Rothera v Rothera
[2018] NZHC 375
•9 March 2018
NOTE: PURSUANT TO S 80 OF THE PROTECTION OF PERSONAL AND PROPERTY RIGHTS ACT 1988, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B, 11C AND 11D OF THE FAMILY COURT ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE
https://www.justice.govt.nz/family/about/restriction-on-publishing-judgments/ THIS IS AN ANONYMISED VERSION OF THE JUDGMENT AND MAY BE PUBLISHED IN THIS FORM.
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV 2017-404-2126
[2018] NZHC 375
BETWEEN BRUCE CHARLES ROTHERA
Appellant
AND
ADELAIDE ANNE ROTHERA
Respondent
Hearing: 13 February 2018 Appearances:
G J Thwaite for Appellant A Gluestein for Respondent
R von Keisenberg, to assist the Court
Judgment:
9 March 2018
JUDGMENT OF VAN BOHEMEN J
This judgment was delivered by me on 9 March 2018 at 3.00pm pursuant to Rule
11.5 of the High Court Rules.
Registrar/Deputy Registrar
Solicitors:
G J Thwaite, Auckland Spencer Legal, Auckland Counsel:
A Gluestein, Auckland
R von Keisenberg, Auckland
ROTHERA v ROTHERA [2018] NZHC 375 [9 March 2018]
Introduction
[1] Bruce Rothera appeals a decision of the Family Court making a final order under s 8 of the Protection of Personal and Property Rights Act 1988 (PPPR Act) providing care arrangements for his wife, Adelaide Rothera, who suffers from dementia. Mr Rothera asserts that conditions imposed by the Family Court judge are too restrictive and need to be amended or removed.
[2] The essence of Mr Rothera’s complaint with the Family Court’s decision is that the order does not allow Mr Rothera to play a sufficiently influential role in decisions about Mrs Rothera’s care and gives too much control to the Welfare Guardian appointed for Mrs Rothera under s 12 of the PPPR Act. Underlying that complaint is a fear that Mrs Rothera may be placed in a residential care facility without Mr Rothera’s consent and a breakdown in the relationship between Mr Rothera and the Welfare Guardian.
[3] Mr Rothera’s appeal is opposed by the Welfare Guardian, by counsel for Mrs Rothera appointed by the Family Court and by the two adult daughters of Mr and Mrs Rothera.
Background
[4] Mrs Rothera is 79 years of age. She and Mr Rothera have been married since November 1959. They have three children: two daughters, Janet Signy, Barbara Halley, and one son, Anthony Rothera.
[5] In 2012, Mrs Rothera was diagnosed as having a gradual decline in cognitive function.
[6] On 14 March 2013, Mrs Rothera signed enduring powers of attorney giving Ms Signy, as attorney, and Ms Halley, as successor attorney, power to make decisions regarding Mrs Rothera’s care and welfare on the one hand and property on the other. Ms Signy and Ms Halley say that their mother, who had seen her own parents succumb to Alzheimer’s Disease, made a deliberate decision to entrust her future care arrangements to her daughters.
[7] In 2015 Mrs Rothera was diagnosed as having advanced Alzheimer’s Dementia with behavioural difficulties. Her condition has continued to deteriorate with a consequential need for increasing levels of care.
[8] On 12 July 2015, Mrs Rothera was referred to Mental Health Services for Older People (MHSOP) at the Counties Manukau District Health Board (CMDHB) for urgent review because her advancing dementia was such that she could become aggressive and was wandering during the day. On 10 August 2015, with Mr Rothera’s reluctant agreement, Mrs Rothera was admitted to the CMDHB’s Middlemore Hospital for assessment and treatment.
[9] Mr Rothera had understood that Mrs Rothera would be at Middlemore Hospital for a short time for assessment and then at the Bruce McLaren Village for two weeks’ respite care,1 after which she would return to their family home. However, following discussions involving the Rothera children and hospital staff, as well as Mr Rothera but without his agreement, the decision was taken to admit Mrs Rothera to a secure residential facility for longer term care. That decision was taken by the clinical team at MHSOP and the Rothera children, in particular Ms Signy, who held the enduring power of attorney in respect of Mrs Rothera’s care and welfare.
[10] On 2 September 2015, Mrs Rothera was admitted to St Andrew’s Village, a residential care facility in Glendowie. This was very distressing for Mr Rothera.
[11] On 3 December 2015, Mr Rothera filed a proceeding in the Family Court seeking orders to revoke the enduring power of attorney held by Ms Signy with respect to Mrs Rothera’s care and welfare and to appoint himself as Mrs Rothera’s Welfare Guardian. On the same date, Mr Rothera applied for interim personal orders under ss 10 and 14 of the PPPR Act that would, among other thing give Dr Jane Casey, a consultant psychiatrist, a role in assessing Mrs Rothera’s condition and give Mr Rothera greater rights of access to Mrs Rothera at St Andrew’s.
