VL v Public Guardian
[2006] NSWADT 164
•06/01/2006
CITATION: VL v Public Guardian [2006] NSWADT 164 DIVISION: General Division PARTIES: APPLICANT
VL
RESPONDENT
Public GuardianFILE NUMBER: 063021 HEARING DATES: 24/04/2006 & 9/05/2006 SUBMISSIONS CLOSED: 05/09/2006
DATE OF DECISION:
06/01/2006BEFORE: Britton A - Judicial Member CATCHWORDS: Public Guardian - place to live - Public Guardian - personal services MATTER FOR DECISION: Principal matter LEGISLATION CITED: Administrative Decisions Tribunal (Interim) Rules 1998
Administrative Decisions Tribunal Act 1997
Guardianship Act 1987
Guardianship Regulation 2005
Protected Estates Act 1983CASES CITED: GG v Minister for Community Services [2002] NSWCA 247
McDonald v Guardianship Administration Board [1993] 1 VR 521REPRESENTATION: APPLICANT
RESPONDENT
In person
C Phang, legal officerORDERS: 1.That part of the Public Guardian’s decision of 30 October 2005 relating to accommodation is affirmed ; 2.That part of the Public Guardian’s decision of 30 October 2005 relating to services is varied as follows:; i) That the Public Guardian appoint a suitably qualified independent person, who is also independent from the Brain Injury Rehabilitation Unit of Westmead Hospital, to conduct a review every six months or, more often if considered necessary by the Public Guardian, of the care and support services being provided to Mr A; 3.That the Public Guardian appoint a suitably qualified independent person, who is also independent from the Brain Injury Rehabilitation Unit of Westmead Hospital, to review and report back within eight weeks of the date of these orders on the progress of the implementation of that part of its decision of 30 October 2005 relating to services, namely:; i) That the program of services, and the services support plan, be organised by a suitable service provider, approved by the Public Guardian, who is familiar with the support needs of a young person with a brain injury and is organised in consultation with Mrs VL; ii) That the program of services to Mr A includes, where possible, access to the community and to his peers. ; iii) That the program of services to Mr A includes, where possible, an opportunity for Mr A to spend a reasonable amount of time with his father Mr VL in accordance with Mr A’s wishes. (Note: Opportunities for Mr A to have access to his father may need to be organised away from Mr A’s home.)
Section 126 of the Administrative Decisions Tribunal Act 1997 applies to this decision.
Section 126 provides
(1A) This section applies only to the following:
(a) proceedings in the Community Services Division of the Tribunal,
(b) appeals to an Appeal Panel from a decision made by the Tribunal in the Community Services Division,
(b1) proceedings in relation to an external appeal made under section 67A of the Guardianship Act 1987 or section 21A of the Protected Estates Act 1983,
(b2) proceedings in relation to a reviewable decision made under the Guardianship Act 1987 or the Protected Estates Act 1983
(c) such other proceedings (or class or classes of proceedings) as may be prescribed by the regulations for the purposes of this section.
(1) A person must not, except with the consent of the Tribunal, publish or broadcast the name of any person:
(a) who appears as a witness before the Tribunal in any proceedings, or
(b) to whom any proceedings before the Tribunal relate, or
(c) who is mentioned or otherwise involved in any proceedings before the Tribunal,
whether before or after the proceedings are disposed of.Maximum penalty: 10 penalty units or imprisonment for 12 months, or both.
(2) This section does not prohibit the publication or broadcasting of an official report of the proceedings that includes the name of any person the publication or broadcasting of which would otherwise be prohibited by this section.
(3) For the purposes of this section, a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.
REASONS FOR DECISION
1 Mr A is a 25-year-old man who suffered a severe brain injury as a result of a motor vehicle accident in 2001. He is unable to care for himself and his cognitive functions are extremely limited. On 4 May 2005, the Guardianship Tribunal appointed the Office of the Public Guardian to be Mr A’s guardian, conferring responsibility on that office for making decisions in relation to Mr A’s accommodation, health care, medical/dental consents and services.
