Supreme Court New South Wales Medium Neutral Citation: Re B (No. 2) [2011] NSWSC 1264 Hearing dates: Monday, 10 October 2011 Decision date: 11 October 2011 Before: White J Decision: Refer to paras [49] and [50] of judgment. Catchwords: GUARDIANSHIP - whether plaintiff can properly be appointed as guardian - whether plaintiff fit a proper person to be appointed - whether appointment of plaintiff is in the person in need of guardian's best interests Legislation Cited: Guardianship Act 1987 Cases Cited: Re B [2011] NSWSC 1075 W v G [2003] NSWSC 1170; (2003) 59 NSWLR 220 Category: Principal judgment Parties: The Plaintiff (Plaintiff) NSW Trustee & Guardian (1st Defendant) Guardianship Tribunal (2nd Defendant) John (3rd Defendant) Mrs B (4th Defendant) South Eastern Sydney Local Health District (5th Defendant) Representation: Plaintiff - In person C Phang - 1st Defendant Submitting appearance - 2nd Defendant John - In person N/a - 4th Defendant I Bourke - 5th Defendant N/a - Plaintiff Public Trustee - 1st Defendant Crown Solicitor - 2nd Defendant N/a - 3rd Defendant N/a - 4th Defendant Crown Solicitor - 5th Defendant File Number(s): 2011/46118 Judgment 1HIS HONOUR : On 13 September 2011 I set aside all orders of the Guardianship Tribunal concerning the guardianship of the fourth defendant (Mrs B) that were then in effect. I ordered that the Public Guardian continue to exercise the functions of guardian pending the determination of these proceedings or earlier further order. 2The proceedings were stood over for further hearing of the plaintiff's claim that he be appointed Mrs B's guardian. The circumstances leading to those orders and the background to the present application are set out in my reasons for the orders given on 15 September 2011 ( Re B [2011] NSWSC 1075). I will not repeat the matters dealt with in those reasons. 3As there appears the question on the present application is whether the plaintiff can properly be appointed as his mother's guardian. If he can properly be so appointed, then the Public Guardian should not continue to exercise the functions of guardian. This is because of the policy reflected in s 15(3) of the Guardianship Act 1987 that, where possible, it is preferable to appoint as a guardian a family member or other person having a close personal relationship with the person in need of guardianship ( W v G [2003] NSWSC 1170; (2003) 59 NSWLR 220 at [26]). 4In the circumstances of this case the determination of that question required me to address the following issues. First, whether the plaintiff's character is such that he is a fit and proper person to be so appointed. 5Secondly, whether the plaintiff holds such fixed or firm views on medical issues that his mother's welfare would be at risk if he were so appointed. 6Thirdly, whether Mrs B would be at risk if the plaintiff could decide when and for how long she might be able to leave the nursing home, for example, to stay with the plaintiff in her own home. 7Fourthly, whether it would be contrary to Mrs B's welfare for her to change nursing homes, as that would be the plaintiff's intention if he were given the authority to make such a decision. 8Fifthly, whether relations between the plaintiff and the Garrawarra Aged Care Centre is such that Mrs B's welfare could be adversely affected if the plaintiff were appointed her guardian and she remained in that facility. 9Sixthly, whether the appointment of the plaintiff would not be conducive to preserving Mrs B's existing family relationships. 10In his second further amended summons the plaintiff sought in the alternative to an order that he be appointed the fourth defendant's guardian, an order that his brother Harry be given either solely or jointly with him the " care functions " of guardian. The " care functions " were listed as: " a. accommodation b. lifestyle c. activities/outings d. health care e. medical and dental f. services " 11This would appear to encompass all relevant functions. However, the plaintiff's brother Harry was not a party to these proceedings and there was no affidavit or other written consent from him to be so appointed. Nor had he previously sought appointment as guardian and there has been no investigation into his suitability to be so appointed. Accordingly, the focus of the hearing is on whether the plaintiff should be so appointed. 12The Public Guardian through the NSW Trustee and Guardian filed a submitting appearance. The South Eastern Sydney Local Health District that has the responsibility for the Garrawarra Aged Care Centre appeared. It did not oppose the plaintiff's appointment as guardian. Nonetheless, both the NSW Trustee and Guardian and the South Eastern Sydney Local Health District referred me to matters relevant to the decision which tend against appointing the plaintiff as his mother's guardian. The plaintiff's brother John also appeared and opposed the appointment. 13I turn to the first question, that is, as to whether the plaintiff is a person of a suitable character to be so appointed. The plaintiff's brother John submitted that he was not of suitable character. John read an affidavit sworn by him in 2007, the effect of which was to insinuate that the plaintiff had an inappropriate romantic relationship with his mother and that when Mrs B had stayed overnight at her home in the plaintiff's care in 2007, they shared the same bed. The plaintiff rejected these allegations and I accept his denial. 