM with a further opportunity to provide this material, I considered the relevance of the material that BYM asserted was attached to the purported emails. BYM’s submission was that this was evidence that would support his application to replace the Public Guardian as guardian as it showed, as far as I understood the submission, that the Public Guardian was complicit in the poor management of the care of his parents. It was not clear, however, when the video or audio recordings were made and I was not sufficiently persuaded that their content as described was so critical to the matters that I had to determine that I should adjourn the hearing so that I could consider them. I was satisfied that BYM could provide evidence as to what he believes are the deficiencies in the actions of the Public Guardian and to explain his concerns about the medical care provided for his parents without delaying the resolution of these proceedings by way of an adjournment. In addition, on his own admission, BYM made recordings of telephone and other conversations with nursing home staff without informing those persons that he was recording the conversation. The recordings therefore appear to have been undertaken without the consent of those involved. The lawfulness or otherwise of such recordings was also an issue that I took into account and weighed against a decision to adjourn the proceedings in order to access the recordings.

7. I formed the view that it would not promote UAM’s welfare and interests to adjourn the proceedings in all of these circumstances as clarity and certainty about the decisions to be made on his behalf, and who should make them, are critical matters at this time in his life given the evidence of the significant degree of care and support that he requires.

8. I provided BYM with the opportunity to make oral submissions supporting his application to be appointed as guardian and to read from the 10-page statement that he said he had emailed to the Tribunal registry.

Allegations made by BYM about my lack of impartiality

36. BYM made assertions during the hearing that I did not bring an impartial mind to these proceedings. I understood from his statements that BYM believed that I was demonstrating actual bias against him in these proceedings. He asserted, amongst other matters:

1. that on 31 July 2020, Justice Armstrong [President of NCAT], Principal Member Anne Britton and I had a meeting to discuss this hearing and that it was “made clear by Lea Armstrong to [me] of the fate of the hearing on 4 August 2020 and that [BYM’s] application would be unsuccessful”. I note that Principal Member Britton was the presiding member on the Tribunal panel that decided on 1 August 2019 to appoint the Public Guardian for UAM;

2. In response to a question from me as to the basis for his belief that there was a meeting between me and any person about this matter, BYM’s response was to the effect that someone in NCAT gave him this information, that he has had it confirmed “in writing and in conversation” as to “exactly what went on” and that he is hoping that some investigation will resolve the matter.

37. I informed BYM that the meeting he described did not occur.

38. I also asked BYM whether he was seeking that I recuse myself from presiding on these proceedings. BYM told me that he did not seek to do so.

39. The allegations made by BYM about my purported conduct, and that of the President and another Principal Member, leading up to this hearing were serious and assert inappropriate conduct by those named. Although BYM did not request that I recuse myself, as he was an unrepresented litigant I nevertheless considered the application of the principles when an allegation of actual bias is made by a party to proceedings.

40. These principles are succinctly set out in the decision of the Court of Appeal in Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98, at [68]–[73]:

“68    A finding of actual bias is a grave matter: Sun v Minister for Immigration and Ethnic Affairs (1997) (Sun v Minister) 81 FCR 71 at 127 per Burchett J. Authority requires that an allegation of actual bias must be distinctly made and clearly proved; that such a finding should not be made lightly; and that cogent evidence is required: South Western Sydney Area Health Services v Edmonds [2007] NSWCA 16 at [97] and the authorities there cited.

69    Where the issue is actual bias in the form of prejudgment, the appellant had to establish that the primary judge was ‘so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented’: Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; 205 CLR 507 at [72] per Gleeson CJ and Gummow J (Hayne J agreeing at [176]). See also Kirby J at [127].

70    As Gleeson CJ and Gummow J observed in that case at [71]:

‘The question is not whether a decision-maker's mind is blank; it is whether it is open to persuasion.’”

41. The test of actual bias in the form of prejudgment requires an assessment of the state of mind of the judge in question: Michael Wilson & Partners Limited v Nicholls & Others [2011] HCA 48; 244 CLR 427 at 437 [33].

42. The allegations made by BYM that I demonstrated actual bias in the manner I conducted these proceedings and in relation to the decisions that I arrived at were without foundation. No evidence was provided to support his allegations, only assertion. I concluded that there was no basis upon which I should consider recusing myself.

What did the Tribunal have to decide?