2 In 2005, the Public Guardian decided that Mr A ought to remain in the care of his mother, Mrs VL, and gave approval for him to be accommodated in a house in Glenmore Park. At the request of Mr A’s father, Mr VL, the applicant in these proceedings, an internal review of that decision was conducted. The decision was essentially affirmed and some amendments were made.
3 Mr VL has applied to the Administrative Decisions Tribunal for a review of the Public Guardian’s decision.
Jurisdiction
4 It is not in issue that the decision by the Public Guardian, the subject of Mr VL’s application, falls within the class of decisions that are reviewable by the Tribunal: s 80A of the Guardianship Act 1987, cl 17 of the Guardianship Regulation 2005 read in conjunction with s 38 of the Administrative Decisions Tribunal Act 1997 (the Tribunal Act).
5 I am satisfied that Mr A’s father is a person whose interests could be adversely affected by the Public Guardian’s decision and accordingly determine that he has standing to bring this application (s 80A(d) of the Guardianship Act).
6 An application for external review must be lodged with the Tribunal within 28 days from the date on which the internal review was finalised: (Section 55(1)(d) of the Tribunal Act and Rule 15(3) Administrative Decisions Tribunal (Interim) Rules 1988.) Mr VL’s application was made about six weeks out of time. I have decided, however, to exercise my discretion to accept the application because, first, the delay in making the application was relatively short and, second, Mr VL has provided a reasonable explanation for the delay.
Background
7 Following his accident in 2001, Mr A was admitted to the intensive care unit at Liverpool Hospital. A month later he was transferred to the Brain Injury Unit at Westmead Hospital where he remained until his discharge in June 2003.
8 Mrs VL has been the primary carer for Mr A since that time. For about the first 12 months following discharge, paid carers assisted Mrs VL care for Mr A. Apparently Mrs VL terminated the services of those carers after about twelve months. The Guardianship Tribunal, (Reasons for Decision, 4 May 2005), cited Mrs VL’s belief that family members, were better placed to care for Mr A as the reason for that decision.
9 There has been no material change in Mr A’s condition since his discharge. His treating doctor, Dr J Gurka who has seen Mr A every two months since that time is of the opinion that:
10 In July 2004, an Apprehended Violence Order was issued against Mr VL. Among other things, the order prohibited Mr VL from being within 100 metres of Mrs VL’s place of residence. The AVO was extended in October 2005 for a period of twelve months. Mr VL told the Tribunal that he has applied to have the AVO set aside and that application will come before court in June of this year.
Mr A has ongoing severe disability as a result of the extremely traumatic brain injury sustained on the 8th April 2001. [Mr A] has both severe physical disability, cognitive and behavioural disability. He continues to require 24-hour care to maintain his general health and well-being and to take care of his daily living activities such as personal care and hygiene. From a cognitive point of view he remains in a chronic amnesic state. He has extremely poor short-term memory and extremely limited communication skills. His cognitive limitations and limitations in communication make him unable to manage his life decisions. [Mr A] can make simple choices around basic living tasks and what he might like to do with some structured time but does not have the high level capacity to make decisions around his care needs, financial management and other life affairs.
Given that it is now four years since [Mr A’s] injury his condition is unlikely to change in the future and his current status can be considered permanent (undated letter from Dr Gurka received by the Guardianship Tribunal on 23 March 2005).
11 Since the AVO was issued, Mr VL has seen Mr A on only three occasions, once in the second half of 2004; in May 2005 at the Guardianship Tribunal hearing; and, in February of this year at the funeral of a family friend.
12 In December of last year, Mr A, his mother and sister, Amy, moved to a new home in Glenmore Park. The house was purchased with the proceeds of a $4.5M insurance settlement awarded to Mr A. The Supreme Court committed Mr A’s estate to management by National Australia Trustees under the Protected Estates Act 1983.
