NU v Protective Commissioner (GD) [2005] NSWADTAP 42

Appeal Panel - Internal

CITATION: NU v Protective Commissioner (GD) [2005] NSWADTAP 42 APPELLANT PARTIES: NU RESPONDENT Protective Commissioner FILE NUMBER: 059023 HEARING DATES: 30/06/2005 SUBMISSIONS CLOSED: 06/30/2005 DATE OF DECISION: 08/26/2005

NU v Protective Commissioner [2005] NSWADT 62 DECISION UNDER APPEAL: BEFORE: O'Connor K - DCJ (President); Britton A - Judicial Member; Wunsch A - Non Judical Member CATCHWORDS: Protected person - decision as to sale of property - no error of law MATTER FOR DECISION: Principal matter FILE NUMBER UNDER APPEAL: 043387 DATE OF DECISION UNDER APPEAL: 03/22/2005 LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Protected Estates Act NU v Protective Commissioner [2005] NSWADT 62 CASES CITED: Azzopardi v Tasman UEB Industries Ltd [1985] 4 NSWLR 139 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 APPELLANT REPRESENTATION: B Hassett, solicitor, The Aged-care Rights Service RESPONDENT T Tunbridge, solicitor ORDERS: Appeal dismissed

REASONS FOR DECISION 1 This is an appeal against the decision of the Tribunal to affirm the decision of the Protective Commissioner to sell the home of the appellant ('NU'), a protected person. The Tribunal's decision is reported as NU v Protective Commissioner [2005] NSWADT 62 (22 March 2005). The appeal was heard on 30 June 2005. 2 NU is a woman aged 55 years. The Guardianship Tribunal has committed her financial affairs to the management of the Protective Commissioner, by order first made in 13 December 1995. The Public Guardian is responsible for her needs in relation to accommodation, health care, medical and dental consent and services, by order last made 29 March 2004. 3 On 27 November 2004 Mr Brooks, on behalf of the Protective Commissioner, notified NU, giving detailed reasons, of his decision to exercise the power given to the Commissioner by s 24 of Protected Estates Act 1983 (the PE Act) to sell the house she owns at Ingleburn, current valuation in the range of $300,000 to $330,000. The house was once her family home. She has been married twice, and has two living children. She has strongly opposed any sale of the house. 4 NU applied for internal review of the decision. By decision dated 13 January 2005 a more senior officer of the Office of the Protective Commissioner (OPC) reached the same view, again giving detailed reasons. She had already applied, prematurely, to the Tribunal for review of the Commissioner's determination on 3 December 2004. 5 The Tribunal accepted the primary conclusions reached by the OPC: (1) NU is unable to live at home on her own; (2) She requires more intensive support to live in the nursing home; (3) Such support is required not only to assist in improving NU's quality of life, it is required also to support the nursing home staff; (4) She requires 24 hour supervised care; (5) She needs attendant care and associated services. 6 The Tribunal accepted that NU's present needs were such that they could not be met by recourse to her current income alone. Additional monies were needed, and these could only be obtained by the creation of a capital fund. The only source of monies was through the sale of the house. Background 7 NU has not lived at her house since 1997. It is rented out. She has lived full-time in a nursing home at Burwood, where most of the patients are much older than her. There is no prospect of her returning to live at home; though she continues to hope that that might happen one day. 8 NU has a degenerative brain condition. She has a long history of uncontrolled epilepsy. She has been diagnosed as having a chronic brain syndrome involving substantial cognitive impairment, characterised by impulsivity, aggressive outbursts, deficient organisational planning and reasoning ability and markedly impaired judgement and lack of insight. The documentation filed by the Protective Commissioner indicates that with the assistance of medication she is usually stable and able to deal with those around her. Her mobility is reducing, and she now uses a wheelchair. 9 A report to the Protective Commissioner in late 2003 commended that a 'structured behavioural management programme' be developed for NU. The provider of that report (Dr Barbara Liddle) confirmed her view in an affidavit filed in January 2005 for the Tribunal hearing. Such a program is seen as desirable as a means of reducing NU's aggressive outbursts, which in turn would make it more possible for the nursing home to continue to care for her. The program is designed to provide her with the enjoyment of going out shopping and to support her interests in make-up and hair, and in writing. It also seeks to provide support for her frequent medical visits. 10 The officer responsible for managing her estate, Mr Brooks, held a meeting in November 2004 with key nursing home staff and NU. He was concerned that NU's annual income was not sufficient to meet her future care needs. To that point it had proved to be just sufficient. He again raised the option of selling NU's house, so as to find extra funds to provide for her attendant care needs. 