KU v Public Guardian [2004] NSWADT 155

CITATION: KU v Public Guardian [2004] NSWADT 155 DIVISION: General Division APPLICANT PARTIES: KU RESPONDENT Public Guardian FILE NUMBER: 043081 HEARING DATES: 23/07/2004 SUBMISSIONS CLOSED: 07/23/2004 DATE OF DECISION: 07/30/2004

BEFORE: O'Connor K - DCJ (President) APPLICATION: Guardianship Act - Public Guardian - place to live MATTER FOR DECISION: Principal matter LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Guardianship Act 1987 CASES CITED: APPLICANT REPRESENTATION: In person RESPONDENT C Phang, legal officer ORDERS: Decision under review affirmed.

REASONS FOR DECISION 1 Mrs M, now aged 84 years, is the subject of a limited guardianship order (renewing a previous order) made under the Guardianship Act 1987 (the Act) by the Guardianship Tribunal on 8 March 2002. The duration of the present order is 3 years. The appointed guardian is the Public Guardian. The present order confers responsibility on that office for making decisions for Mrs M in relation to: access; accommodation; health care; medical/dental consents; and services. 2 KU, a daughter of Mrs M, applied to this Tribunal on 1 April 2004 for review of a decision of the Public Guardian notified to KU on 15 March 2004 in relation to a change of accommodation. Her mother had been relocated on that day from her home at Orange (and the day care program which she had attended there) to full time care, initially on a respite basis, at Jemalong Retirement Village, Forbes. 3 The decision is one that may be the subject of an application for review. Section 80A(1) of the Act permits applications to be made to this Tribunal (referred to in the Act as the 'ADT') for: 'review of a decision of the Public Guardian that: (a) is made in connection with the exercise of the Public Guardian's functions under this Act as a guardian, and (b) is of a class of decision prescribed by the regulations for the purposes of this section.' 4 As to requirement (b), the Guardianship Regulation 2000 , cl 14A, provides that: 'All decisions made by the Public Guardian in connection with the exercise of the Public Guardian's functions under the Act as a guardian are prescribed for the purposes of section 80A of the Act.' 5 Such an application may only be made by a person who falls into one of the four categories specified in s 80A(2) of the Act. The issue of whether KU has standing to pursue the application was not actively canvassed before the Tribunal. 6 KU does not belong to the first three categories (i.e. the person to whom the decision relates, the spouse of the person, or the person who has the care of the person to whom the decision relates. The only category into which she might fit is that found in s 80A(2)(d), i.e. 'any other person whose interests are, in the opinion of the ADT, adversely affected by the decision'. 7 The Public Guardian did not raise any objection on this ground to the application. KU sees her interests (and those of several of her siblings) as adversely affected because her mother has been cut off from her to a greater degree than was previously the case. This is not an appropriate occasion on which to explore the boundaries set by the words 'interests … adversely affected by the decision.' Despite KU's indication of her low level of contact with her mother in recent years (as to which see [29] below), the Tribunal is prepared to accept that she is a person whose interests are adversely affected by the decision, as her mother can no longer be visited at home, and her mother is now located more than 100 kms away from Orange at Forbes. 8 This Tribunal's powers in respect of reviewable decisions are found in the Administrative Decisions Tribunal Act 1997 (the Tribunal Act). Relevantly to this case, s 55(1)(b) provides that a person may apply for review 'only if: … an internal review is taken to have been finalised under section 53(9).' The Tribunal has a power to dispense with that requirement: see s 55(2), referred to further below. 9 When KU filed her application on 1 April 2004 there had been no internal review of the decision in issue by the Public Guardian. At the first directions hearing, the Public Guardian noted that the initial decision was for respite care, and that a further decision was to be taken soon as to whether to make the placement permanent. It was agreed that there should be an internal review of the original decision undertaken, with a decision only needing to issue if there was a further decision to make the new placement permanent. Such a decision was taken. Reasons for decision were issued confirming the original decision. The reasons for decision are dated 18 May 2004. Further directions were given on 25 May 2004. In light of concerns raised by KU, the Tribunal directed the Public Guardian to obtain advice as to whether it was practicable to relocate Mrs M to Ozanam Villa at Orange, a facility which KU saw as more appropriate. 10 Returning to the issue of whether the application was properly lodged, the precondition of internal review may be waived by the Tribunal if 'it is necessary for the Tribunal to deal with the application in order to protect the person's interests [the person for this purpose being the applicant] and the application to the Tribunal was made within a reasonable time following the decision of the administrator concerned': s 55(2)(c). In the circumstances, the Tribunal is satisfied that this is a case in which it is appropriate to dispense with compliance with the usual requirement. KU's complaint is one, at least, of loss of proximity to her mother. Decisions of the kind taken by the Public Guardian in this case are radical ones, and it is understandable that an aggrieved relative would want to approach the Tribunal at the first opportunity especially as the passage of time may itself militate against alteration of the decision. 