13 The Public Guardian has been informed that Amy moved to Melbourne shortly after the move to Glenmore Park.
The decision under review
14 Original decision On 14 September 2005, a delegate of the Public Guardian, Ms Kate Horne, determined that Mr A should remain in the care of his mother with support services. She also decided that he should live in a four-bedroom Glenmore Park house selected by Mrs VL.
15 In reasons for that decision, Ms Horne wrote that she had spoken to five members of Mr A’s family-his parents, sister, Lisa and maternal grandparents; Dr Gurka; occupational therapist, Meagan Elder; Irene Nagy, a case manager with the Brain Injury Rehabilitation Unit of Westmead Hospital and Mr A himself. In reaching her decision, Ms Horne also relied on a written report prepared by Ms Elder. In that report Ms Elder concluded that, with some modifications, the Glenmore Park property was suitable for Mr A’s needs, allowing him full internal access and access to a small external courtyard.
16 Ms Horne summarised the views of those persons she had consulted. Her understanding of Mr VL’s views was as follows:
17 Ms Horne reported that, with the exception of Mr VL, all members of Mr A’s family supported the proposal that Mr A live in the Glenmore Park property and for Mrs VL to remain as his primary carer. She noted that Dr Gurka was of the opinion that Mr A had a positive response to his mother’s presence and that there was nothing to suggest abuse or to indicate that she not continue in the role of primary carer.
[Mr VL] does not support the proposal of Mrs VL continuing in the role of primary carer or the purchase of the property at Glenmore Park. He had made several unsubstantiated allegations about her person and her care of [Mr A]. [Mr VL] does not consider [Mrs VL] to be a responsible person in relation to the care of [Mr A]. He has informed the Public Guardian that he is currently the subject of an AVO taken out by Mrs VL; however he hopes to have this dismissed in the near future. [Mr VL] has informed the Public Guardian that he has not seen [Mr A] for two years due to [Mrs VL] denying his access.
18 Internal Review At the request of Mr VL, the Public Guardian conducted an internal review. That review was conducted by Patricia Davidson. Ms Davidson recommended that the original decision be affirmed subject to the following additional conditions:
19 In reasons for that decision, Ms Davidson recorded that Mr VL had alleged, among other things, that his former wife had given Mr A non-prescription sleeping pills and had assaulted him. She noted that the allegation regarding sleeping pills was unable to be corroborated but that there was some evidence to corroborate the assault allegation.
That the program of services, and the services support plan, be organised by a suitable service provider, approved by the Public Guardian, that is familiar with the support needs of a young person with a brain injury and is organised in consultation with [Mrs VL];
That these support services be in place when [Mr A] moves to his new home;
That there be an independent review of the support services being provided at six monthly intervals;
That the program of services to [Mr A] includes, where possible, access to the community and to his peers;
That the program of services to [Mr A] includes, where possible, an opportunity for [Mr A] to spend a reasonable amount of time with his father [Mr VL] in accordance with [Mr A’s] wishes. (Note: Opportunities for [Mr A] to have access to his father may need to be organised away from [Mr A’s] home.
Decision that Mrs VL Remain as Mr A’s Primary carer
The allegation of assault was investigated and some corroboration of an incident obtained from an independent witness. As to whether the incident can be regarded as an assault is not for this review to determine. It does however, alert the reviewing officer to the need for the support that [Mrs VL] provides to her son to be supplemented by additional independent service providers.
This view is reinforced when considered together with reports from the Brain Injury Unit indicating that the support needs of [Mr A] are very high and that his needs are more extensive than can be met by one person. It is also of concern to this reviewing officer that [Mr A] is apparently not being given access to a range of different people, his peers and the community. ~
It is also of concern that [Mr A] is not receiving therapy services as recommended on discharge from the Brain Injury Unit. The Public Guardian has been given the legal authority to consent or not consent to these services. [Mr A’s] long-term interest needs to be considered and addressed.