1 Respite care in this context is short term care provided to Mrs Rothera by an external agency to enable Mr Rothera respite from the demands of being Mrs Rothera’s caregiver.
[12] Mr Rothera and a number of others, including Anthony Rothera and Mrs Rothera’s sister, Claire Christine Gavin, swore affidavits in support of Mr Rothera’s application. Ms Signy and Ms Halley swore affidavits in opposition.
[13] The affidavits show Mr Rothera on the one hand and Ms Signy and Ms Halley on the other had strongly divergent views on the appropriate care arrangements for Mrs Rothera. Mr Rothera considered that Mrs Rothera had gone into a depression and that her condition had deteriorated after her admission to St Andrew’s. He was also appalled at conditions in the hospital and the behaviour of other patients and said he was ready to meet the costs necessary to make the family home safe and secure for Mrs Rothera’s return. Ms Signy said her father had never accepted the reality of Mrs Rothera’s condition which required 24-hour care in a specialised facility such as St Andrew’s and that was the unanimous medical advice. She also expressed concern that Mr Rothera was not abiding with protocols she had established for visits to Mrs Rothera and had been aggressive and threatening with staff.
[14] Mr Rothera’s behaviour at St Andrew’s, particularly his overstaying the established time for visits and his attitude to St Andrew’s staff, was such that on 6 July 2016, Andrew Joyce, the Chief Executive Officer of St Andrew’s Village, wrote to counsel for Mr Rothera giving a “final warning” and saying any further episodes of such behaviour would result in Mr Rothera being prevented from coming onto the site.
[15] On 2 September 2016, Mr Joyce wrote to Ms Signy advising that because of continued failure by Mr Rothera to comply with the protocols for visits to Mrs Rothera, St Andrew’s had decided to terminate Mrs Rothera’s residency at the Village. The letter gave two months’ notice of termination of Mrs Rothera’s admission agreement. This meant that, absent a change of heart by St Andrew’s, new residential arrangements for Mrs Rothera had to be found by 2 November 2016.
[16] Mr Rothera’s proceeding had been set down for a five-day fixture commencing 31 October 2016. However, on 22 and 23 September 2016, a mediation was held involving Mr Rothera and the three Rothera children. It resulted in a Mediation Agreement dated 23 September 2016 under which it was agreed Mrs Rothera would
return to the family home, subject to care arrangements and other matters specified in the Agreement.
[17] Following the mediation, on 26 September 2016 the Family Court made, by consent:
(a)Interim personal orders giving effect to various aspects of the Mediation Agreement concerning, in particular, the 24/7 care arrangements for Mrs Rothera that were to be provided by an external nursing agency; and
(b)Orders terminating the enduring powers of attorney held by Ms Signy and appointing Mr Michael Lockroy both Welfare Guardian and Property Manager for Mrs Rothera.
[18] Mrs Rothera returned to the family home in late October 2016. Initial reports to the Family Court by Dr Casey and Mr Lockroy, and also by Ms Robyn von Keisenberg who had been appointed counsel for Mrs Rothera, were generally positive about Mrs Rothera’s condition. However, the reports also noted concerns about aspects of Mr Rothera’s care of Mrs Rothera, his attitude to caregivers and medical experts, and his general need to be in control of arrangements for Mrs Rothera’s care.
[19] On 16 January 2017, Ms von Keisenberg sought an urgent hearing of the Family Court after learning that Mr Rothera had refused to pay outstanding accounts due to the nursing agency, Dr Casey, and Mr Lockroy and had purported to “fire” Mr Lockroy.
[20] After a judicial conference on 22 February 2017, Judge Fleming extended the personal interim orders for a further six months – that is, until 22 August 2017 – to allow further time to assess matters. Judge Fleming also directed that a second opinion be obtained as recommended by Dr Casey.
[21] Dr Fisher of MHSOP produced the requested second opinion in a report dated 5 May 2017. The report said Mrs Rothera was relatively settled but her dementia had
progressed. Dr Fisher considered Mrs Rothera’s care needs were not excessive and were not vastly different from other dementia sufferers who lived at home with much lighter care packages. He noted the concerns that others had about Mr Rothera’s care of Mrs Rothera but said he did not believe Mr Rothera would intentionally harm Mrs Rothera, even if Mr Rothera could be clumsy and rough. Dr Fisher considered Mrs Rothera’s current care package was “excessive” and appeared driven by concerns of that Mr Rothera might pose a risk to Mrs Rothera.