11 As to the Tribunal's decision-making powers, the Tribunal has the power to substitute another decision for that of the Public Guardian if that is the 'correct and preferable decision … having regard to the material then before it, including the following: (a) any relevant factual material, (b) any applicable written or unwritten law': s 63(1). See generally s 63, Tribunal Act. In approaching this task, the Tribunal has regard to the principles developed over the centuries in the protective jurisdiction and enunciated in the Act (see, for example, s 14). 12 KU opposes the Public Guardian's decision, as do seven of her siblings. All eight attended the hearing before the Tribunal on 23 July 2004. They came from various parts of the State and one from Western Australia. 13 Mrs M has twelve adult children. The remaining four do not agree with the other eight, and have written to the Tribunal supporting the action taken by the Public Guardian. They did not attend the hearing. 14 Mr James Conna, Acting Regional Manager, Office of Public Guardian attended the hearing. Mr Conna has a close knowledge of Mrs M's case. Ms Phang, legal officer, from the Office appeared on behalf of the Public Guardian. 15 Mrs M has for the last 40 years lived at Orange. She was first the subject of a guardianship order in December 1997. The initial order was subsequently extended; and in early 1998 the Public Guardian arranged for her to join a day care program conducted by the Wontama centre at Orange (run by Uniting Community Care Services). She attended Wontama during the day and continued to live in her home unit. Her involvement in the Wontama program has been monitored by the Extended Care Service, a program administered by the Commonwealth Government's Aged Care Assessment Team ('ACAT'). On 3 February 2004 Wontama advised the Public Guardian that Mrs M's general health, in particular her mental health, had reached the point where it was in her best interests that she be placed in full time care. The recommendation was as follows: 'Mrs [M] has been managing with assistance of the Wontama Community Aged Package since 1998 however due to her stage of dementia we would like to recommended [sic] Mrs [M] for residential care in a secured dementia unit as we feel she is now at risk at home.' 16 On receipt of this advice the Public Guardian obtained advice and assessments from Mr Gary Hillier of the Extended Care Service and Dr Fran Gearon, Medical Officer, Extended Care Service. Both had long term knowledge of Mrs M's case. Their advice was supportive of the initial recommendation. They referred to Mrs M's continuing tendency to wander, her increasing level of confusion and memory loss, her increasing levels of agitated behaviour and her increasing difficulties with self-management tasks associated with daily life. Dr Gearon's conclusions were: '…I would recommend that she has an increased level of supervision and assistance. Options for providing this increased level of supervision and assistance need to be investigated. Obviously, she is now enjoying an extremely high level of community support through the Community Aged Care Packages and District Nurses, as well as the Wontama Day Centre. Additional services at home would, I imagine, only be possible by private negotiation using her own funds, which could possibly be done on her behalf by her appointed Guardian. Other alternatives obviously include institutional care, which I feel would necessarily be in a secure unit, and depending on how she settles, it may be possible at low level care. However, if the current level of agitation and anxiety continues, high level care in a secure unit may be necessary.' 17 The Public Guardian proceeded to consider institutional care; and arranged for Mrs M to be placed in full time care on a respite basis in a hostel at the Jemolang Retirement Village at Forbes. Notably, Wontama declined to offer a similar place because of difficulties it had experienced in the past dealing with Mrs M's family. As noted Mrs M was admitted on 15 March 2004, and KU was notified of the decision the same day. 18 The following documentary material was placed before the Tribunal at hearing. Much of it was tendered by KU. The Public Guardian objected on grounds of relevance to much of the material, as it did not relate strictly to the decision under review. The Tribunal accepts that it is the case that much of it does not relate to the decision under the review. However, the Tribunal found it helpful in giving a fuller (though undoubtedly incomplete) history of Mrs M's case since 1997. The documents divide up as follows: (a) Chronology of orders, filed by Public Guardian; (b) from 1997 – assessment of Mrs M by Dr Fran Gearon, Medical Officer, Extended Care Service (ACAT) dated10 February 1997, medical report by Dr G J Shannon 10 September 1997, and other documents relating to grant of power of attorney by Mrs M to KU (See Ex 10); (c) from 2002 - Guardianship Tribunal Order of 8 March 2002 with Reasons for Decision referring in turn to the original order of 1997; (d) other material from 2002-2003: (i) Office of Public Guardian decision of 17 June 2003; (ii) Document of 5 March 2002 addressed to Guardianship