Administrative Decisions Tribunal New South Wales Medium Neutral Citation: ALE v Public Guardian [2012] NSWADT 250 Hearing dates: 14 November 2012 Decision date: 29 November 2012 Before: Judge K P O'Connor, President Decision: Decision under review affirmed Catchwords: GUARDIANSHIP - Review of decision as to Appropriate Care Facility - Decision affirmed Legislation Cited: Administrative Decisions Tribunal Act 1997 Guardianship Act 1987 Category: Principal judgment Parties: ALE (Applicant) Public Guardian (Respondent) Representation: In person (Applicant) M Dalla-Pozza, Crown Solicitor's Office (Respondent) File Number(s): 123231 REASONS FOR DECISION 1The applicant has applied to the Tribunal under s 80A of the Guardianship Act 1987 for review of a decision of the Public Guardian to place her mother (Mrs R) in permanent care at the Legacy Aged Care - Norah Head (the facility). 2The applicant is the eldest of Mrs R's three daughters. It is not disputed that she is a person whose interests are adversely affected by the decision (see s 80A(2)(d) as to who can bring applications for review). 3The applicant accepts that her mother needs a managed care environment. The issue is the choice of facility. Background 4In 2006 Mrs R began to manifest signs of dementia marked at that time by memory loss. She gave an enduring power of attorney to her three daughters. She was widowed at the age of 82 in 2010. At that time she was diagnosed with dementia of the Alzheimer's type. 5Because the sisters could not agree on the future care needs of their mother, the applicant initiated the proceedings that led to the making of a Guardianship Tribunal order on 6 August 2010 for one year under which the Public Guardian was appointed as her statutory guardian with the functions of making decisions about Mrs R's accommodation, health care, medical and dental consent and services. The order was renewed on 8 August 2011 for three years. 6After three periods of short term respite care at the facility during 2011 and 2012, on 25 June 2012, the Public Guardian's case officer, Ms Helen Earlam, made the following decision on behalf of the Public Guardian: To agree to a period of respite at the facility starting 2 July 2012 and to accept, if offered, a permanent placement at that facility. 7On 27 June 2012 the applicant applied for an internal review. The Public Guardian personally confirmed the decision on 19 July 2012. On 20 August 2012 the applicant applied to the Tribunal for external review of the decision. The Tribunal heard the case on 14 November 2012. 8On 2 September 2012 the facility offered a permanent place, and the Public Guardian accepted it. 9The applicant's firm view is that the Norah Head facility is inadequate, and that her mother would be better cared for if she were to be relocated to South Australia to a town near where the review applicant lives. The applicant has lived with her husband on the Yorke Peninsula since 1978. She proposes as the alternative the Elanora Aged Care Facility run by Eldercare (Uniting Church), located at Stansbury on the Southern Yorke Peninsula. As a fall back, she is of the view that another facility in the Lake Macquarie region is preferable to the Norah Head facility - the Whiddons Belmont Aged Care Facility. 10Her two sisters are opposed to any move to South Australia. They each have children, as does the applicant. If their mother were moved to South Australia she would, they consider, be deprived of easy contact with most of her family. She would also be cut off from contact with her old friends in the region. As between Norah Head and the Belmont facility, they prefer Norah Head. 11Following review, the Tribunal is directed to make the correct and preferable decision in all the circumstances, having regard to all relevant material. It may affirm, vary or set aside the decision under review, make a decision in substitution or remit it to the administrator for reconsideration. See generally, Administrative Decisions Tribunal Act 1997, s 63. Material before Tribunal 12The Tribunal had before it a large number of documents. I will list them: statement by Ms Earlam, Principal Guardian, Office of Public Guardian, and the case officer, made 11 October 2012, which had numerous attachments dealing with the recent care history of Mrs R, and included aged care assessments; Ms Earlam's file note relating to a visit to Mrs R two days before the hearing, 12 November 2012, recording her reply to the possibility that she might move to South Australia; assessment undertaken on 5 November 2012 by Mr W McClean; statement by the second daughter, C, dated 10 October 2012, with various attachments including the Resident Agreement relating to Mrs R's care at the facility; and statement by the third daughter, J, dated 10 October 2012 (being the later of the two filed with the Tribunal). 13Mr Dalla-Pozza appeared for the Public Guardian, and made detailed written submissions. The applicant filed a statement dated 1 November 2012 that included numerous annexures, primarily photographs of her mother's physical condition and her bedding arrangements, and information relating to the facility at Stansbury. 14Mr Dalla-Pozza and the applicant made oral submissions. The two sisters attended the Tribunal, and were available to give evidence but were not required by the applicant. Ms Earlam gave evidence and was cross-examined. Relevant Principles 15The Public Guardian's submissions referred to the general principles set out in s 4 of the Guardianship Act. They inform the making of decisions in relation to people under guardianship. Section 4 provides: 4 General principles It is the duty of everyone exercising functions under this Act with respect to persons who have disabilities to observe the following principles: (a) the welfare and interests of such persons should be given paramount consideration, (b) the freedom of decision and freedom of action of such persons should be restricted as little as possible, (c) such persons should be encouraged, as far as possible, to live a normal life in the community, (d) the views of such persons in relation to the exercise of those functions should be taken into consideration, (e) the importance of preserving the family relationships and the cultural and linguistic environments of such persons should be recognised, (f) such persons should be encouraged, as far as possible, to be self-reliant in matters relating to their personal, domestic and financial affairs, (g) such persons should be protected from neglect, abuse and exploitation, (h) the community should be encouraged to apply and promote these principles. 16The Public Guardian saw as most relevant to this case: (a) (the best interests of the person under guardianship), (d) (the person's views as to what was appropriate) and (e) (the preservation of family ties). The applicant agreed as to the relevance of these matters. Her case also raised the issue of protection from possible neglect (g). Consideration 17Until recent years, Mrs R had lived all her life at Marks Point and Belmont in the Lake Macquarie region of the Central Coast. The family home at Belmont has now been sold, so as to release funds for her care. The applicant's younger sisters also live in the Lake Macquarie region, respectively at Chain Valley Bay and Charlestown. 