[22] Dr Casey produced further reports dated 15 May 2017, 19 June 2017 and 22 July 2017.
[23] In her report of 15 May 2017, Dr Casey recorded that the nursing agency providing 24/7 care to Mrs Rothera had given notice of its intention to withdraw care. The agency had given 12 reasons, all related to the behaviour of Mr Rothera, for its decision to withdraw. Dr Casey noted this was a crisis situation and that if a package of care could not be organised there would be no option but for Mrs Rothera to return to permanent residential care.
[24] In her report of 19 June 2017, Dr Casey described the difficulties she had encountered in trying to carry out her responsibilities under the interim personal orders. She stated:
12. Due to the obstructions and impasse in this family, I am in an untenable position. I am unable to fulfil my clinical and professional role in my obligation to the patient, [Mrs Rothera]. I am unable to fulfil my obligations to the Court.
[25] Dr Casey went on to say that upon review of the personal order, she wished to withdraw from on-going engagement in the case.
[26] Dr Casey’s last report, dated 22 July 2017, was based on reports from a registered nurse and the caregivers who had been caring for Mrs Rothera. In that report, Dr Casey noted continuing complications in the care arrangements for Mrs Rothera, including non-payment of invoices and unreasonable requests of the caregivers by Mr Rothera, and concluded that the common thread of the difficulties encountered had been Mr Rothera’s refusal to accept the advice of professionals or to
accept the expense of the cost of the at home-care on which he insisted and which Dr Casey considered to be of “psychological salience” to Mr Rothera but not to Mrs Rothera.
[27] Dr Casey also referred to the possibility of a live-in boarder to reduce costs and said:
12.… I am now uncertain of the viability and safety of such an arrangement. I would have concerns for any person who is not accountable to an agency, a Welfare Guardian or to the Court being exposed to the dynamics and behaviour of this home.
13.In my opinion, if care at home should be the on-going direction there needs to be continued external oversight of [Mrs Rothera] on a 24/7 basis. This opinion has been crystallised by the accumulating evidence of [Mr Rothera] being unable to work constructively in [Mrs Rothera]’s best interest.
[28] Dr Casey reiterated her decision to withdraw from the case, noting that her forthcoming sabbatical leave was also relevant to that decision.
The Family Court hearing
[29] On 26 July 2017, the Family Court hearing of the application for final personal orders for Mrs Rothera commenced before Judge Druce. Dr Casey and Dr Fisher gave evidence, as did Mr Rothera, Ms Signy and Anthony Rothera. After a day of evidence, with cross examination by counsel for Mrs Rothera, Mr Rothera and the Welfare Guardian, and also by Ms Halley, and after active questioning of the witnesses from Judge Druce, Judge Druce asked Ms von Keisenberg to work towards presenting a draft personal order, whether by consent or otherwise.
The Family Court decision
[30] On 17 August 2017, the Family Court hearing reconvened. As recorded in his Minute of the same date,2 Judge Druce considered the draft final personal orders that Ms von Keisenberg had prepared in consultation with the counsel for MHSOP’s Community Team. All other parties to the proceeding, except Mr Rothera, consented to the orders. Mr Rothera did not wish to be heard on the orders but said he would
2 Rothera v Rothera FC Auckland FAM-2015-4-1144, 17 August 2017.
abide the Court’s decision. Judge Druce made the personal orders in Ms von Keisenberg’s draft, subject to amendments that the Judge directed.
[31] The personal orders provide that Mrs Rothera should continue to reside in the family home on the conditions specified in the orders. Many of those conditions place responsibilities on Mrs Rothera’s Welfare Guardian and, by necessary inference, on Mr Rothera to ensure those conditions can be complied with. Specifically, the Welfare Guardian is required to:
(a)Visit Mrs Rothera at the family home at least once a month;
(b)Consult the MHSOP Community Team and Mrs Rothera’s general practitioner to evaluate Mrs Rothera’s care and needs including whether she requires respite care or full time residential care;
(c)Have caregivers from an approved and certified agency provide 24/7 care for Mrs Rothera on a shift by shift basis, with the added stipulation that the caregivers may not reside at the family home.
[32]In addition, under the personal orders, the Welfare Guardian:
(a)Has the sole authority to change Mrs Rothera’s general practitioner;
(b)Is empowered to initiate respite care for Mrs Rothera in consultation with the clinical team at CMDHB and to impose conditions on visits by third parties;
(c)Request a review on Mrs Rothera’s safety at her home, with “safety” being defined to include whether Mrs Rothera’s caregivers are subject to undue interference from Mr Rothera, including verbal or emotional abuse.