14John also submitted that the plaintiff's age, which I am told is 70, rendered the plaintiff unsuitable to be appointed. I do not agree. Over the two days of hearing that this matter has occupied, the plaintiff has demonstrated that he is mentally alert, intelligent and diligent, and has all the necessary faculties and knowledge to fulfil the role. 15John also submitted that the plaintiff does not have his mother's welfare at heart. He submitted that when the plaintiff had his mother in his care in 2006 he caused her to write three cheques totalling $31,550 and charged the sum of $1,200 per week for his mother's care. Apart from the tender of copies of the cheques signed by Mrs B and dated in June and September 2006, John adduced no evidence to support the allegation that the plaintiff had taken financial advantage of his mother. 16In his first affidavit the plaintiff deposed to having been paid $35,000 for expenses after Mrs B had been released into his care following a serious stroke in 2006. At this time John held a power of attorney for his mother. The plaintiff deposed that John had declined to pay expenses. He himself deposed to his mother's being happy to write a cheque. The plaintiff deposed that the sum of $35,000 was well short of the actual expenses he incurred. He gave evidence of discussions and as to the lack of agreement between the three brothers as to what was an appropriate amount for him to be paid in 2006. 17The evidence does not establish that the plaintiff sought to take or took financial advantage of Mrs B. I do not accept the submission made by John that the plaintiff is not a fit person to be appointed as Mrs B's guardian. On 24 July 2007 the Guardianship Tribunal appointed the Office of the Protective Commissioner as financial manager of Mrs B. An order appointing the plaintiff as Mrs B's guardian would not affect that order. 18The second question is whether the views held by the plaintiff on medical issues are such that his mother's welfare would be at risk if he were appointed her guardian. The current Nurse Manager or General Manager of the Garrawarra Aged Care Centre, Ms Paula McShane, deposed that a review of the file held in relation to Mrs B indicates that a number of concerns are held about the involvement of the plaintiff as decision-maker in respect of Mrs B's medical treatment and general care. She described these as being: "(1) Lack of consultation/communication with the Garrawarra Centre by [the plaintiff] demonstrated by: (a) Failure to advise of outside medical appointments; (b) Taking Mrs B from hospital without following discharge procedures or communicating with staff at the Garrawarra Centre ... (2) Intervention by [the plaintiff] in the medical care provided to Mrs B at the Garrawarra Centre against medical opinion particularly in relation to the administration of warfarin and blood testing ... (3) Issues raised by [the plaintiff] in relation to Mrs B's diet and weight and concerns she has not had sufficient food on return from outings with [the plaintiff] ..." 19Counsel for the South Eastern Sydney Local Health District fairly characterised these as " low level concerns ". 20The matters in paragraphs 2 and 3 quoted above go to the issue I am presently addressing. As to the matter in paragraph 2 quoted above, there was a deal of evidence and submissions about the desirability or undesirability of Mrs B receiving Warfarin to guard against the risk of stroke. The issue before me is not whether that medication is indicated in the circumstances or not. The issue is whether the plaintiff's views on the subject indicate either he is not a proper person to be appointed as guardian, or that there is a risk to Mrs B's welfare if he is so appointed by his intervening inappropriately in her medical care. Four doctors have recommended that Warfarin not be administered. That is so essentially for two reasons, namely that proper INR levels could not be maintained because Mrs B was not compliant in taking the medication and, secondly, the risk of haemorrhaging in the event of a fall. 21The plaintiff's position is that his mother is at a high risk of stroke, that the drug provides the best available protection against that risk, and that, provided her blood levels are properly monitored and doses adjusted, she should be given Warfarin. He points out that Mrs B suffered a serious fall when taking Warfarin but did not suffer a haemorrhage. He ascribes her refusal of medication to occasional poor nursing technique where Mrs B was, he said, inappropriately confronted by a particular nurse. Normally all her medications are ground up and administered in a thickened fluid. 22The plaintiff accepts the medical advice that in Mrs B's present situation, Warfarin should not be administered, but he considers that in a different environment it should be. 23Whether or not Warfarin is prescribed is a matter for Mrs B's doctors. It is not open to the plaintiff to make that decision however much he might urge a particular course. The plaintiff points out that whilst the latest medical opinions are that administration of the drug is not indicated, earlier medical opinions were to the opposite effect. 24The plaintiff's views are not irrational. It was suggested that the plaintiff might go " doctor shopping " if he were appointed as guardian until he found a doctor willing to prescribe the drug. Clearly, with a 94-year old woman there are risks in whatever course is adopted. It is clear that the plaintiff has his mother's best interests at heart. Whilst I do not doubt that the plaintiff will urge his views as to the appropriate medication on the treating doctor or doctors, there is no basis on which to conclude that any doctor would not properly reach his or her own conclusion as to the medication to be prescribed after weighing the risks and benefits of each course and the practicality of administering the drug. I do not think that the plaintiff's views are so entrenched that he would act in a way contrary to current medical opinion. 