Lo v Public Guardian [2009] NSWADT 138

CITATION: Lo v Public Guardian [2009] NSWADT 138

DIVISION: General Division

APPLICANT LO PARTIES: RESPONDENT Public Guardian

FILE NUMBER: 093025

HEARING DATES: 7 May 2009

SUBMISSIONS CLOSED: 7 May 2009

DATE OF DECISION: 12 June 2009

BEFORE: Millar J - Judicial Member

LEGISLATION CITED : Guardianship Act 1987 Administrative Decisions Tribunal Act 1997

APPLICANT In person REPRESENTATION: RESPONDENT C Phang, Solicitor

ORDERS: The decision of the Public Guardian affirmed

REASONS FOR DECISION History 1 On 3 February 2009 LO filed an application with the Tribunal for review of a decision made by the Public Guardian to leave his mother resident at the Blacktown Aged Care Centre. LO requested the Public Guardian that his mother be moved to reside at Merrylands Aged Care Centre at Greystanes. 2 In 2008 LO's brother and sister made application to the Guardianship Tribunal for guardianship and financial management orders in relation to their mother. On 19 August 2008 the Public Guardian was appointed as their mother's guardian for a period of 12 months to make decisions on her behalf concerning her accommodation, healthcare, medical and dental treatment, services and access as set out in the Tribunal's Order. On the same day the Protective Commissioner was appointed as financial manager for LO's mother. 3 On 20 October 2008 the Public Guardian made a decision that LO's mother be discharged from Springwood Hospital to the Blacktown Aged Care Facility. The reasons for this decision were set out in a report dated 18 November 2008 by Kalpana Sriram, Principal Guardian of the Office of the Public Guardian. On 8 December 2008 LO requested a review of that decision upon the grounds set out in his letter to the Office of the Public Guardian dated 8 December 2008. He requested that his mother be moved to the Merrylands Aged Care Centre. 4 On 16 December 2008 LO wrote to the Tribunal seeking review of the decision of the Office of the Public Guardian. 5 On 23 December 2008 LO was informed of a decision made by Patricia Davidson assistant director - operations of the Office of the Public Guardian. Ms Davidson conducted an internal review of the original decision made 18 November 2008 and for the reasons set out in her decision report dated 18 December 2008 Ms Davidson decided to affirm the original decision to locate LO's mother at Blacktown Aged Care Facility. 6 Subsequently LO made application to the Tribunal for review of that decision. Legislation 7 Section 80A of the Guardianship Act 1987 provides that an application may be made to the Tribunal for a review of a decision of the Public Guardian made in connection with the exercise of the Public Guardians functions under the act as a guardian and which is a decision of a class prescribed by the regulations for the purposes of Section 80A. Regulation 14A of the Guardianship Regulations provides that all decisions of the Public Guardian in connection with its functions are prescribed for the purpose of Section 80A of the Act. Accordingly, the decision made by the Public Guardian concerning LO's mother is a decision in respect of which an application may be made for review to the Tribunal. 8 Section 80A (2) provides for the class of persons who may make an application for review of such a decision. No issue was raised at the hearing concerning LO's standing to apply for review of the decision. The Tribunal was satisfied that he is a person whose interests are adversely affected by the decision under review. 9 In conducting the review of the relevant decision in this matter Section 63 of the Administrative Decisions Tribunal Act 1997 requires that the Tribunal determine whether the Public Guardian has made the "correct and preferable decision" having regard to the material then before the Tribunal including any relevant factual material and any applicable written or unwritten law. Further, for the purpose of the review the Tribunal may exercise all of the functions conferred upon the public Guardian being the original decision maker. 10 In conducting the review the Tribunal is required to observe the principles set out in Section 14(2) of the Guardianship Act 1987. Applicant's Submissions 11 LO appeared at the hearing and made oral submissions. The Tribunal also took into account as evidence the material contained in his letters by which he sought review of the various decisions which have been made concerning his mother. In his letter dated 8 December 2008 to the Office of the Public Guardian LO noted that although there was a vacancy for his mother at Merrylands Aged Care Centre at Greystanes when she originally required care the guardian placed her at Blacktown Aged Care Centre. LO and his family live within walking distance of Merrylands Aged Care Centre. Accordingly, visiting his mother for him and his family would be easy and would enable frequent visits to be made. He said that his family would be able to deliver home cooked food to his mother three times a day and his children could visit her regularly. Given the location of the Aged Care Centre LO noted that the extended family would also have no difficulty visiting his mother. 