43. Under s 25C of the Act, on reviewing the guardianship order for UAM:

• pursuant to s 25(2)(b) of the Act, I could renew the order or renew and vary the order or determine that the order is to lapse and revoke the order in respect of any unexpired period for which the order is specified to have effect;

• pursuant to s 25(2)(a) of the Act, I could vary, suspend and revoke, confirm, renew or renew and vary the order.

44. The questions that I considered were:

• Is UAM someone for whom the Tribunal could make an order because he continues to have a disability which prevents him from being able to make important life decisions?

• Should the Tribunal make a further guardianship order and if so, what order should be made?

• Who should be the guardian?

• How long should the order last?

Is UAM someone for whom the Tribunal could make a further order because he continues to have a disability which prevents him from being able to make important life decisions?

45. Section 14 of the Act provides that the Tribunal may make a guardianship order for a person if it is satisfied that he or she is “a person in need of a guardian”. A person in need of a guardian is a person who because of a disability is totally or partially incapable of managing his or her person: the Act, s 3(1). A person with a disability is a person who is:

1. intellectually, physically, psychologically or sensorily disabled;

2. of advanced age;

3. a mentally ill person within the meaning of the Mental Health Act 2007 (NSW); or

4. otherwise disabled;

and by virtue of that fact is restricted in one or more major life activities to such an extent that he or she requires supervision or social habilitation: the Act, s 3(2).

46. The Tribunal has previously found that UAM “has a Major Neurocognitive Disorder, most likely Dementia with Lewy Bodies” (at [37]) and that the “weight of medical opinion is that UAM is currently unable to manage his person and his ability to do so is likely to continue to deteriorate” (at [38]). A discharge summary from a public hospital dated 27 April 2020 also describes UAM’s diagnosis as “vascular dementia with BPSD”.

47. The evidence provided on this occasion indicated that UAM continues to require a high-level of support to meet his daily needs as a result of his advancing dementia.

48. It was not disputed by any of the participants in the hearing that UAM has a disability that impaired his decision-making capacity in a significant manner.

49. On the basis of the evidence before me I found that UAM continues to be a person for whom I could make a guardianship order as he has a disability, namely cognitive impairment resulting from dementia diagnosed as Lewy Body dementia as well as vascular dementia, and continues to be restricted in important major life activities to such an extent that he requires supervision or social habilitation: the Act, s 3(2). He has a significant “need for services to help [him] function normally in community with others” (P v NSW Trustee and Guardian [2015] NSWSC 579, at [303]) and is incapable of managing his person: the Act, s 3(1).

50. UAM is therefore a “person in need of a guardian”: the Act, s 14(1).

Should the Tribunal make a further guardianship order and if so, what order should be made?

51. In deciding whether or not to make a guardianship order for UAM I was required to consider the factors listed in s 14(2) of the Act. These factors are the views (if any) of UAM, NSM and any carers, the importance of preserving UAM’s existing family relationships and cultural and linguistic environment, and the practicability of services being provided to UAM without the need for the making of a guardianship order.

52. These matters have no hierarchy or weighting and each is a mandatory consideration. However, the Tribunal must undertake a balancing exercise for its consideration of the matters in s 14(2) of the Act. When undertaking this task the Tribunal may be guided by the principles that are set out in s 4 of the Act (see IF v IG [2004] NSWADTAP 3).

UAM’s views

53. UAM participated for part of the hearing time. An interpreter in the Greek language participated for the same period of time that UAM participated. I attempted to seek UAM’s views about the matters before me. I was particularly concerned to seek these views given the evidence that for some period of time now, UAM and NSM have lived in separate aged care facilities for the reasons previously outlined. The physical separation of UAM and NSM occurred in late-2019. There was general consensus amongst those participating in the hearing that there should be a trial of visits between UAM and NSM in light of the evidence that the medical care that UAM now receives has led to a significant change in his behaviours and a lessening of the symptoms of agitation and aggression that he previously experienced.

54. UAM is prescribed major medications to treat the symptoms of his dementia. It appears that some of the medications may have a sedative effect that was evident in the hearing. UAM’s responses to my questions, sometimes in English and sometimes in Greek with the assistance of the interpreter, were limited in content and did not indicate an ability to engage in a meaningful way with the issues before me in the hearing although it was unclear whether this could be attributed solely to the effect of his medications rather than also the impact of dementia on his ability to process and understand the matters raised by these proceedings. In response, for example, to my question whether there was anyone that he would like to be his guardian, UAM’s said “No”, “They will find a solution” and “It doesn’t matter what will happen to me.”