[33] The personal orders also authorise the Welfare Guardian to place Mrs Rothera in an identified residential care facility if Mrs Rothera’s designated psycho-geriatrician finds Mrs Rothera can no longer be cared for safely at home and a suitable residential
care facility is available. In these circumstances, Mr Rothera is to be advised of the decision by the Welfare Guardian who is also authorised to use reasonable force, including by the police, to transport Mrs Rothera to the residential care facility if Mr Rothera refuses to cooperate.
[34]In making the orders, Judge Druce expressed the rationale behind the orders:3
[6] I am satisfied that the draft orders provide an outcome which is in [Mrs Rothera’s] best interests. The orders support her care continuing to be managed in her home (which all the psycho-geriatricians agreed on) for as long as this can be practically and safely managed. It involves a minimum of intervention in [Mrs Rothera’s] life, this being one of the guiding principles in the Act.
[7] However, it is plain from the evidence I have heard that the high level of caregiver support that is required has been a point of failure on more than one occasion. There are aspects to Mr Rothera’s personality, coupled with his sense of loss of control in his own household, which have made it really difficult for him to work cooperatively with the medical and care-giving services and with his daughters. This has caused family members a lot of grief on all sides. Mr and Mrs Rothera’s son has felt obliged to support his dad in an emotional sense, but has otherwise not taken a position. The two daughters have worked long and hard to carry out an obligation they felt they accepted from their mother years ago when she appointed them under enduring powers of attorney.
[8] There is a great desire by everyone to be done with Court proceedings, and the expense of such litigation.
[9] I am not going to go into great detail about the evidence but it is plain that the professionals have worked extremely hard to make home based care a success. But at the same time there are core levels of safety for [Mrs Rothera] that will require ongoing high levels of support.
[10] [Mrs Rothera] is moving from a moderate level of Alzheimer’s disability to the severer end of the continuum. Her physical behaviour is now less agitated, she is more settled, and to that extent is more easily managed in the home setting. The professional advice is that she will however require a higher level of physical care over the remainder of her life. The current care is highly expensive. This is a cause of grief to Mr Rothera who would wish that things could be done more cheaply. But there is unequivocal evidence from the psycho-geriatricians that this level of support is required. The family have come down a long road to this point, and there is no point in going back through those issues.
[35]On 14 September 2017, Mr Rothera lodged the present appeal.
3 Rothera v Rothera FC Auckland FAM-2015-4-1144, 17 August 2017.
Appeal by Mr Rothera
[36] Mr Rothera’s notice of appeal cast a wide net, asserting variously, among other grounds, that the personal orders:
(a)Were not the least restrictive intervention possible in the life of Mrs Rothera and were more than was required in the circumstances as well as being unnecessarily expensive;
(b)Were based on an erroneous understanding of the level of Mrs Rothera’s dementia and capacity;
(c)Infringed on Mrs Rothera’s rights under ss 9 and 11 of the New Zealand Bill of Rights Act 1990 (NZBORA) not to be subjected to degrading treatment and to refuse medical treatment;
(d)Were invalid for vagueness, particularly with regard to the term “respite care”, while at the same time asserting that respite care was likely to be determinantal to Mrs Rothera’s ability to remain at home;
(e)Should have required consultation with Mr Rothera and other members of the Rothera family;
(f)Infringed Mr Rothera’s right to privacy in own home and his right to freedom of expression under s 14 of NZBORA.
[37] The contentions regarding NZBORA, privacy and vagueness were not pursued in argument. In submissions, Mr Thwaite for Mr Rothera said that Judge Druce had:
(a)Failed to take into account the evidence of Dr Fisher that the current care arrangements for Mrs Rothera were excessive and that adequate night time care could be provided by a live-in carer; and
(b)Relied on irrelevant considerations, namely, erroneous evidence about the level of support required for Mrs Rothera, having regard to her condition.
[38] Mr Thwaite also submitted that the Court should rule on the validity of the enduring power of attorney in respect of Mrs Rothera’s care and welfare that had been granted in favour of Ms Signy in 2013.
[39]The particular aspects of the orders to which Mr Rothera objected were:
(a)The requirement that all caregivers had to come from an approved and certified agency and must not live in the family home;
(b)The powers conferred on Mrs Rothera’s Welfare Guardian to decide, without explicit reference to Mr Rothera:
(i)Whether Mrs Rothera should be put into respite care;
(ii)Whether Mrs Rothera should be put into residential care;
(iii)Whether the general practitioner for Mrs Rothera should be changed;
(iv)When and how the Welfare Guardian can visit Mrs Rothera.
(c)The authority given to the Welfare Guardian to use reasonable force, including the police, to transport Mrs Rothera to a residential care facility if Mr Rothera failed to cooperate by obstructing or impeding Mrs Rothera’s departure.