12 LO provided a letter from Merrylands Aged Care Centre by Ms J Mock, Care Managed dated 2 December 2008 and a letter from Deryk Shell dated 30 November 2008 which was supportive of LO's application for his mother to be relocated to the Merrylands Aged Care Centre. 13 By letter dated 16 December 2008 addressed to the Tribunal LO applied for review of the Public Guardians decision. In this letter he recorded that his mother is 90 years of age and had lived with his sister for the last few years. Prior to that time his mother had been living with his elder brother in Brisbane who was also his mother's attorney under a power of attorney. 14 LO referred to conflict which had developed between him and his sister which it appears was at least in part responsible for the commencement of proceedings for Guardianship and Financial Management Orders. LO said in his letter that the conflict between him and his sister had lead to their mother being placed at the Blacktown Aged Care Facility upon the basis that it was about half way between his residence and that of his sister. LO conducts a retail liquor business in Penrith with varying hours of trade. He has found it difficult to see his mother of a morning given his work commitments. He has provided breakfast to his mother and his wife has also attended upon his mother to ensure that her needs are being met. He advised that most of his mother's other relatives including nieces and nephews lived in south western Sydney or near Parramatta and were supportive of his mother being placed at Merrylands Aged Care Facility. 15 LO recorded in his letter that at no time had he questioned the services provided by the Blacktown Aged Care Centre or any other Aged Care Facility. He advised that the standard of service provided at the Merrylands Aged Care Facility would be the same as was available to his mother at Blacktown. The difference is that she would be located closer to him and his family which would enable him to guarantee much more frequent and substantial contact between his mother, himself and his other family members. 16 In his oral evidence LO informed the Tribunal that his mother is presently located in a three person room, having previously been located in a four person room. If she was located to the Merrylands Aged Care Facility she would have her own room. He advised that his mother is very lonely at the Blacktown Facility. He sees her about once or twice a week as does his wife. He advised that his mother is unhappy at that facility and that the Public Guardian has been opposed to allowing outings for his mother while living there. 17 In support of his application for review LO provided an affidavit which was entitled "in the Federal Magistrates Court of Australia" showing the parties as his mother being the applicant and "NSW Guardianship Tribunal" as respondent being sworn on 5 August 2008 with the assistance of an interpreter. The affidavit was not signed but appeared to have a finger print presumably of LO's mother. By this affidavit LO's mother was asking for the Guardianship Tribunal to take into account her views as expressed in the affidavit and to have her son LO appointed as her guardian. Respondent's Submissions 18 The Public Guardian was represented by Ms Phang. Ms Phang confirmed that the Tribunal had been provided with the documents required by Section 58 of the Administrative decisions Tribunal Act 1997. Ms Phang relied upon the reasons for decision of the original decision maker dated 18 November 2008 and the reasons for decision provided by the review officer in relation to the review completed on 18 December 2008 and conducted by Ms Patricia Davidson. 19 Ms Davidson was present at the hearing and gave evidence to the Tribunal. In her review of the original decision completed on 18 December 2008 Ms Davidson recorded that LO's mother had been assessed as having a significant disability which required her location in an Aged Care Facility. She noted conflict between LO and his sister about the location of the particular facility. Ms Davison had been advised by a social worker from Springwood Hospital that the Blacktown Aged Care Facility had a multicultural patient mix and about a dozen staff who can speak Hindi being the language spoken by LO's mother. Blacktown Aged Care Facility had originally been recommended by reason of its central location to all of the children who live in Sydney. 