It is clear that the need for decision-making in relation to the provision of a range of support services to [Mr A] was contemplated by the Guardianship Tribunal and that this decision making authority is to be vested in the legal guardian.
Allegations made by Mr VL
20 Mr VL claims that his former wife is an unsuitable carer. He alleges that she has subjected Mr A to physical and verbal abuse; kept him cooped up in the house; isolated him from friends and paternal family members and, on occasion, left him alone for extended periods. In addition, he claims that she has used some of the money from Mr A’s compensation settlement to fund her alleged gambling and drug habits.
21 Allegation 1: Physical Abuse Mr VL has not seen his former wife physically abuse his son. He bases his allegation solely on the observations of others, namely, his brother Nick, carer Nicole Parmenter, and an unnamed male carer.
22 Mr VL does not claim to have spoken to the male carer or know his name. He claimed that he was told by Ms Parmenter that the carer had spoken to her about Mr A’s physical abuse at the hands of his mother. The male carer is said to have looked after Mr A for an unspecified period after his discharge from hospital.
23 According to Mr VL, his brother Nick, told him he had also witnessed Mrs VL’s physical abuse of Mr A but refused to give evidence in these proceedings as he did not want to get involved. It is unclear when this alleged incident is said to have occurred.
24 The only witness to give direct evidence of the alleged physical abuse was Ms Parmenter. A statement by Ms Parmenter was tendered in these proceedings. She also gave oral evidence. Ms Parmenter worked as a carer through the Rainbow Agency for about eight months after Mr A’s discharge from hospital. She said Mr A was often loud and agitated and when this happened Mrs VL would yell at him, tell him he should have died in the accident and, on occasion, hit him. Ms Parmenter gave evidence of one incident where she had witnessed Mrs VL hit and punch Mr A for about five minutes after he had become very upset and was kicking and screaming, eventually putting his foot through a pane of glass. She said it was Mrs VL’s practice to goad Mr A about his father and yell abuse at Mr VL when he visited.
25 Ms Parmenter said she was so concerned about the situation that she informed her manager who told her not to write things down as it would only inflame the situation. She said she did not know if her manager had reported her concerns to anyone. Ms Parmenter said she had no contact with Mr VL after she left her job caring for Mr A and had only been asked to give a statement when she ran him into him last year. She said she was ashamed that she had let things go as long as she had.
26 Allegation 2: Verbal Abuse Mr VL claimed that while he was living at the family home he witnessed his wife yell abuse at Mr A on a daily basis. Mr VL claimed to have lived at the family home in St Clair until about June 2004 when the first AVO was taken out. It is to be noted that this claim conflicts with Ms Parmenter’s evidence that Mr VL was an occasional visitor to the house for some of the time she was a carer.
27 Kay Henderson said she had met Mr A shortly before his accident. It was “true love”. She said for about two months after the accident she visited Mr A nearly every day. On his discharge she visited him a couple of times a month and sometimes stayed all day. She said on many occasions Mr A would just scream and Mrs VL would shout at him to stop. Ms Henderson said that Mrs VL would say to her son, “Pull your face and show me what a brain injury person would look like”.
28 Ms Henderson claimed that after Mr A’s discharge she often saw scratches and bruises on Mr A which Mrs VL told her were self-inflicted.
29 Allegation 3: Mr A left alone Mr VL alleges that he witnessed his former wife leave his son unattended for extended periods on four occasions.
30 The circumstances surrounding the first three incidents were, according to Mr VL, broadly similar. All occurred while he was still living at the family home. He claimed to have arrived home at about midnight to find his son alone. He also claimed that on all occasions Mrs VL did not come home until the early hours of the morning.
31 The fourth incident occurred, according to Mr VL, in December 2004. He claimed that he had become concerned for his son after his phone calls at around midnight went unanswered but was reluctant to go the family home alone on account of the AVO. He therefore requested friend, Joanne Hutchings, to accompany him. He said that when they arrived, Mr A was alone and appeared very agitated and uncomfortable. Ms Hutchings, who gave evidence in these proceedings, corroborated that account. She said she stayed for about ten minutes and saw no one other than Mr A at the house during that time.