11 Ms Sunderland, the Director of Nursing at the nursing home, informed Mr Brooks that NU's behaviour had improved since the time of Ms Liddle's report. But she agreed that NU would benefit from the following: a wheelchair, more regular community access, hairdressing, clothing purchases and podiatrist visits. She advised that it was no longer possible for the nursing home to assist in this regard by making available a staff member to accompany NU. 12 The nursing home has subsequently advised (see report provided by Deputy Director of Nursing, Ms Widjaja, to OPC on 10 January 2005) that NU's general physical condition had declined to the extent that she now needs to use a wheelchair to get around. 13 NU's financial situation is as follows. Her basic needs (nursing home fees and certain other costs) cost $13,365 per year. This amount is roughly equal to her income. Her income (as at November 2004) is $14,600 made up of net rental income, $5760, plus pension $8000 plus other income $200. The Commissioner's projection for the 12 months to November 2005, assuming retention of the property and the continued earning of rental income, is that there will be a shortfall of $4375. 14 The care plan now proposed will increase the required expenditure per annum to $34,693. The key new cost is for 12 hours' attendant care per week at $32 per hour ($384 per week), i.e. $19,968 per year. 15 If the house is sold, NU's pension will drop from $8,000 to $3,235 and there will, necessarily, be no further rental income. It is anticipated that the net sale proceeds (after paying sale costs and clearing some small debts) will leave $293,000. The proposal is to take from that sum $21,000 to meet the first year's attendant care costs, and invest the balance, $273,000. Invested at 5.3% that will result in earnings of $14,416. So the total income stream will then be about $17,600. This scenario makes no provision for the additional amount required, of about $17,000 to cover the cost of the care plan in the second year and beyond. It is obvious that it will be necessary to make withdrawals from the capital fund, with consequent depletion of the fund's income-earning capacity. On the other hand there will be some improvement in the pension as NU's fund diminishes. (The relevant calculations are complex, and are dealt with in Mr Brooks' material.) 16 While we have not done a precise calculation, our estimate is that the entire fund would be exhausted in less than 10 years. 17 On the other hand unless a capital fund is created, the income generated by way of rent and pension will at best barely provide for NU's most basic needs, and even that can not be guaranteed given her declining health. 18 NU, at the meeting in November 2004, and consistently since, has indicated her strong opposition to the sale of the home. She has also indicated that she will refuse to go on outings if they are financed from the sale of her home. Tribunal Hearing 19 At hearing, the Tribunal considered all the material that was before the Protective Commissioner as well as the submissions made in writing by NU and those of Ms Hassett for NU, and other material filed by them. NU was present at the hearing. The Tribunal received evidence from NU's general practitioner, Dr Hor and the Director of Nursing (Ms Sunderland) by telephone. 20 In its detailed reasons delivered 23 March 2005, as noted, the Tribunal reached the same view that had commended itself to the Commissioner – that, upsetting as it must understandably be for NU, there was no choice but to allow for the place which was for so long her family home, to be sold to find the funds to meet her ongoing health care needs. Appeal 21 This matter has now been the subject of three processes of deliberation and decision. The first two occurred at the OPC. The third occurred externally, and independently of that office, before the Tribunal below. 22 When a decision comes before the Tribunal for review, the relevant Division of the Tribunal (here the General Division with a member presiding drawn from the Guardianship and Protected Estates list) has a role equivalent to that of the administrator, and is required to make the 'correct and preferable' decision having regard to all relevant material then before it: see Administrative Decisions Tribunal Act 1997 (the ADT Act, s 63). The nature of this role is often captured in the expression that the Tribunal 'stands in the shoes' of the administrator. 23 The Appeal Panel's role is a more confined one. The ADT Act, s 113(2) provides: '(2) An appeal under this Part: (a) may be made on any question of law, and (b) with the leave of the Appeal Panel, may extend to a review of the merits of the appealable decision.' 24 It will be seen that the legislation directs the Appeal Panel only to allow a further full merits review after the grant of leave. The grant of leave is a discretionary matter. This contrasts with the position in relation to an appeal relating to a question of law, which is as of right. 25 In a number of decisions since 1999 Appeal Panels have indicated that ordinarily it would be undesirable to grant leave to extend an appeal to a consideration of the merits (i.e. a full de novo review) if no material error of law in the underlying decision has been demonstrated. While there can be no fixed rule in relation to the exercise of a broad leave discretion like that found in s 113(2)(b), there would, we think, normally have to be significant factors (such as fresh evidence that had not been available to the Tribunal below) before leave would be granted in the absence of any material legal defect in the decision under appeal. 