25It must also be recognised that the current medical opinions have been expressed in relation to the administration of Warfarin to Mrs B in her present situation and, as I observed in my previous judgment, the plaintiff accepts that that is appropriate as matters presently stand. 26The further issue raised was as to the plaintiff's resistance to his mother's being given a Norspan patch as pain relief. The plaintiff's opposition to that course was not blind. He said that a Norspan patch is a morphine derivative and that Mrs B does not tolerate its side effects. There was support for that in the nursing notes of 10 January 2010. Mrs B was receiving other medication for pain relief and there is a suggestion in the notes of 17 January 2010 that the plaintiff himself removed a patch that had been applied by the Garrawarra Centre. On 24 January 2010 he demanded that the patch be removed. It was. There is no record in the material before me of this having resulted in increased pain or having had an otherwise adverse outcome for Mrs B. 27Again, it is clear that the plaintiff has acted in what he regards as his mother's best interests. It does not appear that his intervention in this respect was adverse to her interests. 28In my view, the plaintiff is not likely to ignore medical advice in relation to appropriate pain relief provided that the doctor explains his or her reasons for prescribing particular medication and takes account of Mrs B's demonstrated tolerance or intolerance of a particular drug. 29As for the matters raised in paragraph 3 quoted above at [18], the plaintiff expressed concern that weight gain would put Mrs B at higher risks of having a cardiovascular attack again. He also urged that she not be given a high fat diet when not on Warfarin. 30On two occasions this year Mrs B was given extra food at dinner at Garrawarra Centre after she had been out with the plaintiff during the day. She was apparently hungry and readily consumed the extra food. Concern that Mrs B might not be adequately fed would have particular weight if the plaintiff were to have care of his mother for extended periods away from the nursing home. However, where Mrs B is now placed and wherever she is placed in the future, the plaintiff's views about her diet are of lower significance. 31In 2009 Mrs B stayed with the plaintiff at her home for days at a time. The plaintiff said, and I accept, that now he could not look after her overnight as she can no longer shower or toilet herself independently. In other words, as Mrs B will be residing in a nursing home, I do not think that any over-solicitous concern for the plaintiff about her diet would be likely to adversely affect her welfare. Essentially, she will be fed by the nursing home. 32For the same reasons, I do not think that there are concerns that Mrs B might be at risk by the plaintiff's assuming longer term care of her on his own. 33The nursing notes produced by Ms McShane include some reference to concerns held in 2008 or 2009 about the administration of medication by the plaintiff. On the whole, I think the plaintiff has demonstrated that his care for his mother has been very beneficial to her. But in any event, it is clear that Mrs B will, in the future, have to reside in a nursing home and not in her own home under his care. 34In summary, I conclude that the plaintiff's views on medical issues would not place Mrs B's welfare at risk if he were appointed her guardian. Indeed, I think that the plaintiff's review of the medical issues and the care he has taken to investigate them indicate his solicitude for his mother's welfare. 35I turn to the fourth issue identified earlier, whether it would be contrary to Mrs B's welfare for her to change nursing homes. The plaintiff gave evidence of his having inspected a newly opened nursing home at Sylvania that has a high level facility for dementia patients. He spoke glowingly of the facility and said that it appeared that a bed would be available if it could be taken up in the near future for his mother. If a bed remains available and if finances permit, it is clear that the plaintiff would want his mother to be moved to that facility. 36It was submitted by counsel for the South East Sydney Local Health District and by John that it would not be in Mrs B's interests for her to be moved from the nursing home in which she has lived and been settled for four years to a new facility. The materials do not permit me to make an assessment about that one way or the other. It appears from the report of the Public Guardian prepared in April 2010 in response to the plaintiff's request that Mrs B's accommodation be changed, that Mrs B was receiving an adequate level of care at the Garrawarra Centre. The same report stated that a geriatrician had advised that a transfer to another facility would not be detrimental to her. In my view, the question of whether Mrs B's interests would be best served by a change of residence is a matter that her guardian should decide. It is not the case that it would clearly be adverse to her interests for her to change her residence such that it would not be appropriate to appoint the plaintiff as guardian if that is the likely consequence of the appointment. 37If Mrs B remains in accommodation at Garrawarra then I accept that an order appointing the plaintiff as her guardian could result in continuing and possibly increased tensions between the plaintiff and the nursing managers of that facility. This is a matter alluded to in paragraph 1 which I quoted above from the affidavit of Ms McShane. 