32 Allegation 4: Isolation from the Community Mr VL claimed that Mrs VL kept Mr A cooped up in the house all day; refused offers by people to take him out and made his friends and members of Mr VL’s family unwelcome.
33 Ms Henderson claimed that Mrs VL made her feel unwelcome and because of this she has not seen Mr A since September 2004.
34 Ms Parmenter claimed that while she was caring for Mr A, Mrs VL repeatedly refused her offers to take him outside.
35 Allegation 5: Administering non-prescription drugs Deborah Harvey gave evidence in these proceedings that some time in 2004 Mrs VL had told her that Mr A was not sleeping well and she was not coping with being sleep deprived. Mrs VL is also reported to have said that “the doctors” refused to prescribe Mr A sleeping pills. Ms Harvey said she felt sorry for Mrs VL and undertook to obtain a script for sedatives. She said Mrs VL later told her that those sedatives were not strong enough and she was agreed to obtain a script for Valium on Mrs VL’s behalf.
36 Mr VL tendered a statement from Ms Kellie Latha who also gave oral evidence. Ms Latha testified that in early 2006 she was a party to a conversation between Mr VL and his daughter, Lisa. On her account, Lisa appeared to be very upset and had said to her father that she was sick of being left alone at home while her mother went off to the Club and the Casino; that her mother needed to get it together with Mr A and that she needed to get her life in order and intended to move to Melbourne. Ms Latha said that that Amy had confided, “Mum needs help but won’t admit it.”
Investigation Into allegations
37 In January 2006, the Public Guardian wrote to the Brain Injury Outreach Team of Westmead Hospital (the Outreach team) and asked for comments on the following allegations made by Mr A’s father, specifically that Mrs VL had:
38 By letter dated 16 February 2006, Irene Nagy, case manager with the Outreach team advised that this was the sole allegation of abuse the team had received. She advised that since her appointment as Mr A’s case manager in March 2005 she had visited him at home on four occasions and he always presented as healthy and well kept and his family were attentive to his needs. Ms Nagy wrote that she had raised these allegations with Mr A’s treating doctor who advised he had not come across anything in Mr A’s presentation to indicate abuse.
Physically abused Mr A.
Left him unclean after soiling.
Given alcohol and medication that was not prescribed to Mr A.
Left him alone for unspecified periods.
Was setting Mr A up to kill himself.
39 Ms Nagy gave evidence by phone. She told the Tribunal that she always gave Mrs VL notice of her visits. She said she last saw Mr A in April 2006. On that occasion, when she arrived at about 10 am Mrs VL was in the process of undertaking Mr A’s daily showering and toileting routine.
40 Ms Nagy claimed that when she saw Mr A he always seemed to be appropriately clothed, well cared for and there was no unexplained bruising or marking. She said he did not appear to be uncomfortable in his mother’s presence.
41 In her view, Mr A’s capacity to communicate was extremely limited and she was unsure if he could even answer yes or no. To optimise Mr A’s ability to communicate it would be necessary, in her opinion, to engage the services of a speech therapist.
42 She said that while she had seen no evidence to support the allegations of abuse, she could not rule out the possibility as she was not around all the time.
Inquiries by Public Guardian
43 The Public Guardian advised that it was not in a position to conduct an inquiry into the allegations concerning Mr A but had referred the allegations to the Brain Injury Unit which had advised that there was no evidence of abuse.
44 Ms Horne said that the only complaints received by the Public Guardian about Mr A’s care were those received from his father. She said that she visited Mr A at home on two occasions and saw no evidence of abuse. According to Ms Horne, on one of those visits she sought to ascertain Mr A’s views about the proposed Glenmore Park property. According to Ms Horne, he indicated as far as he was able to discern that he was happy to move to Glenmore Park with his mother and sister. He did this by nodding his head. Ms Horne did not have the services of a speech therapist at that visit and conceded that it was difficult to gauge Mr A’s ability to communicate. Mrs VL was present throughout the interview with Mr A.