26 Any ready exercise of the leave discretion would lead to the undermining of the authority of first instance decisions in the Tribunal, place parties who have been successful at first instance with the prospect of costs additional to those caused by the appeal, produce additional delays in the process of finally determining the matter, increase the cost to government of the operation of the Tribunal and undermine the objective of finality in litigation. Moreover these considerations have to be placed in a setting where the ordinary rule in the Tribunal is that each party bears their own costs, unless 'special circumstances' are shown (ADT Act, s 88). 27 It may be argued that a more flexible approach to the grant of leave should be taken in dealing with appeals arising in a protective jurisdiction. The general considerations that we have mentioned also apply to this class of matter. We are not inclined to differentiate. 28 Ms Hassett made the following criticisms which she asserted involved errors of law: (1) That the Tribunal wrongly based its considerations on the careplan as envisaged by Mr Brooks. That plan had not been accepted by NU, and therefore the relevant plan to which regard should now be had is the management plan for nursing staff which operates at no cost to NU. (2) That the Tribunal relied on professional reports as to NU's circumstances and needs which were out of date. (3) That the Tribunal failed to have regard to the evidence of Dr Hor, NU's general practitioner, given to the Tribunal by telephone at the hearing. (4) That the Tribunal failed to take into consideration the telephone evidence given at hearing by Ms Sunderland, the Director of Nursing at the nursing home. (5) That the Tribunal failed to take into account the detrimental effect that the proposed sale will have on NU's state of health, and referred in that regard to the evidence of Dr Hor and Ms Sunderland. 29 The care plan can only work if NU co-operates with it. She is not prepared to co-operate if the price of co-operation is the loss of her home. Ms Hassett therefore submits that in looking at what the comparative choices are, the Tribunal, and the Commissioner, should have regard to a plan with which NU is prepared to co-operate. 30 Ms Hassett also placed before the Appeal Panel additional factual material in the form of affidavits of the Director of Nursing, Ms Sunderland and Dr Hor, both sworn 18 April 2005. This was designed to bolster her case that the Tribunal had failed to give adequate consideration to the evidence of the two professionals who have the greatest day-to-day contact with NU. 31 For the reasons canvassed earlier, it is not desirable, generally, to have new factual material put on at the appeal level. Normally it would only be allowed if there was fresh evidence that might, if admitted, alter the outcome of the decision under appeal. 32 A peculiar feature of this class of case, as compared to many others with which the Tribunal reveals, is that the parties have a continuing relationship. Therefore further relevant evidence may continue to be generated between the time of the Tribunal decision and the hearing of the appeal. While for the reasons which follow, we think the new affidavit evidence is of limited value, we think it desirable to take account of it. For the purposes of the appeal, we have treated it as though it were material before the Tribunal. We have asked whether, had the Tribunal had before it the fresh material, is there a possibility that it might have reached a different conclusion. 33 We have reviewed the evidence given by Ms Sunderland and Dr Hor at the Tribunal hearing (the Commissioner provided us with a transcript of the audio recording of the relevant passages) and the affidavits of 18 April 2005. 34 Dr Hor explained to the Tribunal that he was NU's general practitioner and was prescribing medication to her in accordance with the advice of her neurologist, Dr Sharpe. He said she was quite stable. He expressed the view that she was getting quite good service from the nursing home and that he did not think she required any extra services. His answers indicated that what he had in mind were the services she was receiving in relation to dressing, food and medical attention. He was asked what his views were in relation to outings outside the nursing home, and replied: 'That I don't know'. As to the effect of the sale of the house on her, he said: 'that makes her depressed … she does not want to sell the house … And she tends very upset about selling the house [sic]. But she does not want to sell this house. And … I feel sorry for her'. 35 As to the question of whether it will ever be feasible for NU to return to the house, Dr Hor said 'No … I don't think she will be able to cope in a house by herself'. He agreed that NU would benefit from outings. 36 Most of Dr Hor's additional evidence in the affidavit tendered to the Appeal Panel reiterated his evidence to the Tribunal. Two statements might be seen as in addition: that NU requires 'the same amount of intervention which is normal for that which is required of a resident in a nursing home'; and her 'state of health over the past four months has been stable, physically, but her mental health is genuinely affected by the proposal to sell her house'. 