[40] Mr Thwaite proposed specific amendments and deletions to the personal orders to address those objections. Mr Thwaite referred to further reports prepared by Dr Fisher after the orders had been made in which Dr Fisher had said that he did not believe Mrs Rothera required a carer to be present from 9.30 pm to 8.30 am and that other arrangements could be made to ensure help could be summonsed if required. Mr
Thwaite also referred to a report from Alison Foster-Plummer, a Registered Nurse at MHSOP. These reports post-dated the Family Court decision so were, of course, not in evidence before that Court.
Nature of appeal
[41] Pursuant to ss 83 and 84 of the PPPR Act and ss 127-128 of the District Court Act 2016, an appeal of the Family Court’s order is by way of re-hearing and this Court has the power to make any decision it thinks should have been made or may direct the Family Court to reconsider the matter.
[42] It was common ground that the appeal is a general appeal on fact and law of the kind referred to by the Supreme Court in Austin, Nichols & Co Ltd v Stichting Lodestar.4 Accordingly, Mr Rothera bears the onus of satisfying the Court that it should differ from the decision under appeal, but the extent of the consideration given to the Family Court decision is a matter for this Court’s judgment, and this Court has the responsibility of arriving at its own assessment of the merits of the case.5 As the Supreme Court also said in that judgment:
[16] Those exercising general rights of appeal are entitled to judgment in accordance with the opinion of the appellate court, even where that opinion is an assessment of fact and degree and entails a value judgment. If the appellate court’s opinion is different from the conclusion of the tribunal appealed from, then the decision under appeal is wrong in the only sense that matters, even if it was a conclusion on which minds might reasonably differ.6
[43] It follows that in a general appeal such as this, it is unnecessary for the Court to limit its focus to questions such as whether the Court below failed to take account of relevant considerations or took account of irrelevant considerations. The question for this Court is whether the Family Court erred in some material respect when making the personal orders.
4 Austin, Nichols & Co Ltd v Stichting Lodestar [2007] NZSC 103; 2 NZLR [2008] 141.
5 Austin, Nichols & Co Ltd v Stichting Lodestar [2007] NZSC 103; 2 NZLR [2008] 141 at [4] and [5].
6 Austin, Nichols & Co Ltd v Stichting Lodestar [2007] NZSC 103; 2 NZLR [2008] 141 at [16].
[44] In assessing that question, I have had regard to the evidence before the Family Court, including the notes of evidence of the full day of hearing, Judge Druce’s Minute recording the personal orders made and the orders themselves.
Preliminary matters
[45] It is convenient first to address two matters raised by Mr Thwaite which were not before the Family Court. One is the mental capacity of Mrs Rothera and the level of her dementia. The second is the validity of the enduring power of attorney with respect to Mrs Rothera’s care and welfare made in favour of Ms Signy in March 2013.
[46] Mr Thwaite argued that there was some inconsistency of terminology in the experts’ reports into Mrs Rothera’s condition, with some referring to Mrs Rothera having “moderate to severe” dementia, others referring to her having “advanced dementia” and others only to “moderate dementia”. Mr Thwaite said the Court should accept Mrs Rothera has only “moderate dementia” being the term used by Dr Fisher in his report of 28 December 2017. One of the general grounds for Mr Rothera’s appeal was that the personal orders did not recognise the partial capacity of Mrs Rothera to understand the nature, and to foresee the consequences of decisions in respect of her personal care and welfare.
[47] I do not accept that submission. First, as Ms von Keisenberg noted in her submissions, there was no dispute among the psycho-geriatricians that Mrs Rothera lacked the capacity with respect to making decisions about her care arrangements – a point made explicitly by Dr Fisher in his report of 5 May 2017 so there was no issue to decide. Moreover, when the Family Court made its order appointing Mr Allan as Mrs Rothera’s Welfare Guardian on 26 September 2016, it could only have done so if it had been satisfied, in accordance with s 12(2) of the PPPR Act that:
(a)[Mrs Rothera] wholly lacks the capacity to make or to communicate decisions related to any particular aspect or particular aspects of [her] personal care and welfare; and
(b)That the appointment of a welfare guardian is the only satisfactory way to ensure that appropriate decisions are made relating to that particular aspect or particular aspects of [Mrs Rothera’s] personal care and welfare.
The decision about Mrs Rothera’s capacity had already been made.
[48] With respect to Mr Thwaite’s second preliminary argument, the enduring power of attorney in favour of Ms Signy for Mrs Rothera’s care and welfare was revoked by the Family Court when the Court appointed Mr Lockroy as Mrs Rothera’s Welfare Guardian. It was not, therefore, before the Family Court when it made the decision under appeal.