55. Nevertheless, I had careful regard to all of the evidence, including that provided by UAM and NSM’s sons, that given the very long marriage between UAM and NSM and at this stage of their lives, it is likely to be the case that were it possible for UAM and NSM to return to living together or at the very least having regular contact with each other, this is something that they would have wanted to happen were they in a position to express a view about this. I therefore took this issue into account in weighing up whether or not to make a guardianship order for UAM.

NSM’s views

56. Due to the severity of her dementia, NSM was unable to participate in the hearing and I was therefore unable to obtain her views.

The views of the separate representative

57. The separate representative supported the making of an order for UAM.

The views of UAM’s sons

58. UAM’s sons agreed that there is a need for another guardianship order to be made.

The importance of preserving UAM’s existing family relationships

59. I formed the view that the making of a guardianship order will enable consideration to be given to preserving one of the most significant relationships in UAM’s life, namely the relationship with his wife. The appointment of a guardian will enable, at the very least, consideration to be given to the resumption of contact between them as long as this occurs in a way that is consistent with health professional advice and does not jeopardise the health and well-being of either UAM or his wife.

60. I also had regard to the importance of the preservation of UAM’s relationships with each of his sons. There was no evidence that the current guardianship order had impaired the ability of UAM’s sons to have contact with him. Although restrictions created by the COVID-19 pandemic have created other challenges for contact, LZM told me, for example, that he and his children have been able to keep in regular contact with UAM during this time.

61. It was evident at this hearing that the relationship between UAM and NSM’s sons continues to be conflicted. I note that the Reasons for Decision of the Tribunal that made the initial guardianship order for UAM on 1 August 2019 described a “history of deep seated animosity between the brothers” (at [48]). I formed the view that the making of a guardianship order that enabled decisions about access to UAM to be made in a way that reduced the potential for contact, and conflict, between the two brothers, would be in his interests and would promote the preservation of his relationship with both of his sons.

The importance of preserving UAM’s particular cultural and linguistic environment

62. I had regard to the importance of preserving UAM’s particular cultural and linguistic environments. This environment is provided by his family who share UAM’s Greek heritage. There was no evidence available to me to indicate whether the making of a guardianship order would materially affect the preservation of UAM’s Greek cultural and linguistic environment.

The practicability of services being provided to UAM without the need for the making of an order

63. I also had to consider the practicability of services being provided to UAM without the making of a guardianship order. I was satisfied that due to the extent of his cognitive impairment, it is impracticable for UAM to be provided with the high level of support that he requires without the making of an order. Decisions are not able to be made on an informal basis as UAM is unable to make informed decisions on his own behalf and his wife is unable to do so. The conflicted relationship between UAM’s sons would not allow, in my view, significant decisions to be made on his behalf on an informal basis in a considered and consultative manner.

Consideration

64. Having considered all of the available evidence and having regard to the factors set out in ss 14(2) and 4 of the Act, I decided to exercise my discretion to renew the guardianship order for UAM. Significant decisions still need to be made in UAM’s life and the renewal of the guardianship order will, in my view, ensure that these decisions are made giving paramount consideration to his welfare and interests and to ensure all of his health and care needs are met. Also weighing in favour of the renewal of an order is the animosity that continues to exist between UAM’s sons and the need to ensure that UAM is able to maintain a relationship with each of his sons without the conflict between them coming in the way of this. The making of an order will also enable significant decisions to be made on UAM’s behalf as it is unlikely on the available evidence that such decisions could be made by his sons on an informal basis in a manner that promotes his welfare and interests without conflict.

65. In arriving at this view, I noted that there was no dispute raised by any of the participants in the hearing that another guardianship order should be made for UAM.

What functions should the guardian be given?

Access

66. An access function was included in the order made on 1 August 2019 on the basis of the “extreme conflict between the brothers and the history of conflict with the hospital about access to [UAM] and [NSM]” (at [57]). The Tribunal noted on that occasion that an access function would “enable decisions to be made about who can contact and visit [UAM] and the associated arrangements” (at [57]).

