KF v Public Guardian and anor [2009] NSWADTAP 23

Appeal Panel - External

CITATION: KF v Public Guardian and anor [2009] NSWADTAP 23

APPELLANT KF

PARTIES: 1st RESPONDENT Public Guardian

2nd Respondent KG

FILE NUMBER: 088017

HEARING DATES: 2 March 2009

SUBMISSIONS CLOSED: 2 March 2009

EXTEMPORE DECISION DATE: 2 March 2009

DATE OF DECISION: 16 April 2009

BEFORE: Hennessy N - Magistrate (Deputy President)

CATCHWORDS: Application for leave to appeal against the merits, whether evidence that was allegedly incorrect or out of date would have led to a different conclusion

DECISION UNDER APPEAL: Renewal of limited guardianship order

FILE NUMBER UNDER APPEAL: C/36499, 2007/4810

DATE OF DECISION UNDER APPEAL: 07/25/2008

K v K [2000] NSWSC 1052 CASES CITED: S v S [2001] NSWSC 146 Re R [2000] NSWSC 886

APPLICANT In person REPRESENTATION: RESPONDENT No appearance

ORDERS: Leave to appeal against the merits of the Guardianship Tribunal's decision is refused.

Section 126 of the Administrative Decisions Tribunal Act 1997 applies to this decision. Section 126 provides (1A) This section applies only to the following: (a) proceedings in the Community Services Division of the Tribunal, (b) appeals to an Appeal Panel from a decision made by the Tribunal in the Community Services Division, (b1) proceedings in relation to an external appeal made under section 67A of the Guardianship Act 1987 or section 21A of the Protected Estates Act 1983, (b2) proceedings in relation to a reviewable decision made under the Guardianship Act 1987 or the Protected Estates Act 1983 (c) such other proceedings (or class or classes of proceedings) as may be prescribed by the regulations for the purposes of this section. (1) A person must not, except with the consent of the Tribunal, publish or broadcast the name of any person: (a) who appears as a witness before the Tribunal in any proceedings, or (b) to whom any proceedings before the Tribunal relate, or (c) who is mentioned or otherwise involved in any proceedings before the Tribunal, whether before or after the proceedings are disposed of. Maximum penalty: 10 penalty units or imprisonment for 12 months, or both. (2) This section does not prohibit the publication or broadcasting of an official report of the proceedings that includes the name of any person the publication or broadcasting of which would otherwise be prohibited by this section. (3) For the purposes of this section, a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person. REASONS FOR DECISION 1 The following is an anonymised version of the transcript of the oral reasons for decision given on 2 March 2009. 2 KF has applied for leave to appeal against a decision of the Guardianship Tribunal made on 25 July 2008. That decision was to make a guardianship order in relation to KG for a period of three years and to appoint the Public Guardian as her guardian. The background to these proceedings is that KF first met KG in 1996 and became her carer in November 2004. KG is 75 years old and has been diagnosed with schizophrenia, depression and dementia. Following a fall in September 2007, she was admitted to hospital and then transferred to a nursing home. KF wants KG to live with him in his home and for him to be her carer. 3 On 17 November 2008, KF applied for leave to appeal against the merits of a decision of the Guardianship Tribunal. The orders that the Guardianship Tribunal made on that occasion were: 1) KG shall remain under guardianship 2) her guardian shall continue to be the Public Guardian This is an order for continuing guardianship for a period of 3 years from the date of this order or until the Tribunal varies, suspends, or revokes the order at an earlier date on request or at its own initiative. 4 The Guardianship Tribunal made a limited guardianship order and gave the Public Guardian functions in relation to accommodation, health care, medical and dental consent, services and access. An order was originally made on 26 July 2007 for 12 months, appointing the Public Guardian as KG's guardian. Following that order the Guardianship Tribunal varied the decision on 19 October 2007 to include a coercive function relating to accommodation. 5 KF has a right to appeal against a decision of the Guardianship Tribunal on any question of law or by leave of the Appeal Panel hearing the appeal on any other ground pursuant to section 118(B) of the Administrative Decisions Tribunal Act 1997. KF appealed only on the merits, not on a question of law. As this is an interlocutory decision it can be determined by a single member of the Appeal Panel. The appeal was lodged more than 28 days after the Guardianship Tribunal provided written reasons of their decision but pursuant to section 118B(2) I have accepted it even though it was lodged out of time. 6 I should emphasise that the appeal made in respect of the out of time decision was made in respect of the 25 July 2008 decision not in relation to the previous decision in July 2007. The parties to these proceedings were KF, who was self-represented and KG who was not represented. The Tribunal did endeavour to obtain representation for her from The Aged Care Right Service, however due to a conflict they were unable to represent her. Given that this was an interlocutory application on a question of leave the Tribunal did not make any further attempts to obtain representation for KG. If leave had been granted we would have done so. While the Public Guardian is also a party to the appeal she chose not to play any role in the proceedings. The Tribunal itself is entitled to be a party and Ms Cho represented the Tribunal. 