45 Ms Horne thought that Mrs VL appeared to be very motivated to care for her son. On her visits she observed Mrs VL being attentive to his needs. She also observed that Mrs VL seemed to be able to cope with the demanding physical aspects of the job - transferring him into his bed etc. Ms Horne thought that while Mrs VL appeared to be managing well, she seemed at times to be under a great deal of stress and might benefit from respite care.
Alternative Care Options
46 According to the Public Guardian, at the time the original and subsequent internal decisions were being considered no alterative care options for Mr A had been proposed.
47 In these proceedings, Mr VL claimed he was ready, willing and able to take on the role of primary carer for his son. He conceded he had never been Mr A’s or indeed any of his 17 children’s primary carer but they all knew he was “there for them” if needed. He said that if Mr A was placed in his care he would engage the services of professional carers to assist him. He said that, unlike life with his mother, where he “sees and does nothing” he would take Mr A out into the community to visit family and friends. He proposed visiting brothels and strip shows with his son.
48 In answer to a question from the Tribunal about the equipment necessary to take Mr A on these short trips, he stated that Mr A would need his special bed, lifting machine, wheelchair and medications.
49 Evidence was given by two friends of Mr VL, Ms Latta and Rhonda Groves, that they would be prepared to assist Mr VL care for Mr A. Mrs Groves holds qualifications in nursing and has worked for over 15 years with dementia patients. Ms Latte holds a certificate from the Crowe Foundation in Behaviour Management and has worked as a carer for people with disabilities for about seven months. In addition, Ms Latte told the Tribunal that she had nursed a former partner who had suffered from a stroke.
Answer to allegations
50 The Public Guardian notified Mrs VL of these proceedings but she did not attend. Mrs VL provided the Tribunal with a 22-page letter detailing numerous allegations against her former husband. She also forwarded to the Tribunal a bundle of documents which included a number of adverse reports about her husband. It was not entirely clear why this collection of documents was relevant to the proceedings and accordingly they were not admitted.
51 In her letter to the Tribunal, Mrs VL alleged that her former husband:
52 Mrs VL refuted the allegations against her. She claimed that the allegations of physical abuse were baseless. She said she had no knowledge of any [paid] carer making a complaint about her and that the allegation came as shock to her. She claimed that “[a]ll the carers we had were quite happy being at my home and always remarked how well [Mr A] was looked after”. She claimed to be devoted to her son and intent on making his life as happy as possible. She agreed that Mr A had little contact with his friends but denied this was because she had discouraged them. She claimed that, sadly, after his accident Mr A’s friends slowly disappeared.
Visited Mr A on only four occasions during the two years he was in hospital.
Played no significant role in Mr A’s life before his accident.
Made no attempt to be involved in Mr A’s life until his compensation settlement was awarded.
Refused to assist in Mr A’s rehabilitation despite being requested by hospital therapists.
Was intent on destroying Mr A’s happiness.
Suitability of Accommodation
53 Mr VL claims that the house in Glenmore Park is unsuitable for his son - the backyard is too small, there is no outlook, the driveway is too steep and wheelchair access is difficult. He contends that a more suitable option would be for Mr A to live in the country with a river running through the backyard and wildlife to observe.
54 Contrary to her former husband’s views, Mrs VL believes the house is perfectly suited to Mr A’s needs. She asserted that the house could not have been more ideal if it was custom built for a person in a wheel chair. She pointed out that Mr A has a spacious bedroom with a large ensuite and walk-in wardrobe and that the entire house is wheelchair accessible with easy access to the garage and backyard.
55 As noted, a detailed assessment of the property was carried out by Occupational Therapist, Ms Eagen, who concluded that with some modest alternations the property was ideal for Mr A.