38The nursing notes record that on 15 December 2008 the plaintiff refused to advise the nursing staff the date and time of a cardiology appointment for Mrs B. The nursing notes for the Tuesday 24 February 2009 stated that the plaintiff had collected Mrs B from Sutherland Hospital without following that hospital's discharge procedures. Mrs B had been admitted to Sutherland Hospital to remove a lump on the back of her neck. The plaintiff took Mrs B to her home after the operation and he deposed that she enjoyed the comfort of her familiar surroundings and was quickly restored. According to the nursing notes, he advised on Tuesday 24 February 2009 that he would return his mother to Garrawarra Centre on the Friday or Saturday, that is a stay of three or four days. She was not returned until 2 March 2009 (six days). 39There was controversy about his mother's return. It appears that the Garrawarra Centre contacted the Public Guardian's office and it appears that the Public Guardian's office threatened to call the police. The orders of the Tribunal at that time provided that the guardianship functions vested in the Public Guardian did not include decisions about stays of up to one week away from Mrs B's residence at Garrawarra. This event was inevitably the cause of real tension between the plaintiff and the Garrawarra Centre and the plaintiff and the office of the Public Guardian. However, when the plaintiff returned his mother to the Garrawarra Centre on 2 March 2009, he asked the centre to document how well she was. There seems to be no issue that she had been well cared for and was in good health having regard to her circumstances. 40Whilst this material shows the existence of such tensions, my review of the nursing notes also shows that the communications between the staff at the Garrawarra Centre and the plaintiff were conducted professionally. It also appears that Mrs B's welfare was not adversely affected by these tensions. That is consistent with the professional approach which is to be expected. Thus, while I accept that if Mrs B remains at her present residence but the plaintiff is appointed her guardian, tensions of the kind that have existed in the past might well arise in the future, I think it probable that such tensions would be handled in a professional manner and I am sure that the level of care that will be provided to Mrs B by staff at the Centre would not be compromised merely because an order was made making the plaintiff her guardian. Nor do I think that the plaintiff would do anything that might jeopardise his mother's welfare. 41The plaintiff, although clearly holding firm opinions, is courteous and civil in manner, and rational. I see no reason why the relationship between him and the staff at the Garrawarra Centre would not be conducted appropriately on both sides. 42The sixth issue is whether the appointment of the plaintiff would not be conducive to preserving Mrs B's existing family relationships. There is no reason to think that Mrs B's relationships with the plaintiff or with her son Harry would be affected if the plaintiff were appointed her guardian. However, it is clear that if that appointment is made, it will be resented by the plaintiff's brother John. There is a question then as to whether such an order might adversely affect Mrs B's relationship with her son John. It may also be relevant whether or not the order would adversely affect the relationship between the brothers. 43John stated that his mother did not recognise him when he visited. He rarely visits her as he finds the visits distressing. He has visited Mrs B only once this year. His previous visit was a year before that. 44There will be no reason that John could not visit his mother if the plaintiff were appointed his mother's guardian. If the plaintiff is given the same functions as the Guardianship Tribunal gave to the Public Guardian, then those functions would not extend to the plaintiff's being able to veto persons who could visit his mother. In any event, as the plaintiff said, he would have no reason to seek to prevent his brother from visiting his mother. 45I do not think that appointing the plaintiff as guardian would significantly adversely affect such relationship as there might still be between Mrs B and John. As to relations between the brothers, I think that can only be a very minor consideration, as the paramount concern is what is in Mrs B's interests. Suffice to say that relations between the plaintiff and his brother John are already broken and are likely to remain so, irrespective of what orders are made. 46In my earlier reasons I said (at [78]) that on the material then provided by the plaintiff, there was a powerful case for saying that he has acted in his mother's best interests in the past and has devoted himself to a very considerable extent to his mother's welfare. I observed that his brother Harry supports his application and that he has produced testimonials as to his fitness, including one from a cousin who is a professor of medicine. 47The plaintiff's cousin said: " From my perspective [the plaintiff] has been a devoted and caring son looking after his mother particularly during her rehabilitation following a severe stroke. From my knowledge he has always acted in her best interests for her overall care and medical treatment. As a Professor of Medicine and particularly dealing with long-term illness ... family integration into the medical decision making is vital for excellence of care especially in chronic conditions such as my aunt's situation. Family exclusion cannot provide optimal care ... I regard him as reliable, competent and capable of making decisions after listening to sound medical advice. " In my view, the materials in this case support that assessment. 