Tribunal; (iii) Document titled 'Representations concerning Problems with Aged Care and Guardianship as they relate to [Mrs M]'; (iv) Letter to the Office of Public Guardian from KU (undated); (e) from early 2004 – Wontama report (already mentioned) dated 3 February 2004, report from Extended Care Service dated 25 February 2004 (already mentioned), medical opinion of Dr Fran Gearon dated 26 February 2004 (already mentioned); (f) a bundle of documents relating to the issue of respite care – 3 letters from the Office of Public Guardian to KU dated 17 May 2004, 16 April 2004 and 15 March 2004; (g) Public Guardian's reasons for decision in relation to the decision under review issued 18 May 2004; (h) various recent letters from members of the family to the Public Guardian or the Tribunal – from KU, brother T (opposing decision of Public Guardian), from sisters, M, P, M and brother A (supporting the Public Guardian); (j) from more recent months (filed by Public Guardian in accordance with Tribunal directions) report dated 21 July 2004 from Mr Gary Hillier, Extended Care Service; report dated 17 June 2004 from Melanie Oxenham, Office of Public Guardian; (k) other material filed by Public Guardian, i.e. letter dated 31 May 2004 from Debra Tooley, Manager Aged Care Service, West Sector; (l) submissions from KU taking the form of detailed comments on the reasons for decision and other material filed by the Public Guardian, together with a letter from her brother Tim referring to difficulties he claims to have experienced in visiting his mother at Forbes, medical information relating to the drug Exelon and the drug Zyprexa; (m) KU's letter of 22 June 2004 and note from Fr Greg Kennedy Parish Priest, Orange; and (n) Map showing distribution of children around Orange district and places where Mrs M has lived. 19 As previously noted, at the first directions hearing KU raised the possibility of her mother being relocated from Forbes back to Orange, and in particular that she be placed at Ozanam Villa, an aged care service run by the St Vincent de Paul Society. She felt strongly that this would better serve two of her mother's needs – being physically closer to members of the family many of whom were in Orange or its environs; and her strong Catholic faith, Ozanam being a Catholic institution. The Tribunal directed the Office of Public Guardian to obtain reports in relation to the appropriateness of relocation to Ozanam. The reports referred to under item (j) go to these matters. 20 It is clear that KU and the seven siblings supporting her have now for many years been disaffected over the way in which their mother's needs have been managed by the Public Guardian. The Tribunal heard oral submissions from KU, and there were also interventions at various points from several of her siblings. 21 KU regretted the making of the original guardianship order (a process which she said she had initiated). She questioned the original decision to place Mrs M in the Wontama program, the way the Wontama program had been conducted, the way in which she and her seven siblings had been dealt with over the years by Wontama and the Office of Public Guardian, the fairness of the later Guardianship Tribunal orders - in particular the last one made in 2002, and the competence of the staff involved in her mother's care and the competence of their assessments. Many of the submissions made to the Tribunal on this occasion reiterate submissions made unsuccessfully to the Guardianship Tribunal in 2002. Those submissions are recounted and - this Tribunal considers - persuasively rejected in the reasons for decision delivered by the Guardianship Tribunal. 22 At hearing KU also raised the possibility of neither day care nor full time care being continued, and instead her mother being allowed to return to her home with the family providing support. In that regard she referred to the support that she and two of her sisters living in Orange (J and R) were able to provide. 23 KU had, according to her, initiated the process leading to the original guardianship order because she was fearful that her mother might end up in Forbes. She referred to her anxiety that her mother had expressed about being placed in a retirement home and said that Mrs M had made negative references to Forbes in particular. That Mrs M has often made statements to the effect that she does not want to be placed in a retirement home is well accepted, and referred to in a number of the assessments. It is clear from what KU said and other material that there was already in 1997 conflict in the family over the future management of their mother's needs. This matter is alluded to in the report of Dr Fran Gearon dated 10 February 1997. The detailed reasons of the Guardianship Tribunal for its 2002 order also refer to the conflict. The more recent assessments made by the Office of Public Guardian refer to it. 24 In support of her concerns over the decision now in issue KU referred to: - the extent of the support that had been given over many years to their mother by the children located at or in the vicinity of Orange, in particular by KU and her two sisters, J and R. - the extent of her mother's connection with Orange, and the fact that a large proportion of the wider family – all twelve children had spouses, and there were 46 grandchildren – lived in the Orange area (in that regard the Tribunal accepts that the reasons for decision of the Public Guardian issued on 18 May 2004 tend to understate the extent to which the family, in particular the children, are located in the Orange area). - the relative lack of involvement (as she saw it) over many years of the oldest daughter, M, who resides at Forbes, in providing direct care to her mother. - her mother's devout Catholicism and the greater cultural suitability of a Catholic facility such as Ozanam as compared to the facility at Forbes. - the restrictions said to be affecting the Orange members of the family in relation to access visits. 