Main contentions of Mr Rothera
[49] Mr Thwaite’s primary argument, by reference to the relief sought, was that the Family Court was wrong when it included in the final personal orders:
(a)The requirement that all caregivers had to come from an approved and certified agency and must not live in the family home;
(b)The powers conferred on Mrs Rothera’s Welfare Guardian to decide, without explicit reference to Mr Rothera:
(i)Whether Mrs Rothera should be put into respite care;
(ii)Whether Mrs Rothera should be put into residential care;
(iii)Whether the general practitioner for Mrs Rothera should be changed;
(iv)When the Welfare Guardian could visit Mrs Rothera;
(c)The authority given to the Welfare Guardian to use reasonable force, including the police, to transport Mrs Rothera to a residential care facility if Mr Rothera failed to cooperate by obstructing or impeding Mrs Rothera’s departure.
[50] The questions, therefore, for this Court are whether the Family Court erred in providing for those specifications in the personal orders, having regard to the evidence
before it and whether, if the Family Court did err, this Court should make the changes proposed by Mr Thwaite on Mr Rothera’s behalf.
The agency-provided care arrangements
[51] In his memorandum as to relief dated 12 February 2018, Mr Thwaite sought changes that would have seen:
(a)An alarm installed and the night shift discontinued; and
(b)The external care agency replaced by two-shifts of day-care teams engaged directly and paid by Mr Rothera, with the carers to be people who had experience in providing care to Mrs Rothera or had been engaged with the approval of Ms Foster-Plummer or had been agreed as suitable by Mr Rothera and Ms Signy and Ms Halley.
[52] In argument, however, Mr Thwaite said Mr Rothera was not proceeding with the proposal to discontinue the night shift. My understanding was that the revised proposal was that a night-care shift would be engaged on the same basis as proposed for the day shift, with the prohibition on live-in care removed.
[53] The expert evidence from Dr Fisher and Dr Casey was that Mrs Rothera required qualified care and attention, at least during the daytime hours. They also referred to the problems that had arisen over Mr Rothera’s treatment of caregivers and withholding of payments, and both agreed Mr Rothera should have no role in directing or paying for the care arrangements.
[54] The inclusion of a requirement that the caregivers, at least during the day, should come from an approved external agency accords fully with this evidence. Moreover, Mr Rothera in his own evidence to the Family Court agreed he was happy with the day-care arrangements, leaving aside the issue of cost. Accordingly, the day- care arrangements in the personal orders cannot be said to have been wrong and I see no basis for changing them.
[55] It is apparent from the notes of evidence that the option of a live-in carer to provide night-time cover was considered by the Judge, despite Mr Thwaite’s submission that the Family Court did not adequately consider this aspect of Dr Fisher’s evidence. The question was not whether such an arrangement was workable from Mrs Rothera’s perspective but whether Mr Rothera would allow it to work effectively.
[56] In her evidence, Dr Casey said, in effect, that any person who was employed by or under Mr Rothera’s responsibility would be under Mr Rothera’s control and would not be able to communicate effectively with the Welfare Guardian or the Rothera daughters. Dr Fisher said that, with his optimistic hat on, he thought an acceptable arrangement for a live-in carer could be worked out at an acceptable level of risk for Mrs Rothera. However, with his pessimistic hat on, he considered that Mr Rothera had been “incapable of working with any arrangement or any of the parties”. Dr Fisher’s later reports of 6 November 2017, 1 December 2017 and 28 December 2017 did not alter that part of his assessment. Ms Halley and Ms Signy were opposed to live-in carers because of their father’s age, health conditions, inability to manage in the event of an incident, his manner of dealing with Mrs Rothera and his insistence on doing things his own way.
[57] In the light of that evidence, I do not accept the Family Court was wrong in excluding live-in night time care. If the parties concerned had been able to cooperate, such an arrangement might well have been preferable, provided issues around engagement and payment could be resolved. But with the family so divided, and with Mr Rothera apparently unable to adhere to arrangements made, it is understandable that the Family Court did not go down this track. Accordingly, I do not consider the Family Court erred in this respect. The subsequent reports of Dr Fisher and Ms Foster- Plummer, who also said a night-time carer was not needed, do not change this conclusion.
Mr Rothera’s right to be involved in decisions on respite and residential care for Mrs Rothera
[58] It is convenient to take together the issues of referral to respite care and referral to residential care. The two concepts of care are very different – respite care being by its nature for a limited period, while residential care can be indefinite – but
were closely connected in Mr Rothera’s evidence and in Mr Thwaite’s submissions because of Mr Rothera’s view that respite care would lead to residential care.