Mr A’s wishes
56 Mr VL submitted that Mr A should attend the proceedings so that he could have a say. He indicated that if his former wife refused to bring him he would be happy to arrange transport for his son or, failing that, the police should be called. I explained to Mr VL that in the circumstances of the case I considered it inappropriate for Mr A to be directed to attend these proceedings.
57 On the final day of hearing, I indicated to the parties that I would give consideration to appointing a Guardian ad litem to meet with Mr A to attempt to ascertain his wishes. Having given the application serious consideration, I have decided not to appoint a Guardian ad litem or interview Mr A. The reasons for that decision include Mr A’s limited capacity to communicate and the possibility that putting the allegations to him about his mother could cause significant distress to both Mr A and his mother.
Findings and Conclusions
58 In conducting this review, the Tribunal ‘stands in the shoes’ of the administrator, the Public Guardian and makes the ‘correct and preferable’ decision having regard to all relevant material (Tribunal Act, s 63), including any material that postdates the decision under review (See YG & GG v Minister for Community Services [2002] NSWCA 247 at [25].) The review is to be conducted “without any presumption as to the correctness of the decision”: McDonald v Guardianship Administration Board [1993] 1 VR 521 at 530 (SupCtVic, Appeal Div).
59 In making its decision, the Tribunal is instructed to observe the principles enunciated in s 4 of the Guardianship Act. These include the need to give paramount consideration to Mr A’s welfare and interests; the importance of preserving Mr A’s family relationships; and the need to protect him from neglect, abuse and exploitation.
60 As acknowledged by Mr VL, his primary complaint with the decisions under review is that his son remains in the care of his former wife. He takes no issue and indeed claims to welcome the amended decision made on 30 October 2005 which put in place additional support services for his son. Nor, as I understand it, is his key concern Mr A’s accommodation arrangements although he remains firmly of the view that his son would be happier in a rural setting.
61 In the circumstances of this case, it is impossible to separate the allegations surrounding Mrs VL from the key issue to be determined - that is, whether it is in Mr A’s best interests to remain in the care of his mother.
62 Taken at its highest, the evidence on which Mr VL relies indicates that up until mid 2004 Mrs VL on occasion subjected her son to physical abuse; regularly spoke to him in a harsh and demeaning fashion and on four occasions left him unattended for significant periods of time. There is no evidence that this mistreatment continued after Mr VL’s departure from the family home in July 2004.
63 The reliability of this evidence is in issue. Mrs VL has repeatedly contended that she is a committed and attentive carer. There is nothing in the inquiries made by Ms Horne to suggest that Mr A’s maternal grandparents or sister endorse Mr VL’s claims. It is powerful evidence that the sole professional to have seen Mr A regularly since discharge, Dr Gurka, not only believes there is no evidence of abuse but believes that Mrs VL is attentive to her son’s needs and that he responds appropriately to her. While Ms Horne and Ms Nagy have had less regular contact with Mr A, neither has seen any evidence of inappropriate treatment.
64 Against this there is the direct evidence of physical abuse given by carer Nicole Parmenter. The evidence adverse to Mrs VL could not be described as overwhelming. However, it is not possible to exclude the possibility that, at least up to the time Mr VL left the family home, Mrs VL on occasion physically and verbally abused her son. Two others witnessed verbal abuse.
65 Ms Parmenter’s evidence is the most disturbing. She appeared to be a witness of truth. Her evidence was measured and considered. There is no evidence that she was anything but an independent witness whose truthfulness and reliability could not be substantially challenged. That there is some cogent and plausible evidence that Mr A’s mother occasionally lost her temper with Mr A and subjected him to physical maltreatment makes the Tribunal’s task a difficult one.
66 It is with some anxiety that I conclude that the original decision be affirmed. Mr VL’s claims that he could and would provide a better alternative are wildly optimistic and unrealistic. His vision of Mr A being able to enjoy a country setting punctated by visits to brothels and shooting trips was an illuminating demonstration of his almost complete lack of comprehension of his son’s day to day physical requirements and the extent of his disability.