7 The principles for granting leave on the merits are not set out in the Administrative Decisions Tribunal Act. However, the Supreme Court has provided some guidance on this question in the decisions of K v K [2000] NSWSC 1052, S v S [2001] NSWSC 146 and Re R [2000] NSWSC 886. Those cases interpret section 67 of the Guardianship Act 1987 which is the equivalent provision in relation to appeals from Tribunal decisions to the Supreme Court. Justice Young observed in K v K that, "It has never been clearly decided what the circumstances are that should lead the Court to grant leave to appeal under section 67," but went on to make a number of observations on that point at paragraphs 10 to 15. 8 KF's grounds of appeal were, in essence, that several witnesses at the hearing on 26 July 2007, when the Public Guardian was first appointed, gave evidence which he said was incorrect or out of date. He highlighted evidence given by social workers at Fairfield Hospital, a social worker attached to the Aged Care Assessment Team at Westmead Hospital and a community case manager with Wesley Mission Community Support. In relation to one of the social workers at Fairfield Hospital, KF said that she failed to produce a doctor's report after 11 November 2004 in relation to KG's medical history and that she only knew KG for 7 to 9 days before giving evidence. KF also said that the social worker made an allegation against him when he had not even met her until the day of the hearing. In relation to another social worker, KF objected to evidence she gave that he had not given KG her medication and that she had obtained that information from a particular person. On asking that person about that matter, KF said that she told him that she did not even know the social worker. 9 In relation to the social worker at Westmead, KF reported to her that he could not look after KG. KF agrees that he made that comment in 2001 but said that he has not seen that social worker since then. In relation to the case manager at Wesley Mission, KF said that she did not see the sore on KG as this had taken place when she was in a nursing home in 2001 and related to a period before KF became KG's carer. KF also complained about conditions and facilities at the nursing home which he said constituted a safety hazard. 10 Each of KF's concerns related to evidence given in the 2007 hearing, not in the 2008 hearing. KF said that the Guardianship Tribunal continued to rely on that false evidence in the later hearing but, in our view, the Tribunal went back to the original elements that it had to establish and looked at the current evidence in relation to those elements before it came to its conclusion. 11 The only matter which KF objected to, in relation to the most recent decision, was a comment by the Deputy Director of Nursing at the Nursing Home, recorded at page 20 of the transcript, where she said, "And the - regarding the clothes, KF made no attempt to bring any clothes in and the clothes that [KG] did have when she - they were brought in, were unwearable." Following that evidence, the Presiding Member said, "Thank you for that I think we need to have a break now so we can make a decision." KF says that he brought in at least 33 items of clothing for KG and that he washed her clothes and brought them back in clean for her to wear. 12 Even if KF is correct, and the Guardianship Tribunal relied on incorrect evidence given by the Deputy Director of Nursing, in my view that would have made no difference to the Guardianship Tribunal's decision. The Guardianship Tribunal looked at all the evidence and decided, in accordance with section 25(C) when reviewing a guardianship order, to confirm that order in accordance with the principles set out in IF v IG [2004] NSWADT AP 3. Even though the Guardianship Tribunal did not refer directly to that case, they abided by the principles set out in paragraphs 24 to 27 in determining what action they should take on review. 13 KF cannot bring an appeal against the Tribunal's decision of 2007 because he is out of time to lodge an appeal in relation to that matter. In relation to the most recent decision, KF has pointed only to alleged misinformation about whether he provided clothing. As I said, even if the Guardianship Tribunal had accepted that KF had provided inadequate clothing for KG, it would have made no difference to the Guardianship Tribunal's decision. 14 KF did not identify any broad question of administration or policy that would justify the appeal being extended to the merits of the Tribunal's decision, nor am I persuaded that the Tribunal went about its fact finding exercise in an unorthodox manner or in a way that was likely to produce an unfair result. On the contrary, the Tribunal set out the evidence clearly and gave cogent reasons for its decision. The real issue for KF is that he wants KG to live with him and he believes that she is very unhappy in the nursing home. As I said to KF on a previous occasion, he needs to persuade the Public Guardian that he can look after KG adequately. I know he says he has tried to do that but they are unable to assess her unless she is actually living with him. His remedy at this stage is not against the Guardianship Tribunal's decision itself but to the Public Guardian to request that KG be moved to live with him if he can prove that he is able to give her the care which she needs. I HEREBY CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF THE ADMINISTRATIVE DECISIONS TRIBUNAL. REGISTRAR