67. In written and oral submissions made on behalf of the Public Guardian, Ms YY advised that the Public Guardian has not been required to make any decisions regarding access as UAM has generally been in hospital settings where visits have been managed by the hospital. Since UAM’s recent placement in residential aged care restrictions have been placed on visitors uniformly due to the COVID-19 pandemic and the risk posed to vulnerable older people. Ms YY on behalf of the Public Guardian expressed the view that decisions about access may be required, however, if these restrictions change.

68. As previously noted in these Reasons for Decision, a consistent theme in the evidence provided by a number of participants in the hearing, including UAM and NSM’s sons, was that attempts should be made to allow UAM and NSM to have contact with each other particularly now that the circumstances that led to their separation appear to have been addressed at least in part by the medical care that UAM has been receiving.

69. I formed the view that an access function should be included in the order so that the appointed guardian may make decisions about this issue having regard to relevant health professional views and consideration of whether it is in the interests of each of UAM and NSM for such contact to occur.

70. I was also of the view that this function should also be included to enable decisions to be made, if necessary, about the access that UAM’s sons are able to have with him and the arrangements made for such access so that the potential for contact and conflict between the two sons is minimised.

Accommodation

71. UAM is a permanent resident at the Aged Care Facility 2. The submissions made on behalf of the Public Guardian noted that up until April 2020 when he was discharged to the Aged Care Facility 2, UAM’s accommodation had been unstable during the course of the guardianship order due to the severity of his symptoms of dementia and the need for respite and hospitalisation. The Public Guardian recommended that the accommodation function should be included in a renewed order.

71. I decided that it was appropriate to include an accommodation function in the order in the event that proposals are made for a change to his accommodation given his high level of support needs. On the last occasion the guardianship order provided the guardian with additional authority to authorise ambulance and police services to assist in the implementation of any accommodation decision made on UAM’s behalf and I decided to include this function in the renewed order.

Health care decisions and consent to medical and dental treatment

73. UAM was discharged from Westmead Hospital to the Aged Care Facility 2 on 27 April 2020. A discharge summary of the same date that was provided to me in these proceedings records the following:

1. UAM was admitted to the public hospital on 14 December 2019 with “increased aggression on background of dementia with [Behavioural and Psychological Symptoms of Dementia]”

2. He was admitted under the Geriatrics team and under the specialist Geriatrician, Dr O.

3. During this admission, multiple Code Blacks were called (a term usually used to describe and alert issues to security staff of an emergency or other event involving patients and/or hospital personnel). The Code Blacks were called “for aggression requiring the use of intramuscular midazolam and occasionally IM haloperidol in addition. Triggers for aggression sometimes included staff leaving the ward leading to exit seeking behaviours.”

4. The following observations were also made of UAM’s symptoms of BSPD during this admission:

1. Often wandering around the ward, “intruding into other patient’s spaces”

2. “Disturbed sleep-wake cycle”, described as resulting in “behavioural disturbance overnight and settled during the day”

3. Occasional “sexually inappropriate behaviour, such as touching staff inappropriately”

5. Behavioural techniques were used to try to manage UAM’s behaviour described as including walking around the ward with familiar staff members, 1:1 nursing staff supervision at times, sitting with staff members and being given tasks such as folding and organising papers, participating in activities such as using fake money to pretend to purchase items on the ward, distraction with food.

74. UAM was discharged from the public hospital with a number of prescribed major medications to manage his symptoms: Lorazepam and Escitalopram (commonly used to treat symptoms of anxiety and depression); Valproate (commonly used to treat symptoms of agitation); Haloperidol (commonly used to treat symptoms of aggression). UAM was also prescribed a number of minor medications to treat other medical conditions.

75. The discharge summary requested that UAM’s general practitioner not change any of these medications without first liaising with the Geriatrics team at the public hospital or the Geriatric Rapid Evaluation, Assessment and Treatment (GREAT) team which is an outreach program of the public hospital’s Geriatric Medicine Department.

76. Progress notes provided by the Aged Care Facility 2 include records made by UAM’s general practitioner, Dr N. These notes indicate that upon admission to the Aged Care Facility 2 on 27 April 2020 the medications listed in the discharge summary from the public hospital continued to be prescribed and administered. The progress notes reflect that a review of UAM’s prescribed psychotropic medications was conducted on 13 June 2020. When compared with the medications and dosages prescribed upon discharge from the public hospital, there have been minimal changes to the medications and dosages. Specified PRN (as needed) medication is also prescribed if required but there was no evidence before me that this medication has been utilised since UAM transferred to the Aged Care Facility 2. Reference is made in the progress notes to the involvement of the GREAT team.