25 Access and the Preservation of the Person's Existing Family Relationships . KU said at hearing that since her mother has been moved to Forbes only one of the eight she represents had attempted to visit her, the brother T. She went further and said that if her mother was not removed from Forbes back to Orange none of the eight would ever visit her there. 26 She suggested, in the Tribunal's view implausibly, that it was too inconvenient for the members of the family in and near Orange to go to Forbes. The Tribunal's understanding is that the return trip to Forbes would take between two and three hours by road. While not ideal, this is not a trip of such great magnitude, especially for Australians living in the country, to justify cutting off all access to a loved one. The suggestion points to a deeper malaise. 27 The Tribunal notes that in the period 15 March to 17 June 2004 (see advice from Melanie Oxenham), Mrs M had only had one regular visitor at Forbes, her eldest daughter M. She was given permission in the early days to visit on a daily basis to assist Mrs M in settling in and with basic care items. She has continued to visit on a regular basis. Another daughter, P (who supports the new arrangement), visited on the Anzac Day weekend. Two sons have visited, A (who supports the new arrangement) and T (who opposes). The Public Guardian advised that there had been no more requests to visit during the period. The Public Guardian advised that no requests have been refused. 28 KU objected to the Public Guardian's practice of requiring prospective visitors to obtain permission. She also was critical of what she saw as the oppressive level of supervision of visits that had occurred in the past at Wontama and was now, she said, occurring at Jemalong. KU wanted a situation where family members could visit their mother privately and without restriction. 29 As to the extent of her direct contact with her mother in recent years, KU said at hearing that she had only seen her mother twice in the last four to five years. Little weight can be attached to KU's criticisms. 30 Her only basis for the criticism of Jemalong was what her brother T had told her. T has written two letters about his experience. He also does not like having to get permission in advance. He referred to difficulties in making contact with the Public Guardian's Office. His main criticism was what he and his wife felt that they were accorded no real privacy because a staff member had stood close to them when they were with Mrs M and could overhear what was being said. The Tribunal must be guarded in any weight that it might give to such a criticism especially as Jemalong did not have an opportunity to reply. It accepts that an appropriate level of privacy should be accorded to family members when visiting their relatives in care. What is 'appropriate' will vary. 31 Mr Conna said that the Public Guardian's responsibilities under the guardianship order include the issue of access. Accordingly it would be irresponsible if the Office did not ensure that it was kept informed of prospective visits. There may, for example, be circumstances known to the Office which might suggest that it was inappropriate for the person under guardianship to receive visitors, or it may be that visits need to be managed as to duration or the number of visitors having regard to the state of health of the individual. These are familiar issues, the Tribunal considers, in connection with the management of people who are unwell including aged people suffering from dementia. Mr Conna's concerns are reasonable ones. 32 Another concern raised by KU was that she believed her sister at Forbes, M, was being given freer access to her mother than other members of the family. As noted above, M has had a high degree of access to her mother. It will often be appropriate for the family member who is in the closest proximity to the person in care to be given a greater degree of freedom in relation to access, subject always to any priorities the institution has in relation to provision of services to the resident and any contrary views expressed by the resident to which weight ought fairly be attached. The professional reports consistently indicate that Mrs M is happy with the proximity she enjoys to M and is happy to see her regularly. 33 The Tribunal does not see anything problematic, especially given the level of family tension that exists, in the Public Guardian and the care facility having some notice of intended visits especially in the early stages of Mrs M's new placement. 34 Cultural Orientation. The material reveals that Mrs M has been a committed and devout Catholic, and was an active member of the Catholic Women's Association. She likes to go to Mass. The reports indicate that she has been actively supported in this regard by Jemalong. She attends Mass twice a week. Her daughter M has expressed her satisfaction over the arrangements. The Tribunal notes that previously at Orange (at least in recent times) her daughter P (one of the four supporting the Public Guardian's decision) took responsibility for seeing that her mother got to Mass. On the other hand the Tribunal accepts that a Catholic facility such as Ozanam would offer the benefit of allowing Mrs M to be in a 'more Catholic' environment. 