20 Ms Davidson noted in her report that both LO and his sister although in conflict with each other have continuing relationships with their mother. They have a concern for their mother's welfare and have a significant bond with her. Ms Davidson noted that there was no evidence that the Blacktown Aged Care Facility was failing to meet any of their mother's needs. 21 Ms Phang submitted on behalf of the Public Guardian that the decision under review should be affirmed for the reasons set out in the report of the original decision and the review decision. Reasons and Decision 22 In addition to the written evidence provided to the Tribunal oral evidence was called from Ms Davidson by the Public Guardian. Ms Davidson advised that she had recently spoken to the residential Manager at Blacktown Aged Care Facility. The residential manager confirmed that LO's mother was very happy there and that she did not want to move from the facility. Ms Davidson advised that there was nothing to suggest that LO's mother was unhappy or unsettled at the facility where she has now been living for about 8 months. 23 The Tribunal noted from the documents provided to it that LO's mother has a substantial medical history having suffered from dementia, osteoporosis, hypertension, diabetes mellitus type 2 and a previous fracture of the right knee. She is also said to have cognitive impairment and confusion and requires substantial assistance with all aspects of her care. She apparently lacks insight into her own medical and care needs. These disabilities lead to her being placed under guardianship to ensure that the appropriate decisions can be made to promote her health and well being. 24 LO was assisted at the hearing by Dr Selva Mudaliar who is not related to LO. He is a physician and a tutor in medical law and is a specialist in rehabilitation medicine. He provided a report to the Tribunal dated 7 March 2009 in relation to the capacity of LO's mother to make decisions concerning her place of residence. Since LO's mother is the subject of a guardianship order and decision making concerning her accommodation has been given to the Public Guardian the Tribunal, although finding the report informative and helpful, was not able to make use of the report to resolve the particular question raised by the application for review, namely whether the decision to leave LO's mother at the Blacktown Aged Care Facility was the correct and preferable decision. 25 In the course of the hearing LO's sister informed the Tribunal that while her mother was presently in a room of three residents at the Blacktown Aged Care Facility her mother did not wish to be in placed in a single room because she would be lonely. She advised that she sees her mother every day and that her mother can go to her home or to a shopping centre from time to time. She advised that her mother is happy where she is presently living. She was lonely when she first went to the facility as she did not know anybody but she has now become well settled. This evidence was disputed by LO who informed the Tribunal that his sister was not telling the truth. 26 In determining the matter the Tribunal must have regard to the welfare of LO's mother as the paramount consideration. The evidence of Ms Davidson based upon information provided to her by the Residential Manager at Blacktown Aged Care Facility is consistent with the evidence of LO's sister that Lo's mother is happy at her present place of residence. It appears that she has become well settled at the facility. Tribunal noted LO's agreement that the service provided to his mother was not different in any material way to that which would be provided to her at the Merrylands Aged Care Facility. It seemed that the difference between the two facilities was the distance at which they are located from LO's home with the consequence that visiting his mother is much less convenient at Blacktown than it would be at Merrylands. 27 Having regard to the fact that there is no suggestion of any deficiency in the service provided to LO's mother at the Blacktown facility, the fact that LO's mother can be visited by all family members at that facility although it is located better to some members of the family than others and in view of the fact that LO's mother has become well settled and is happy at the facility the Tribunal was not satisfied that LO's mother should be removed from that facility and relocated at the Merrylands Aged Care Centre. Having regard to the evidence that LO's mother suffers from dementia and has experienced confusion it may be that removal from one facility to another after LO's mother has become familiar with the first facility and apparently become contented living at that facility may well be detrimental to her health and wellbeing. 28 For these reasons the Tribunal was satisfied that the decision made by the Public Guardian was the correct and preferable decision. Conclusion 29 For these reasons the Tribunal was satisfied that the decision under review should be affirmed.