77. These medical records indicate that UAM was prescribed these psychotropic medications when a patient at the public hospital, under the care of a geriatrician and the geriatrics team at the hospital in order to treat the serious symptoms he was experiencing as a result of dementia; the use of the medications has been reviewed by his general practitioner at the Aged Care Facility 2 and dosages have been varied as outlined; and he has been seen by the GREAT team from the public hospital.

78. UAM also has other physical health issues and is currently prescribed a number of minor medications to treat a range of issues including high blood pressure, diabetes and reflux.

79. On the basis of this evidence I decided that the functions of health care and medical and dental treatment should continue to be included in the order as I was satisfied that UAM continues to have complex health care and medical needs arising from dementia and the ageing process.

80. I decided that leaving medical treatment decisions to a family member who may meet the requirements of a ‘person responsible’ under Pt 5 of the Act would not promote UAM’s welfare and interests. This is because of the risk that doing so would heighten conflict and uncertainty for those providing treatment to UAM around decision making if both of UAM’s sons sought to be recognised in this role particularly in relation to the psychotropic medications that he is prescribed.

Services

81. The previous Tribunal included a services function in the order. The evidence indicated that UAM’s service needs are met by the Aged Care Facility 2, there are no foreseeable service decisions to be made and that this function could be allowed to lapse.

82. On the basis of this evidence I decided that there was no need to include a services function in the order.

Who should be appointed as the guardian?

83. BYM wished to be appointed as his father’s guardian.

84. No-one else sought to be appointed in this role.

85. The Tribunal is not able to appoint the Public Guardian as a person’s guardian if there is a private person who can be appointed: the Act, s 15(3).

86. In accordance with s 17(1) of the Act, a person shall not be appointed as the guardian of a person under guardianship unless the Tribunal is satisfied that:

17 Guardians

…

(a)     the personality of the proposed guardian is generally compatible with that of the person under guardianship,

(b)     there is no undue conflict between the interests (particularly, the financial interests) of the proposed guardian and those of the person under guardianship, and

(c)     the proposed guardian is both willing and able to exercise the functions conferred or imposed by the proposed guardianship order.

87. By the combined operation of ss 15(3) and 17(1) of the Act, if satisfied that BYM met the criteria for appointment listed in s 17(1) of that Act, I was precluded from appointing the Public Guardian to act as the guardian of his father.

BYM’s submissions in support of appointment as guardian

88. From the written material provided by BYM in support of his application to be appointed as his father’s guardian I discerned the following:

1. The Public Guardian should be removed as guardian because it made the decision to move BYM’s parents to different aged care facilities;

2. It was “cruel” for the Public Guardian to do so given that UAM and NSM have been together for over 65 years;

3. The Public Guardian made this decision without contacting BYM or giving him the right to put his views;

4. If BYM were appointed as guardian he would rectify these matters. It is his father’s wish not to stay in her current accommodation and he wishes to live with BYM on his farm.

89. After explaining the content of s 17(1) of the Act and the principles set out in s 4 of that Act, I invited BYM to make any oral submissions that he wished to in support of his application to be appointed as his father’s guardian. I have attempted to summarise BYM’s submissions as follows. Given however, their wide ranging nature, the summary does not attempt to capture every point expressed by BYM:

1. There was nothing in the Act or the CAT Act to say that he should not be appointed as the guardian for his parents;

2. The Tribunal is prevented from appointing the Public Guardian if another guardian can be appointed and in this case, that is BYM. He is the eldest son and wants to look after his parents. In the Greek tradition this is paramount and no-one can look after parents the way children can;

3. In relation to my decision to proceed with the hearing in the absence of the audio and video evidence BYM stated he provided to the Tribunal registry on the day prior to and the morning of this hearing:

1. NCAT is a “kangaroo court”, “inflicts pain and suffering on people” and is a “disgrace to the administration of justice”;

2. It has been stated to BYM by “many” that NCAT Tribunal members are “wanna be judges, they are not sworn in and do not follow a code of practice”;