48The plaintiff has displayed commendable filial devotion. I am satisfied that he is a proper person to be appointed as Mrs B's guardian and that it is in her best interests that he be so appointed. 49Subject to hearing from the parties and their legal representatives as to the appropriate precise form of the orders to be made, I propose to make the following orders: 1. Order that order 4 made on 15 September 2011 be discharged. 2. Order that the plaintiff be the fourth defendant's guardian. 3. Order that the plaintiff have the following functions in relation to the fourth defendant: (a) Accommodation - to determine where the fourth defendant may reside; (b) Activities/Outings - to make decisions in relation to the fourth defendant's participation in any activities outside the care facility at which she resides including, but not limited to, decisions as to the nature and duration of such activities and persons who will be accompanying the fourth defendant on such activities; (c) Health Care - to determine what health care and major or minor medical and dental treatment the fourth defendant may receive; (d) Medical and Dental consent - where the fourth defendant is not capable of giving a valid consent to her own treatment make substitute decisions on her behalf about medical or dental treatment proposed to her by others under the provisions of part 5 of the Guardianship Act ; (e) Services - to make decisions on her behalf concerning major services to which she should have access. 4. Order that the exhibits may be returned after 28 days. 5. These orders may be entered forthwith. [Parties addressed.] 50I make those orders. I also note that these orders do not affect orders made under the Guardianship Act in relation to financial management of the fourth defendant's estate. I make no order as to costs. [The plaintiff addressed further on costs.] 51In this matter I have ordered that there be no order as to costs of the proceedings. The proceedings are brought by the plaintiff in his personal capacity, but for the benefit of Mrs B. The plaintiff sought an order to waive or remit the filing fees and hearing fees and any other fees that he has incurred in bringing this application. He points out that the application is necessary because of errors that were made in the Guardianship Tribunal. He has been the successful party. Notwithstanding that he has been the successful party, I have not made an order for payment by any person of his costs. The reasons for that are that this is a matter in the protective jurisdiction. The NSW Trustee and Guardian filed a submitting appearance and adopted a submitting position. The South Eastern Sydney Local Health District did not oppose the orders sought, although it raised matters that were adverse to the claim. Nonetheless, it was not a party at the first hearing and I do not think it appropriate to make an order for costs against it in relation to the further hearing of the matter. Nor did I make an order for costs against the plaintiff's brother John. He also did not participate at the first stage of the proceedings and his involvement did not materially lengthen the hearing. 52The plaintiff submits that it would not be fair for him to have to bear the costs of being involved in this litigation, given that he has taken a position which is protective of his mother's interests. There is considerable force in that submission. 53The filing and hearing fees are payable to the Registrar of the Court (see Civil Procedure Regulation 2005, cl 7(1)(a)). Clause 11 of that Regulation provides: " 11 General power to waive, postpone and remit fees (1) The registrar of the court may, by order in writing, direct that the whole or any part of any fee payable to the registrar be waived, postponed or remitted, subject to such conditions (if any) as the registrar thinks fit to impose. ... (3) The powers conferred by this clause are to be exercised in accordance with such guidelines as may from time to time be published by the Attorney General." 54The guidelines published by the Attorney-General include: " Relevant considerations ... The decision-maker can consider any relevant matter including: Any orders or recommendations made by the court e.g. orders in relation to vexatious litigants and recommendations to remit fees Whether the payment of the fee will cause the applicant undue financial hardship The reason why the service is required The need for procedural fairness for litigants in person Whether the person is under 18 years of age, if the application relates to fees being charged in criminal proceedings Whether the person is in custody Any compassionate grounds Whether a viable alternative exists for providing the service e.g. the applicant can view the documents or transcripts at the registry. " 55One of the matters that the Registrar can consider in exercising the power under clause 11 are recommendations made by the Court, including recommendations to remit fees. In this case where the plaintiff has been put to expense not for his personal benefit, but for the benefit of a disabled person, and has been put to expense by reason of errors made by the Tribunal, I would think it an appropriate case for the fees to be remitted, if that can be done consistently with the Registrar taking into account other relevant considerations. I make that recommendation. 56The plaintiff will no doubt bring that to the attention of the Registrar if he makes an application to the Registrar for waiver or remission of the fees. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 26 October 2011