37 Ms Sunderland, referred in her evidence to the Tribunal to difficulties that the nursing home had encountered in managing NU in the past, including having on occasions to transfer her to a hospital. The episodes which led to these difficulties normally occurred out of hours. She noted that over the last year since a new medication had been prescribed NU had been much happier. She referred to the adverse effect on NU's stability that the issues surrounding the possible sale of the house were having. She noted that once NU became aware around November 2004 that she was being charged, for the outings initiated and organised by the Protective Commissioner, she refused to continue with them. On the other hand, Ms Sunderland noted that NU had very much enjoyed the outings, and that she had looked forward to them. 38 Ms Sunderland referred to NU's need to travel to Concord Hospital, the cost of the taxi – $60 there and back – the need for a nurse to accompany her, for her frequent visits to her neurologist. She noted that because of her 'extensive needs' she has 'many appointments'. Ms Sunderland referred to the strain that this places on the resources of the nursing home, and that this matter is kept under notice by the proprietors, but at this stage NU's place in the nursing home is not under threat. She noted that she or her deputy generally had to attend to NU when she needs special nursing care, as they were the people among the staff with the skills best able to deal with her distress and behaviours. She said that the possible sale of the house, a matter that had been under consideration for two years, was causing NU great distress. 39 In answer to questions from Ms Hassett, Ms Sunderland said that NU would benefit from having support from a person with psychiatric training, who would come in on an as-needed basis. She spoke of the need for someone to 'sit and counsel' NU, who is used to dealing with delusion and paranoia. She spoke positively of the effect on NU of a person who had provided that service in September 2004. 40 In answer to questions from Mr Tunbridge for the Protective Commissioner, Ms Sunderland acknowledged the need for NU to have attendant care arrangements, though she felt that they would only be needed on an occasional basis as NU often goes along well for one or two months at a time. 41 Ms Sunderland's affidavit for the Appeal Panel covers much of the same ground. She expressed concern over the impact of the sale on NU's emotional well-being. She felt that it was highly likely that NU would reject any additional services that were introduced following the sale of the house. Most concerningly, she said that she was worried with the effect the proposed sale might have on NU's health, as she has demonstrated suicidal tendencies in the past. 42 We now turn to the grounds of appeal as set out in para [28] above. 43 As to (1), in our view the Tribunal was entitled to have regard to the care plan formulated by Mr Brooks. It was a considered attempt, in response to professional advice, that sought to deal with NU's attendant care and crisis management needs. Even if the attendant care needs are removed from the equation (because of NU's determination not to take outings if they are to be paid for out of her funds), there remain her crisis management needs. It is plain from the evidence that the nursing home, a general nursing home with a patient population predominantly over 65 years, is not ideally suited to dealing with NU's behaviour when it is extreme. On the other hand, it is obviously desirable for NU to remain in its care, and the nursing home is prepared to have her continue. It is also plain that she is required frequently to attend medical assessments at the Concord Hospital where her neurologist is located. Her mobility is declining. Equally the evidence is clear that she has in the past enjoyed outings and looked forward to them. If they can be revived with her co-operation, that would clearly be to her benefit. 44 Mr Tunbridge said that the extra services which tipped the need for additional funds beyond the present barely sustainable level was the ongoing need for crisis management services. The attendant care services connected with outings of a social character were additional to that. We are satisfied, despite Ms Hassett's criticisms, that the Tribunal dealt with these issues adequately at para [13] of its reasons where it said: '13 Ms Hassett, representing NU maintains that the present Management Plan is working well and NU does not require regular attendant carers. According to Ms Hassett, a crisis care management plan should be developed and come into effect only when her behaviour warrants it. Ms Hassett also emphasised that the Tribunal should take into account the effect that the intention to sell her property is having on NU. The first difficulty with Ms Hassett's submission is that she did not indicate exactly how much the current care plan together with crisis management, would cost. On the basis of the figures for the last financial year, NU's expenditure is already in excess of her income. With no services whatsoever, NU only has approximately $ 1235 per year to spend. It is unlikely that that amount would cover the cost of the current care plan together with crisis management.' 45 As to (2), we agree that some of the professional reports were 'out of date' in the sense that they belonged to the years 2002 and 2003 rather than the time of the primary decision (November 2004) or the Tribunal decision (February 2005). But these reports have to be viewed in a context where the condition from which the protected person suffers is a permanent and deteriorating one. The main difference between the position that prevailed at the time of the early reports and now is the more recent medication regime which has resulted in more stable behaviour on the part of NU than was previously the case. This does not negate the value of the attendant care measures that have been proposed by the professional advisers. There is nothing in the evidence to suggest that the recent improvement is so great as to negate the general approach found in the reports of 2002 and 2003 (in particular, the report of 19 February 2003 from Ms Barbara Liddle, neuropsychologist, now reaffirmed by her in her affidavit of January 2005). 