3. NCAT tribunal members “have license to do what they feel”. BYM has “been advised that members of NCAT act as sheriffs believing that hanging is still allowed rather than impartial adjudicating”;

4. BYM asserted, as previously described at [36], that a meeting had occurred between the President of NCAT, another Principal Member and me about this hearing;

5. BYM said that he “understand[s] the hatred Lea Armstrong has for [him] as a few cases did not go her way when she was the Crown Solicitor”. However he had “no idea why Anne Britton hates me”. BYM described Principal Member Britton as acting as “a puppet for Lea Armstrong”, and that if she was a judicial officer she would be reprimanded by the Judicial Commission;

6. BYM said that he “now [has] an excellent prospect of success in an appeal” to the NSW Supreme Court based on my failure to take his evidence into account. This material was “sent in yesterday and there was ample opportunity to pass this onto [me]”.

4. BYM referred to one of my former employers and said that he had been “happy to hear that a former senior solicitor with the Human Rights and Equal Opportunity Commission was now employed by NCAT” and would be hearing his parents’ case. However, I am “now doing the opposite of what [I was] doing”, I have pre-judged the matter and my “morals and ethics are not high as [I am] taking instructions from Lea Armstrong”;

5. BYM also appeared to read from an article that he said that I had written about lawyers and their consumption of alcohol and non-prescribed drugs. I informed BYM that I don’t believe that I have ever written an article about that topic.

6. BYM also made reference to an article that I wrote many years ago for the Law Society Journal in relation to a case study concerning discrimination in the workplace.

7. BYM did not provide an explanation of the relevance of these issues to these proceedings.

8. BYM said that he wanted me “to get on with [my] job” and make a decision so he can appeal it. BYM told me that Justice Wright [of the Supreme Court] has recently found in his favour in another matter and BYM wants me to “get on with my decision”;

9. BYM said that it was unfair that parties (I took BYM to be referring to staff of the aged care facilities at which UAM and NSM reside) were allowed to give evidence at the hearing without notifying the parties or separate representative;

10. The Greek interpreter should have been at the Aged Care Facility 2 with UAM and not on the telephone. This was an “abuse of process”. I should have had the separate representative attend the Aged Care Facility 2 with the Greek interpreter to watch the demeanour of UAM;

11. Aged Care Facility 2 is drugging and chemically restraining UAM. BYM described his father as “not know[ing] where he is today” because he is being drugged and how can his father be living a normal life in the community (s 4(c) of the Act) if he is being drugged;

12. This is a “disgrace of a hearing” because UAM was drugged and did not understand where he was;

13. BYM is in the process of lodging criminal charges against the Public Guardian and NSW Trustee and Guardian for the treatment of his parents.

Views of LZM

90. LZM opposed the appointment of his brother as the guardian for their father.

91. LZM made submissions to the effect that: his brother “is an abusive person”; his brother’s demeanour in the hearing was an “example of this”; and he becomes abusive towards anyone who challenges him. This makes him unsuitable for appointment.

92. LZM said that he has no problem or complaint with the care being provided for his parents.

Submissions of the separate representative

93. The separate representative’s submissions may be summarised as follows. In his view:

1. BYM’s application to be appointed as guardian is commendable. He would like to look after his parents but the question is whether he is suitable given their high-care needs;

2. the brothers “are like Cain and Abel” and that while they both love their father “they hate each other”;

3. LZM describes his brother as “an abuser” but according to BYM he is the best person to be guardian as he is the eldest son and would like to care for them, with professional support, on his farm. It is difficult to know whose version to accept as to BYM’s suitability to be appointed.

94. The separate representative noted that in the Reasons for Decision of the Tribunal on 1 August 2019, the Tribunal looked at these issues and made findings adverse to BYM and did not appoint him as guardian.

Other views

95. The representatives of the Aged Care Facility 2 submitted that the Public Guardian should be reappointed as UAM’s guardian.

96. The representative of the Public Guardian did not express a view as to who should be appointed as guardian.

Consideration

97. The evidence indicated to me that BYM feels a strong commitment to his parents. I also took into account that BYM is the eldest son in the family and his submission to the effect that in Greek culture an eldest son is regarded as having certain responsibilities to family and that BYM sees this as his role in relation to his parents. The importance of the preservation of UAM’s cultural and linguistic environment by the potential appointment of BYM as guardian is an important consideration in this respect: the Act, s 4(e).