[59] It is apparent that Mr Rothera has viewed respite care with considerable suspicion. He has asserted he was tricked into allowing Mrs Rothera to be admitted into Middlemore Hospital in August 2015 by what he termed “a ruse” and that led to Mrs Rothera being placed in residential care in St Andrew’s because of her severe depression at being away from home. He has seen any proposal for respite care in that light – either as another trick to take Mrs Rothera away from him or as having that result because she would fall into depression and would therefore need residential care.
[60] Having reviewed the evidence available to me, I am satisfied Mr Rothera is wrong in the suspicions he holds about the motives of those who were caring for Mrs Rothera in 2015 and those who are caring for her now. Sadly, he lacks the understanding that medical professionals and his own family have been motivated by genuine concern for Mrs Rothera’s wellbeing. That Mr Rothera is unable to accept that reality also has a bearing on the appropriateness of the relief he seeks where he has tried to re-insert himself in key decisions regarding Mrs Rothera’s care.
[61] Respite care was provided for in the interim personal orders of 26 September 2016 and recommended in the reports of Dr Casey and Dr Fisher. It is again provided for in the final personal orders made by Judge Druce. As explained in the evidence of Drs Casey and Fisher, the principal purpose of respite care is to give those providing care the opportunity to take a break, recharge their batteries and regain their perspective on the world. I have no doubt that Mr Rothera, and therefore Mrs Rothera, would benefit greatly from Mr Rothera taking such opportunities regularly, as has been recommended.
[62] Since Mr Rothera himself will not initiate or agree to respite care, it is necessary that a third party should make the decision that Mrs Rothera should go into respite care if that is warranted. The Welfare Guardian is the obvious person as he has the responsibility for ensuring Mrs Rothera’s welfare.
[63] There are both legal and practical reasons why any decision about Mrs Rothera going into residential care should rest with the Welfare Guardian. The legal reason is that under s 18(2) of the PPPR Act, a welfare guardian has all of the powers necessary for making and implementing decisions for the person for whom the guardian is acting. It follows that Mrs Rothera’s Welfare Guardian has the authority and the responsibility for making and implementing decisions about Mrs Rothera’s long term residential care. The practical reason is that the evidence shows that Mr Rothera would have difficulty accepting that Mrs Rothera’s interests would best be served by her being placed in residential care, even if that was the recommendation of the medical professionals.
[64] In the relief sought, Mr Rothera asks that any decision by the Welfare Guardian to place Mrs Rothera in respite or residential care is subject to his consent or is subject to a Court order following a hearing at which Mr Rothera is able to participate. I note he also proposed that the consent of the three Rothera children should be required for a decision to place Mrs Rothera into residential care but I consider that to be secondary to his desire for direct personal input in the decision.
[65] There are various difficulties with Mr Rothera’s proposal. First, that would cut across the powers and responsibilities of the Welfare Guardian as set out in s 18 of the PPPR Act. Secondly, the evidence shows Mr Rothera would struggle with any proposal for Mrs Rothera to go into residential care. Thirdly, to make such a decision subject to a Court hearing would add delay, complexity and stress for the Rothera family when the decision is necessarily driven by medical and not legal considerations.
[66] I note that, irrespective of what is provided in the personal orders, any decision by the Welfare Guardian to place Mrs Rothera in respite or residential care could be changed if there were serious concerns, for example by application for injunction or judicial review. But the bar for Court intervention would necessarily be high given the history of this case.
[67] I also note that Mr Rothera would not be excluded from having input into decisions about Mrs Rothera going into respite or residential care. Even leaving aside the personal order that requires Mr Rothera to be informed of a decision to put
Mrs Rothera into residential care, the Welfare Guardian has consultation obligations under s 18(4) of the PPPR Act when making decisions relating to the personal care and welfare of Mrs Rothera. Section 18(4)(c)(ii) requires the Welfare Guardian to consult, as far as practicable:
Such other persons as are, in the opinion of the welfare guardian, interested in the welfare of the person and competent to advise the welfare guardian in relation to the personal care and welfare of [the person for whom the welfare guardian is acting].
[68] Mr Rothera is undeniably a person interested in the welfare of Mr Rothera and is competent to advise, even if he is likely to have fixed views. Even so, Mr Rothera must be consulted on major issues such as whether or not Mrs Rothera should go into respite or residential care. Consultation would require Mr Rothera to be adequately informed of what is proposed and the reasons why so he can put his views and have them considered before the final decision is made.7 This right to be consulted is more than just being advised of a decision already made, so it applies in addition to what is provided in the personal orders. But it is not a veto.
Decisions concerning changes in Mrs Rothera’s General Practitioner
[69] Under the personal orders, decisions about who should be Mrs Rothera’s general practitioner rest with the Welfare Guardian rather than Mr Rothera. The apparent reason was to avoid a repeat of what had occurred previously when Mr Rothera had unilaterally changed Mrs Rothera’s general practitioner which, in one case, had led to Mrs Rothera’s medication running out. This order is for Mrs Rothera’s protection.