35 The Views of Mrs M. Ordinarily this is the matter to which the most weight should be attached. The material reveals that Mrs M has expressed concern about the conflict in the family that surrounds her care. She is reported as being comfortable at Jemalong, and being happy that she is near her daughter M. There have been times when she has expressed dissatisfaction with her living arrangements and the care programs in which she has been involved, sometimes in very aggressive terms. These have been seen as episodic behaviours and not unusual in a person with progressing Alzheimer's dementia. But the advice from Dr Fran Gearon, from Mr Hillier and from the staff at Jemalong, read overall, is that she is well adjusted to her new living environment and content in it. A further report was obtained by the Public Guardian from a person not previously connected with the case, Ms Debra Tooley, Manager, Aged Care Service, West Sector, Mid Western Area Health Service, located at Parkes. She visited on 27 May 2004, and makes a positive assessment of Mrs M's situation and advises against relocation. 36 Choice of Jemalong. Mr Conna said that the factors that influenced the Public Guardian to chose Jemalong were these: - the dementia specific program conducted by that institution - the availability of a place at the relevant time - the presence in Forbes of the oldest daughter, M - Mrs M's expressed view, one she continues to express, that she is happy to be near that daughter. 37 Mr Conna acknowledged at hearing that, had it been possible, it would probably have been preferable to place Mrs M in a facility at Orange. At the time there was no vacancy in Orange. There was one at Forbes. As to Ozanam Villa, he had some reservations mainly to do with the degree of security it practised. He said that its dementia unit was a fully locked one, whereas Jemalong's level of security was less intensive. At Jemalong patients could leave the unit and move around in the general grounds, their movements simply being monitored. He said that it was still the case that there was no vacancy at Ozanam. 38 Removal from a Care Program. The most extreme proposition advanced by KU was that her mother's interests would be best served by removal from any care program. Instead all necessary support would be provided principally by her and two of her sisters, assisted in turn by the many members of the family living in and around Orange. The Tribunal agrees with the Public Guardian that in light of the professional reports such an approach would not serve the best interests of Mrs M. Those professional reports all portray a woman with an increasing level of dementia and a deteriorating ability to care for herself at the personal level. They make, in the Tribunal's opinion, a sound case for her requiring a greater level of care than she previously had through the day care program. 39 The Tribunal accepts that the members of the family for whom KU speaks have a deep and loving relationship with their mother and wish to provide her with support. It is the case that the decision to move her to Forbes has isolated their mother from many of the kinds of interactions that might have been possible had she remained at Orange. On the other hand there is not a lot of evidence that there had been in recent times any great level of interaction with her by the family as a whole. 40 As to the suggestion that the eldest daughter, M, had been relatively uninvolved in her mother's care over the 30 years that had passed since her father's death, M was not present at hearing to answer the criticism. In any case it is clear from the material before the Tribunal that whatever may have once been the situation she is now providing substantial support to her mother through regular visits, and her mother is happy about that. 41 In closing KU made a number of criticisms of the practices of the Office of Public Guardian and expressed a number of views as to the way aged health care services are conducted and managed, including in relation to the administration of drugs. It is unnecessary to deal with those matters in this decision. 42 The Tribunal is satisfied on the material before it that the best interests of Mrs M are being served by the decision to place her in full time care at Jemalong. In that regard the Tribunal is influenced in particular by these factors – the consistent reports that Mrs M is content to be at Forbes and is happy with her eldest daughter being her primary support person from within the family; and the practical fact that there is no vacancy at Orange. 43 As noted earlier, the Tribunal accepts (as did Mr Conna) that a case can be made for her being located at Orange at a generally suitable facility such as Ozanam (the security consideration is not, the Tribunal considers, a major one in all the circumstances). At present there is no vacancy. If one were to arise the Public Guardian would then need to consider the appropriateness of a transfer given that Mrs M may well have happily settled in at Forbes and the trauma that may be associated with moving her. 44 In the Tribunal's view, the enmity that the group of eight feel towards their siblings over these issues and towards the Public Guardian will probably not dissipate. This is very much to be regretted. ORDER Decision under review affirmed.