98. I also had regard to the material that shows that BYM has concerns about the physical separation of his parents in different aged care facilities. This concern was shared by his brother. It was not clear on the evidence available to me that BYM was aware of the reasons for this decision by the Public Guardian or, if he was aware, whether he agreed with the reasoning based as it was on professional advice about the safety and welfare of both of his parents. Nevertheless, it demonstrates his concern for his parents’ well-being.

99. BYM has also made a number of allegations about the Public Guardian’s actions, and those of the Aged Care Facility 2, particularly concerning what he regards as the over-medication of his father. It is a duty placed on an appointed guardian to observe the principle that anyone who comes within the purview of the Act is protected from neglect, abuse or exploitation: the Act, s 4(g). Apart from BYM’s assertions however, there was nothing provided to support a finding that UAM has been neglected, abused or exploited or that the Public Guardian’s actions have created a situation in which this is likely to occur.

100. My focus, however, as required by ss 15(3) and 17(1) of the Act is to consider whether BYM is suitable to be appointed as the guardian for his father.

101. In this regard, there were a number of factors that weighed against appointing BYM as guardian.

102. I invited BYM to provide oral submissions on the matters set out in ss 17(1) and 4 of the Act and provided him with opportunities in the hearing to address me on these matters. The matters raised by BYM are summarised earlier in these Reasons for Decision. The majority of these matters were not relevant to the issues I needed to consider under s 17(1) of the Act. BYM spent much of the time available to him to focus on criticism of the Tribunal and its processes, allegations of bias and improper conduct against me and others and his intention to pursue an appeal in the NSW Supreme Court. Whilst BYM is not prohibited from raising such matters in an appropriate forum and manner consistent with the principles set out in s 36 of the CAT Act, BYM focused on these matters at the expense of providing me with information that would allow me to consider his ability to meet the criteria set out in s 17(1) of the Act. The practical outcome of this was that I was left with very little information from BYM about his ability to meet the statutory criteria. Although I took into account that UAM’s financial affairs have been managed by the NSW Trustee and Guardian since 1 August 2019, on the available evidence I was not able to be satisfied, for example, that there is no undue conflict between the interests of BYM and those of his father: the Act, s 17(1)(b).

103. What was clearly evident to me, however, was that the nature of the relationship between BYM and LZM is such that BYM would be unable to take into account in any meaningful way the importance of UAM’s relationship with his younger son if BYM were to be appointed as his guardian. The importance of the preservation of family relationships is one that an appointed guardian is required to observe: the Act, s 4(e). I was not satisfied that LZM, who continues to have an ongoing and important relationship with his parents, would be able to have input or have his views taken into account in relation to decision making on his father’s behalf. Given the importance of his family relationships particularly at this time in his life, I was not satisfied that BYM’s appointment as guardian would give paramount consideration to his welfare and interests: the Act, s 4(a).

104. As a result, while BYM is willing to exercise the functions conferred by the guardianship order, I was not satisfied that he would be able to do so in a manner consistent with the statutory duty imposed by s 4 of the Act: W v G [2003] NSWSC 1170; (2003) 59 NSWLR 220 at [25] (per Windeyer J); IR v AR [2015] NSWSC 1187 at [36] (per Lindsay J); ZKF v ZKG [2019] NSWCATAP 64 at [31]). I was therefore not satisfied that BYM met the criterion in s 17(1)(c) of the Act.

105. For the same reason, I was not satisfied that the functions under the guardianship order could be split between different guardians with BYM exercising some functions and the Public Guardian exercising other functions: the Act, s 16(3).

106. Given my conclusions in relation to ss 17(1)(b)-(c) of the Act, I did not need to arrive at a conclusion about the criterion set out in s 17(1)(a) of that Act.

107. As no other person sought to be appointed as UAM’s guardian, I appointed the Public Guardian in this role.

Length of a guardianship order

108. The Public Guardian suggested that a two-year order be made given the range of decisions that will need to be made on UAM’s behalf. None of the other parties expressed a view about this issue.

109. I decided that it is appropriate for an order to be made for two years for UAM. UAM has ongoing complex health care needs and there continues to be an issue about his long-term accommodation and a strongly held view by those participating that the possibility should be explored of UAM and NSM resuming contact. Given that there are these ongoing issues, I determined that a two-year order would be appropriate.

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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: 18 November 2021