[70] I do not accept, as Mr Thwaite proposed, that a qualification should be added to the personal order to the effect that any replacement general practitioner should, unless good cause exists, come from the Crawford Medical Centre (the Medical Centre currently providing general practice services to Mrs Rothera) and that, except in an emergency, the Welfare Guardian must first consult with Mr Rothera and either or both of Ms Signy and Ms Halley. That amendment would not assist Mrs Rothera’s
7 Wellington International Airport Ltd v Air New Zealand [1993] 1 NZLR 671 (CA) at 676.
protection; to the contrary it could provoke further disagreement and tension within the family.
Visitation rights of the Welfare Guardian
[71] Mr Thwaite proposed that the personal orders be amended to provide that the Welfare Guardian may nominate someone knowledgeable in welfare matters and reasonably acceptable to Mr Rothera to undertake the visitation responsibilities under the personal orders. He also proposed that, except in an emergency, two days’ notice be given of visits, indicating whether the visit should be in the morning or the afternoon.
[72] Mr Thwaite acknowledged that these proposals were made because of Mr Rothera’s antipathy towards the present Welfare Guardian, Mr Lockroy, whom Mr Rothera does not want to have in his home and whom he considers does not have the requisite experience and qualifications to be Welfare Guardian.
[73] Mr Rothera has applied in the Family Court for Mr Lockroy to be replaced as Mrs Rothera’s Welfare Guardian. That will be the appropriate forum to determine whether Mr Lockroy should continue in that role given the breakdown in the relationship with Mr Rothera. However, the fact that Mr Rothera does not like Mr Lockroy does not absolve Mr Lockroy of his responsibilities as Welfare Guardian and cannot determine the content and operation of the personal care orders which are for the benefit of Mrs Rothera.
[74] Accordingly, I do not consider the Family Court erred in the way it expressed the visitation responsibilities in the personal orders. I also do not consider it appropriate for this Court to amend those orders to encourage Mr Lockroy to delegate the exercise of those responsibilities to someone else, let alone to give Mr Rothera a role in determining who that delegate should be.
[75] As far as the question of notice is concerned, that should not require Court intervention. I encourage Mr Lockroy nonetheless to work with Mr Rothera and to give him the courtesy of adequate notice – provided Mr Rothera does not obstruct Mr Lockroy’s ability to see Mrs Rothera.
Authority to use reasonable force
[76] Providing for the right to use reasonable force, including the police, in ensuring the care of Mrs Rothera was one of Dr Fisher’s recommendations in his report of 5 May 2017, although he linked it to the Welfare Guardian’s difficulties in getting Mr Rothera to agree to respite care rather than residential care, as well as to the more general difficulty of enforcing care and protection orders. In his directions to Ms von Keisenberg regarding the preparation of the draft personal orders, Judge Druce also referred to the need to make some tough decisions and said, “And if there’s police required, there’s police required.”
[77] In the circumstance of this case, particularly having regard to Mr Rothera’s response when Mrs Rothera was placed in residential care in 2015 and Mr Rothera’s reluctance to accept that Mrs Rothera will likely have to go into residential care eventually, I cannot conclude that the inclusion of such a provision in the personal orders was wrong or that it should be deleted.
Result
[78] For the above reasons, I dismiss the appeal and reaffirm the personal orders made by the Family Court on 17 August 2017.
Concluding observations
[79] In writing this judgment, I have been conscious that Mr Rothera has devoted so much of his energy over the past four years to looking after his wife. Like Judge Druce, I respect Mr Rothera’s determination. It seems cruel – a term Mr Rothera used when describing his situation– not to be able to respond positively to the concerns Mr Rothera raised, particularly about the numbers of carers passing through his home and the very significant costs of that care. I have a lot of sympathy for him.
[80] The difficulty for this Court and the Family Court is the way Mr Rothera has gone about the task he set himself of caring for Mrs Rothera at home through her progression into dementia. For Mrs Rothera to be cared for adequately at home, she needs outside help. Keeping those helpers at bay as Mr Rothera has done is the reverse
of what Mrs Rothera needs. If Mr Rothera wants to have Mrs Rothera at home – as he clearly does – it is incumbent on him to facilitate the arrangements that support that outcome and not to create obstacles and objections.
[81] I agree that the arrangements in the personal orders seem restrictive and intrusive. In another situation, they might well have been held to be inappropriate. But I cannot reach that conclusion in this case. They are appropriate and necessary in the circumstances.
Costs
[82] Counsel did not address me on costs. If they wish to do so, they may file memoranda of no more than 5 pages each by 7 April 2018.
van Bohemen J
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