67 Having ruled out Mr VL as a suitable carer, the Tribunal is driven back to the alternatives of removing Mr A from his mother’s allegedly imperfect care or of having him placed in institutional care of one sort or another. It is evident that Mrs VL has not always received the support she requires to do the Herculean job imposed on her. It is commonsense that the job of a full-time carer is extremely stressful and that there are relentless demands placed upon him or her. There is evidence strongly suggesting that although she may have fallen short of the ideal standards of a carer, Mrs VL loves her son and deeply cares for him. Importantly, there is no evidence of any abuse since mid-2004 and the best evidence is that the mistreatment was occasional and not systematic. With appropriate support and respite, I consider that Mrs VL provides the best of the available alternatives. A regular review of the care services provided to Mr A is however desirable in these circumstances.
68 In my view, the Public Guardian correctly decided on review to put in place additional support services for Mr A and for these services to be independently reviewed every six months.
69 A disturbing matter revealed in this review is the history of delay in the introduction of support services for Mr A. As the Guardianship Tribunal noted in its decision handed down two years after Mr A left hospital, that part of the Discharge Plan relating to the provision of physiotherapy, speech pathologist, dietician and psychologist services had not been implemented. In her reasons for decision dated 30 October 2005, Ms Davidson noted with concern that those services had still not been put in place and gave the date of the move to Glenmore Park, December 2005, as the deadline for their introduction. She also gently pointed out that the Public Guardian was charged with the responsibility for making decisions about the support services to be provided to Mr A. Some six months after that move the support services are still to be introduced although, as the letter from Ms Nagy to the Public Guardian of 10 April 2006 and her evidence to this Tribunal indicates, some progress seems to have been made. Mrs Nagy was optimistic that the arrangements to secure the additional support services would be in place sometime in the next two months.
70 It is unclear to me what lies behind this four-year delay. It may be that the explanation lies in the many calls on the resources of the Brain Injury Unit Outreach Team or because opinion is divided among those charged with the care of Mr A on whether some or all the full range of support services recommended under the Discharge Plan continue to be necessary. Whatever the reason, it goes without saying that any further delay cannot be tolerated.
71 Given these concerns I have decided to vary the Public Guardian’s decision of 30 October 2005 to ensure that the progress in respect to the implementation of these services is carefully monitored. I have decided that a suitably qualified independent person should be appointed by the Public Guardian to review the progress of the implementation of that part of the reviewable decision relating to services and report back to the Public Guardian within eight weeks of the date of these orders.
72 I see no reason to disturb that part of the decision relating to Mr A’s accommodation.
Orders
1. That part of the Public Guardian’s decision of 30 October 2005 relating to accommodation is affirmed.
2. That part of the Public Guardian’s decision of 30 October 2005 relating to services is varied as follows:
3. That the Public Guardian appoint a suitably qualified independent person, who is also independent from the Brain Injury Rehabilitation Unit of Westmead Hospital, to review and report back within eight weeks of the date of these orders on the progress of the implementation of that part of its decision of 30 October 2005 relating to services, namely:
i) That the Public Guardian appoint a suitably qualified independent person, who is also independent from the Brain Injury Rehabilitation Unit of Westmead Hospital, to conduct a review every six months or, more often if considered necessary by the Public Guardian, of the care and support services being provided to Mr A.
i) That the program of services, and the services support plan, be organised by a suitable service provider, approved by the Public Guardian, who is familiar with the support needs of a young person with a brain injury and is organised in consultation with Mrs VL.
ii) That the program of services to Mr A includes, where possible, access to the community and to his peers.
iii) That the program of services to Mr A includes, where possible, an opportunity for Mr A to spend a reasonable amount of time with his father Mr VL in accordance with Mr A’s wishes. (Note: Opportunities for Mr A to have access to his father may need to be organised away from Mr A’s home.)
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