46 Moreover it is clear from Ms Sunderland's evidence at hearing, and her most recent affidavit, that she continues to remain concerned as to whether a point will be reached where it is not possible for the nursing home, with its limited capabilities, to provide the degree of specialised support needed by NU. 47 The Tribunal dealt with the array of reports satisfactorily, and, in our view, persuasively. 48 As to (3), the Tribunal did refer, briefly, to Dr Hor's evidence at para [9] of its reasons. It referred to the most salient point of Dr Hor's evidence, that NU benefited from going on outings. It is not necessary in reasons for decision for a court or tribunal to refer didactically to all the evidence. There is nothing in these reasons to suggest that Dr Hor's evidence was ignored, or not taken into account. 49 As to (4), the Tribunal referred to Ms Sunderland's evidence, in general terms, at [1], at [5] and at [14] and specifically at [9]. 50 In our view, again there is no problem with the Tribunal's approach. 51 As to (5), the Tribunal acknowledged, at several points in its reasons, the critical concern of both Dr Hor and Ms Sunderland that the sale may be damaging to NU's emotional health. It did not have before it a statement involving any reference to suicidal tendencies, but it was, we think, quite conscious of the deepness of NU's hostility to the proposed sale and the extreme behaviour that she is prone to engage in. 52 More generally, we are satisfied that the Tribunal had regard to relevant factors. It weighed them differently to the way NU, and her representative Ms Hassett, would weigh them. The judgment required of the Tribunal (and in turn the Commissioner) is a discretionary one guided by the best interests of the protected person. 53 We do not think that the Tribunal would have reached any different conclusion had it done as suggested by Ms Hassett, and excluded entirely from its consideration social outings and the cost of related attendant support. In that regard, we note that the evidence is that nursing home group outings are not suitable for NU. 54 The financial information demonstrates that a point has been reached where the costs incurred in respect of the most needed attendant care – for medical visits and any emergency services – can not be met by NU's present income. On these grounds alone the point has been reached where a more substantial fund must be generated. 55 Ms Sunderland's most recent affidavit expresses concern over the cost of the services that were provided by Access Brain Injury Services in the period 2002 to 2004 until stopped when NU objected. The amounts shown in the care plan do not, to the Tribunal, appear to be unreasonable or excessive. But in any event those concerns can be addressed by the Commissioner. 56 The question of how best to manage the response of NU to the decision to sell is one that the Commissioner will also have to deal with, in light of advice from NU's neurologist and other professional advisers. 57 The only alternative that we could see for finding the funds required, short of selling the home, would be to borrow against the equity. There would also continue to be some rent income; and it may be that the pension can be kept at the higher level that presently applies. There would not be sufficient income, however, to fund repayments of the loan. Therefore the lender would have to allow interest to accumulate until ultimate sale. The benefit of this approach is that it allows the estate to have the benefit of growth in the value of the home; and it may, perhaps, give some comfort to NU in knowing that the house remains hers – to a lesser extent than previously. There is no material before the Tribunal going to the practicability of this alternative. 58 The Tribunal refers in its reasons to the views of those who are close to NU, including her daughter and ex-husband. They do not oppose the sale of the house. 59 We have not referred in this decision to the relevant case-law. Leading cases in New South Wales on the need to give adequate reasons, and what is required to fulfil that standard are Azzopardi v Tasman UEB Industries Ltd [1985] 4 NSWLR 139; and Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247. We see nothing in the Tribunal's reasons that infringes the standard set by these cases, or later cases applying them. There is no error of law identified. 60 We have looked at whether the fresh material might have resulted in there being a realistic possibility that the Tribunal might have reached a different conclusion. Had it had this material, which only in a small way added to what is already known, it would not, we believe, have made any difference to its decision. Leave to extend to the merits, therefore, is formally denied. 61 Nonetheless we have sought in these reasons to re-explain the logic of the Tribunal. We regard the conclusion it came to as an unavoidable one in all the circumstances. Order 62 Appeal dismissed.