18The facility is in the southern part of the region, about 15 kms south of Chain Valley Bay and about 30 kms south of Charlestown. Mrs R is familiar with Norah Head. She and her husband had a family holiday shack there for many years. 19Mrs R's care needs have been classified on either side of the 'low'/'high' range by recent aged care assessment reviews. Ms Earlam saw the classifications as indicating that she is now border-line 'high'. She considers that Mrs R has settled in satisfactorily to the Norah Head facility. She has now been there for five months. 20The Public Guardian, like the younger sisters, considers that the preservation of family ties is served by her remaining in the Lake Macquarie region. 21Ms Earlam referred to, what she saw as, Mrs R's consistent expression of a wish to remain in the Lake Macquarie region though acknowledging that she was happy to make visits to South Australia. On the other hand, the applicant has consistently claimed that her mother is prepared to move outright. Ms Earlam visited Mrs R two days before the hearing, and noted her reply when asked whether she would be prepared to move to South Australia. In my view, the reply as noted is unclear. 22However I am satisfied from the file notes of the Public Guardian, from what is recorded in Guardianship Tribunal decisions and from the statements of the younger sisters that Mrs R's clear preference has been to remain in the Lake Macquarie region, while not ruling out the possibility of visiting South Australia. 23The strongest evidence the applicant had of the alleged inadequacy of the facility were photographs she made during a visit in September 2012. They showed a poor state of management of her mother's bedding needs. Mrs R had been provided with a mattress shorter than the bed, the bed was a metal one, and there was an exposed gap between the end of the mattress and its coverings and the end of the bed. 24The applicant is a registered nurse, who has worked in aged care facilities. She criticised the existence of the gap, the danger that might present for passers by (mistaking where the bed ended) and the fact that the bed was of such a design that it needed to be made up manually. She also criticised the way the mattress butted up against the wall. She noted that her mother's room did not have any chairs that were good for posture; the photograph showed a sofa lounge type of chair, and nothing else. She also referred to the presence of stained sheets, and saw that as indicative of lack of attention to her mother's needs. 25In reply, her sister, C, explained that this problem had since been addressed by the facility, first by placing a foam segment between the end of the mattress and the end of the bed, and second by taking steps to have the bed replaced. She also said that the room now had a good quality recliner. She referred to features of the facility which she saw as positive - its spacious outdoor areas and garden, and its relatively well lit rooms. She compared these aspects favourably with the Belmont facility which she knew. She and her sister, J, both had jobs in hospitals. 26Ms Earlam considered that the hygiene criticisms were overstated, and had to be seen in the context of the busy situation of care facilities of this kind. She did not think one could generalise in the way the applicant sought to do. 27She had visited the facility regularly, and was satisfied with its standards. Similarly the younger sisters referred to the frequency of their visits (in each case two to three times a week), and indicated they were satisfied with the standards. 28The applicant countered that situations like the ones she saw on her visit ought not arise and ought not need to be the subject of complaint to get addressed were the facility being managed to good standards. She spoke positively of the standards at Stansbury and drew attention to its brochures showing that it used electric beds, and had many services in advance of those offered at Norah Heads. She had inspected the Stansbury facility. 29On the other hand, the applicant agreed with the Public Guardian that the staff at the facility were good, and friendly, and treated her mother well. 30In my view there was a basis, in the photographs taken in September, for concern over such basic matters as appropriate bedding, and appropriate chairs. Further, on the face of the material presented to me, the Stansbury facility does seem to offer a higher standard, perhaps not surprisingly so given that it charges higher fees than the present home. The applicant acknowledged that it charged higher fees, though the extent of the difference is not in evidence. As I have noted, Norah Head has taken steps to address the concerns revealed by the photographs. 31The possibility, which I regard as a reasonable one, that Stansbury is more modern, has greater ambience and has a better range of services, is not enough to justify a move as radical as that proposed - to uplift a woman in her old age from the part of the country in which she has made her life, and where the majority of her immediate family live, to South Australia. I agree with the Public Guardian that the case would need to be quite compelling to endorse such a move. 32The applicant said that she would welcome her sisters on visits to South Australia and ensure that they retained contact with their mother. While I accept the genuineness with which she made the offer, it seems to me that this arrangement is not likely to work out so well in practice. There is a documented history over recent years of real conflict and tension between the applicant and her two sisters over the issue of their mother's care location; and the material before me reflected that conflict. 33Ms Earlam impressed me as having a close knowledge of Mrs R's case, and as maintaining regular contact. She was in a good position to make a judgment about what is best for the mother. Her opinion was that the mother was settling in well to her new circumstances, and that any move now would be disruptive and not justified. She was mindful of the concerns that had been raised about the facility's quality of care, and that in the recent past it had had an accreditation issue. She was satisfied that it was providing a good, adequate level of care. 34As to the relative merits of the Norah Head facility versus Belmont, there was insufficient material before me to form any considered view. The material mainly referred to Norah Head, and, as I have noted, Ms Earlam and the two sisters were positive in relation to its general standards, with Ms Earlam offering, as I see it, an informed view from outside the immediate family founded on experience. 35In my view, the factors to which I have referred all favour strongly maintenance of the status quo. Order Decision under review affirmed. 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: 29 November 2012